Seele v. Inhabitants of Deering

| Me. | Apr 5, 1887

Virgin, J.

Assuming — what the demurrer admits — the allegations in the declaration to be true, it is obvious that a most unmitigated nuisance has been created on and about the premises of the plaintiff to his great injury; and were the defendant an incorporated city, its alleged acts would constitute prima facie such a cause of action as might render it liable in the absence of any justification (Cumb. & Oxf. Can. Co. v. Portland, 62 Maine, 505) ; but we have looked in vain through both counts for any allegations which in our view render the defendant town liable for the alleged acts which have resulted so injuriously to the plaintiff’s property.

The authority and liability of our quasi public corporations known as towns as distinguished from municipal corporations incorporated under special charters, are generally only such as are defined and prescribed by general statutory provisions. Some things they may lawfully do and others they have no authority for doing. To create a liability on the part of a town not connected with its private advantage, the act complained of must be within the scope of its corporate powers as defined by the statute. If the particular act relied on as the cause of action be wholly outside of the general powers conferred on towns, they can in no event be liable therefor whether the performance of the act was expressly directed by a majority vote or was subsequently ratified. Morrison v. Lawrence, 98 Mass. 219" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/morrison-v-city-of-lawrence-6415186?utm_source=webapp" opinion_id="6415186">98 Mass. 219.

So a town is not liable for the unauthorized and illegal acts of its officers even when acting within the scope of their duties. Brown v. Vinalhaven, 65 Maine, 402; Small v. Danville, 51 Maine, 359; but it may become so when the acts complained of were illegal but done under its direct authority previously conferred or subsequently ratified. Woodcock v. Calais, 66 Maine, 234 and cases there cited.

The difficulty with the counts is that the allegations therein do not bring the acts complained of within the scope of the corporate powers of the town, or aver that they were performed by its officers in the execution of any corporate duty imposed by law upon the town. Anthony v. Adams, 1 Met. 284. There is no intimation that the acts were done in connection with the making or repairing of any highway or town-way which the law imposed upon the town, or in relation to any drain or sewer laid out or attempted to be laid out by the town authorities under R. S., c. 16, for which it might under certain circumstances become liable. Estes v. China, 56 Maine, 407; Franklin Wharf Co. v. Portland, 67 Maine, 46; or in emptying a common sewer upon the property of the plaintiff outside of the public works, as in Propr's L. & C. v. Lowell, 7 Gray, 223. But the principal allegations are that the defendants "wrongfully opened and dug a ditch across the main road . . in Deering and into an artificial ditch in the rear of a tripe and bone boiling establishment from which a cess-pool of stagnant and filthy water was then and there collected and then and there continued said ditch across the land of Samuel Jordan two hundred feet in the direction of the plaintiff’s land and out of the natural course of said water and on to the plaintiff’s land and along through the same into his mill pond.”

It is quite evident that a town, independent of any statutory authority, has no corporate power to dig ditches across another’s land. Such an act is ultra vires ; and any express majority vote based on a proper article in a warrant calling a meeting of the defendants directing such acts, would create no liability oh the part of the town. Cushing v. Bedford, 125 Mass. 526" court="Mass." date_filed="1878-10-17" href="https://app.midpage.ai/document/cushing-v-inhabitants-of-bedford-6419419?utm_source=webapp" opinion_id="6419419">125 Mass. 526; Lemon v. Newton. 134 Mass. 476" court="Mass." date_filed="1883-03-01" href="https://app.midpage.ai/document/lemon-v-city-of-newton-6420905?utm_source=webapp" opinion_id="6420905">134 Mass. 476.

Whether or not the declaration can be amended so as to make the town liable, we cannot in the absence of a knowledge of the facts now determine.

Exceptions overruled.

Peters, C. J., Libbey, Emery and Haskell, JJ., concurred. Walton, J., did not sit.