75 Vt. 76 | Vt. | 1902
This is case for negligence in leaving .improperly lighted and guarded an open ditch in a highway, into which the plaintiff fell, dug for the purpose of talcing up disused water pipe, to which the defendant acquired title under No. 190 of the Acts of 1894, annexing a part of the city of Rutland to the town of Rutland, and providing that the public
The court overruled defendant’s motion for a verdict, treated the act as authorizing the town to secure to itself the value of the property thus transferred, and charged that if the town was digging up the pipe to- be used for highway purposes, it was not liable, however negligently the work was done; but if it was digging it up without reference to- its duty to the public regarding highways, but for the purpose in the first instance of converting it into money for the benefit of its treasury, it would be liable, if the case was otherwise made out.
The defendant says it was error to overrule its motion, and to submit the case to the jury, for that the evidence did not tend to show that the pipe was being dug up to sell, but only to be used for highway purposes; and for that the act conferred upon the town no authority to use the pipe for its private gain and advantage, nor for any purpose outside of its governmental agency.
The distinction drawn by the charge is well settled, namely, that municipal corporations proper are not liable when acting in their public and governmental capacity, unless made so by statute; but are liable when acting in their private and nongovernmental capacity, the same as corporations aggregate and natural persons. But the question here is whether the defendant was acting in its private and non-governmental capacity in digging up this pipe for the purpose in the first instance of converting it into- money for the benefit of its treasury. There were thirty-seven or thirty-eight lengths of it in all, about 450 feet, some of it 8-inch, and some of it 6.
In Welsh v. The Village of Rutland, 56 Vt. 228, 48 Am. Rep. 762, it is said that when municipal corporations are exercising private franchises, powers, and privileges belonging' to them for their corporate benefit, or are dealing with property held by them’ for their corporate advantage, gain, or emolument, though inuring ultimately to the benefit of the general public, they are liable for negligent exercise of such powers the same as individuals are.
There is nothing in the case at bar to show that the defendant asked to have this territory annexed to it, but for aught that appears it was done without its consent and against its will. The act dealt with the town in its public and governmental capacity, and not otherwise, for all its provisions were compulsory upon it; and the town took the territory in the same capacity, and could have taken it in no other; and the pipe, being a mere incident of the transaction, followed the principal, and the town took that in its public capacity, for the State does not force things upon municipalities in their private capacity, but waits to be asked to confer them. Indeed it has been held that the State cannot do that. In People, ex. rel. Board of Park
Now to say that the town, having been compelled to take and pay for this pipe in its public capacity, is to be treated as holding it in its private capacity mierely because, having no other use for it, we may suppqse, it intends to sell it in order to reimburse its cost, would be changing the legal relation of the town to the property, and making a matter of public concern into a matter of purely private concern, and quite over-leaping the true principle of liability stated in Winn v. Rutland.
In Bates v. Bassett, 60 Vt. 530, 15 Atl. 200, the town' of Barre, having built a new town hall, repaired its old town hall for renting, having no other use for it; and it was held that it might lawfully do that, and raise a tax to pay for it, it not being its primary object to invest money in buildings to rent, but only to make the best and most advantageous use of property already on hand. The principle of that case is applicable here, and is decisive of the case in favor of the defendant, and therefore its other exceptions need not be considered.
Reversed and remanded.