Gilbert v. Manchester

This case comes before the court on the plaintiff's exception to the order for a nonsuit at the trial term. The question, *Page 302 therefore, is, whether there was any evidence for the jury to consider tending to show that the defendant city were liable for damages occasioned by the insufficient and defective condition of Canal street. The evidence tended to show that in the year 1841 an arrangement was made between the city, then the town, of Manchester and the Amoskeag Manufacturing Company, a corporation, by which that corporation bound themselves at all times to keep in repair suitable for use by the public, and permit the public freely to use, this same Canal street and certain other streets already made or to be made by them in said Manchester; that the negotiation for this arrangement was openly and publicly made in a town-meeting in the town of Manchester, and that by the arrangement the town, having discontinued certain highways, became entitled to have Canal street and certain other streets kept in sufficient repair and thrown open to the public use; that such covenants on the part of the corporation were made as would effectually secure the town against the expense of maintaining and repairing said streets, and bind the corporation to indemnify the town in the event of their being obliged to respond in damages to any party by reason of any defect in said streets; that in pursuance of this arrangement thus publicly made, Canal street has been thrown open to public travel, and has been used by the public as freely as other streets in the city, having all the time been kept in repair by the corporation which claimed the right to control it, claiming that it was a private street and not a highway, but always keeping within their covenant to the effect that whatever they did with the street should not be "inconsistent with the public accommodation;" that this use of Canal street has been going on uninterruptedly for thirty years or more, the street remaining substantially where it was in the beginning, and there being no evidence that the defective portion of the street where the accident happened had not been from the beginning a part of the street; that certain signs were put up by the corporation on some buildings in Canal street with the words "private-way" upon them, for the purpose of showing that the street was not dedicated to the public, but not for the purpose of warning off people from travelling upon it; that the public in general, and this plaintiff in particular, had reason to believe that Canal street was a street provided for public use by the action of the city; and that the public in general, and this plaintiff at the time of the accident, did so use Canal street. It appears to me, therefore, that the evidence tends strongly to bring the case within the ordinary principles of estoppel; and that if these facts are made out, the city of Manchester are now estopped to deny for the purposes of this action that Canal street is a highway, for any defects and insufficiencies in which they are liable as in the case of other highways. The general doctrine, as stated by Lord DENMAN in Pickard v. Sears, 6 A. E. 460, that "When one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the *Page 303 latter a different state of things as existing at the same time," has been recognized and adopted by our courts in the cases of Davis v. Handy,37 N.H. 65, Simons v. Steele, 36 N.H. 73, Odlin v. Gove, 41 N.H. 465, and Drew v. Kimball, 43 N.H. 285. In Hale v. The Union Mut. F. Ins. Co., 32 N.H. 299, it is said, by PERLEY, C. J., — "As a general rule, corporations have power to waive their legal rights, and are bound by implication and estoppels in pais like natural persons. They can claim no exemption from the operation of those rules and maxims which are established to enforce good faith and fair dealing among individuals." To this effect are Heath v. Franklin Ins. Co., 1 Cush 257; Clark v. New Eng. Ins. Co., 6 Cush. 342; Concord v. Concord Bank, 16 N.H. 29. If these views are correct, it appears to me that there was evidence for the jury to consider tending to show that the city of Manchester had so conducted themselves in regard to Canal street that they were estopped to deny that that street was a highway, for any defects or insufficiencies in which they were was liable as in the case of other highways under the statute. LADD, J., concurred.