Hovey v. Mayo

Tenney, C. J. This is an action at common law, to re — 332 — cover damages against the defendant, who at the time of the alleged acts was the street commissioner of the city of Hallowell, for digging down the street in front of the plaintiff’s house and lot, to which it is admitted he had title. The refusal of the court to give to the jury the instruction first requested for the defendant, and the general instructions given, authorize a verdict for the plaintiff in this action, upon certain findings of facts. Exceptions were taken by the defendant, the verdict being against him, for the refusal to instruct as requested, and to the instructions given unfavorable to him. Where an existing street or road is dug down, to the injury of the owner of land adjoining, it is not an alteration, within the meaning of the statute, which will entitle the owner of land to damage. And if a highway surveyor or commissioner of streets dig down a street or road, with discretion, and not wantonly, no action at common law or under the general statute of the state can be maintained. Callender v. Marsh, 1 Pick., 416; R. S. of 1841, chap. 25, sec. 1, and ref.; Brown v. City of Lowell, 8 Met., 172. It is a well established principle, that when a new power and the means of executing it are given, by statute, the power can be executed in no other way. Andover and Medford Turnpike v. Gould, 6 Mass., 40; Bangor House Proprietary v. Hinkley, 3 Fairf., 385; Boston v. Shaw, 1 Met., 130. By the statute of 1846, chap. 216, the power is given to the owner of land, adjoining a road or street, in any city or town, to obtain damages, by reason of the road or street being raised or lowered, by any commissioner or surveyor of highways, and the mode is provided by which the damages can be recovered. It is undoubtedly true, that this provision of the statute of 1846 does not extend to cases where the street or road has been cut down or raised by the commissioner or surveyor of highways, in a manner altogether unauthorized; but it contemplates a case where an injury is done to the proprietor of land adjoining the street or road, by the legal action of — 333 — the commissioner, &c., in cutting down or elevating the same. No action can therefore be maintained against the defendant, for acts complained of, in causing or permitting the street in question to be graded, if these acts were caused or permitted in the exercise of an official discretion, and not wantonly. Whether they were done in the proper discharge of his duty as street commissioner, may depend in some measure upon the authority under which he may have acted. It appears from the arguments of counsel, as well as from the instructions of the judge at the trial, that the acts which were the foundation of the suit were subsequent to the votes of the city council of the 2d and the 22d of July, 1853. By the latter, the contractor to construct the city wharf had authority to grade the street, under the direction and superintendence of the street commissioner, subject to certain conditions, liabilities, and restrictions. By sec. 4 of the city charter of Hallowell, the executive powers of said city generally, and the administration of police, with all the powers of the selectmen of Hallowell, shall be vested in the mayor and aldermen, Ac. All other powers now vested in the inhabitants of said town, and all powers granted by this act, shall be vested in the mayor and aldermen and common council of said city, to be exercised by concurrent vote. By sec. 7, the exclusive power of laying out streets, Ac., is given to the city council; and they shall in all other respects be governed by and be subject to the same rules and restrictions as are by law provided in this state, for the regulating of public highways and repairing streets. By R. S. of 1841, sec. 75, towns may raise money as they may deem necessary, in making repairs upon highways and town ways, and the same shall be expended for such purposes, by the selectmen. It follows from the provisions of the city charter and the general statute referred to, that the city council are authorized to raise money to repair streets, and to expend the same — 334 — in furtherance of that object. And the power to do so, and even to direct the street commissioner to cause streets to be graded, if done for the purpose of improvement, is not denied by the plaintiff’s counsel. The city government having the power to raise money with which to repair streets and roads, it cannot well be contended, that they have not the power to make such repairs, when, instead of payment from the treasury therefor, compensation can be made from the materials taken from the street, in the very process of making the improvement. - It is insisted that the city council cannot allow earth to be removed from a street, to the injury of the owner of land adjoining, for the purpose of enabling the person making the removal to derive a benefit therefrom, and for this purpose only. It may well be doubted whether the city council have that power, when the record of the vote itself shows that such was the whole design; It has no power over the land of the street beyond that of making it in all respects what it regards as proper in a public street. But the grading of streets is often regarded as a process very material, in putting them in a condition to be safe and convenient for travelers. And in making the repairs in streets and roads, in the city of Hallowell, under its charter, the power is given to the corporation through its officers to determine what repairs shall be made j and so long as the city council therein act within the scope of its authority, its judgment cannot be set aside by a jury in a suit at law. By the vote of July 22d, 1855, it is manifest that the city council designed that Water street should be graded. If the means contemplated in the order, by which this improvement was to be effected, was not illegal or beyond the power of the city government, it was obviously an order which they had authority to pass. Whether the vote shows an attempt to exceed the power conferred on the city council, is for tho court to decide, from the votes themselves; and therefrom it is not perceived that it transcended its legal limits. It is insisted that the city council had no authority to — 335 — permit Stoddard to cut down the street and to take the earth removed to the city wharf; and hence, that the defendant, in connecting himself with one without power to do the acts complained of, was a wrong doer. If the order to cause the street to be graded was passed, within the scope of the authority of the city council, it had the right to employ agents to carry it into effect; and Stoddard, being under the direction and supervision of the street commissioner could be employed as that agent as well as any other. And as we have seen, the mode of receiving compensation for his services in grading the street is no objection to his employment. It was no part of the duty of the street commissioner, when acting under an order of the city council, passed within the scope of its authority, to judge of the object of that body, and as ho found the object to be legitimate or otherwise, according to his own standard, to carry the order into effect, or to disregard it. Nor was the purpose of the street commissioner, in giving directions, and supervising the grading of the street and the removal of the earth to city wharf, to make him liable or not, where his action was confined to the execution of the order. The conclusion is, that the instruction requested and refused, should have been given ; and that the instructions unfavorable to the defendant were erroneous. The question put to a witness, who was one of the aldermen of the city at the time of the order, as to his purpose in favoring the alteration in the street, was properly excluded. The purpose of one member of a corporation, may be a very different thing from the purpose of the corporate body, in passing an order, and the purpose of the order when passed under full authority, can have no legitimate effect upon the defendant when in the execution of the order, much less the purpose of one of the members of the board of aldermen. The question was properly excluded. The value of the plaintiff’s premises does not appear to be material in fixing the damage done to him. The trouble arising from the cutting down of the street, and the expense — 336 — of making the house and lot accessible therefrom, cannot depend upon the value of the premises. And there is nothing in the case tending to show that the injury to the premises was such that it was deemed necessary or expedient to abandon them. This question was improper. Exceptions sustained and a new trial granted.