Blood v. City of Bangor

Walton, J. We do not find it necessary to inquire what the common law liability of towns and cities may be with respect to drains and sewers, for the statute law makes the city liable in this case. The E. S., c. 16, § 9, declares that “after a public drain is constructed and any person has paid for connecting with it, it shall be constantly maintained and kept in repair by the town, so as to afford sufficient and suitable flow for all drainage entitled to pass through it.” And the same section further declares that if the town does not so maintain and keep it in repair, any person entitled to drainage through it, may have an action against the town for the damage thereby sustained. And the word town includes cities. E. S., c. 1, § 4, cl. 17. It will be noticed that the duty here imposed is imperative, and the liability for its nonperformance equivalent to that of an insurer. The statute admits of no excuse. The drain must not only be constantly maintained and kept in repair, but it must be so maintained and kept in repair, that it will at all times afford a sufficient flow for all drain [156] age entitled to pass through it, or the town or city must pay the damage. To this extent the statute makes the town or city an insurer. The Exchange street sewer was a public drain. The plaintiffs’ lessor had paid the city of Bangor a hundred dollars for the privilege of connecting with it. It then became the duty of the city, not only to maintain and keep the sewer in repair, but to so maintain it and keep it in repair, that it should at all times afford sufficient and suitable flow to carry off all water entitled to pass through it. That the city did not so maintain it and keep it in repair is admitted. On the contrary, the city itself, through the joint action of its common council and board of aldermen, caused two other public sewers to be connected with it, by which the flow of water during severe showers was so increased that the drain could not carry it off, and the plaintiffs’ cellar was three times flooded within a month. A drain can be as effectually choked by an excess of water as by any other material. If more water is turned into a drain than it can carry off, the excess is aB sure to flow back, as if the drain was choked with stones or sand. The showers which overcharged the drain, and caused the water to flow back into the plaintiffs’ cellar were undoubtedly severe; but sooner or later, such showers are sure to come, and must be provided for. The fault was not in the showers, but in requiring more work of the sewer than it was capable of performing; and for this the city was responsible, made so, not by 'the principles of the common law, but by our statute law. Judgment for plaintiffs for the amount agreed upon, $330.60. Appleton, C. J., Dioxerson, Barrows, Yirgin and Peters, JJ., concurred.