Brown v. Towns of Fairhaven

The opinion of the court was delivered by Ross, J. This is an action to recover for damages sustained through the insufficiency of a bridge across Poultney River, which is the state line, maintained at the joint expense of Eairhaven, Westhaven, and the town of Hampton, in the state of New York, the latter bearing one-half such expense. The right to maintain such actions against towns, is wholly given by statute. No such right exists at common law. Hence, it becomes necessary to inquire what right the statute confers in a case like this. The statutes of this state are limited in their operation by the territorial limits of the state, and therefore can cast no liability upon the town of Hampton. Treating, for the purposes of this case, the towns of Westhaven and Eairhaven as liable for the sufficiency and proper repair of this bridge, the question arises, in what manner, and to what extent, are they liable under the facts shown and found by the jury in the case ? The statute conferring the right [391] of action for the recovery of damages sustained by reason of the insufficiency of a bridge maintained by two or more towns, is contained in § 41, ch. 25, Gen. Sts., and is in the following language : * * * “ And. if such damage shall accrue in consequence of the insufficiency or want of repairs of a bridge erected and maintained at the expense of two or more towns, the action shall be brought against all the towns liable for the repairs of the same, and the damages and costs shall be paid by such towns in the proportions for which they are liable for such repairs; and the court may, in its discretion, issue execution against each town for its proportion only.” This language clearly imports a joint liability, if any, to be enforced by a joint suit and a joint judgment. Neither can be sued without the other ; nor can the court render-judgment against one alone. The only discretion given to the court is in reference to enforcing the judgment by separate executions. This court has held in a recent unreported case, Pender v. Derby, in Orleans county, that a suit cannot be maintained against one of the towns alone on such liability. .¿\s the liability is joint, to be enforced by a joint suit and judgment, it follows as a logical conclusion, that the person sustaining the injury or loss, must take all the prerequisite steps necessary to charge both towns with such liability. As well might it be held that he can maintain separate suits against each town, as that he may sue both towns and take judgment against one. It is but reaching the same result by different methods. As a prerequisite to charging any town with liability, the plaintiff must notify one or more of the selectmen of such town, of his injury, or loss, and claim for damages. The language of the statute in this respect is : “ No action shall hereafter be had or maintained in any court in this state against any town for injuries received or damages sustained through the insufficiency of any highway or bridge, unless notice shall have first been given to one or more of the selectmen of the town in which the highway ox-bridge is situated.” No such notice was given to the town of Eairhaven, and the plaintiff does not claim that he is entitled to recover against that town. As-he has no right of action against that town, and as the right, if any, is the right to maintain a joint [392] action against both towns, his action fails against both. If these views of the law are correct, as we hold they are, it was error in the county court to allow the plaintiff to recover against Westhaven alone. II. There is another fact found by the jury that, we think, defeats the plaintiff’s right to recover, if he had given notice to both towns. The jury have found that the place on the bridge that caused the plaintiff’s injury, was not only beyond the territorial limits of the towns of Westhaven and Fairhaven, but beyond the territorial limits of the state. The first clause of § 41, ch. 25, of the Gen. Sts., reads: “If any special damage shall happen to any person, his team, carriage, or other property, by reason of any insufficiency or want of repairs of any highway or bridge in any town which such town is liable to keep in repair, the person sustaining such damage shall have the right to recover the same in an action on the case.” Giving this language the broadest possible construction, it creates no liability upon any town for any insufficiency or want of repairs of any highway or bridge, unless the highway or bridge is in some town within the territorial limits of the state. We know of no statute, and have been referred to none, which authorizes any town to assume the burden of building or maintaining a bridge, or any portion'of a bridge, beyond the limits of the state. As the statutes of the state cannot operate beyond its territorial limits, we are unable to see how they can cast any liability upon a town, or. give power to any town to assume any liability, for the insufficiency or want of repair of any highway or bridge beyond the limits of the state; and as the liability of towns in such cases exists only by force of the statutes of the state, the plaintiff cannot, in any event, recover for injuries received or losses sustained through the insufficiency of a highway or bridge without the limits of the state. The defendant excepted to the judgment rendered by the county court on the special verdict. We have found that judgment erroneous. It remains for this court to render such a judgment as the county court should have rendered on the verdict. Hence, the judgment of the county court is reversed, and judgment is rendered for the defendant to recover its costs.