Peck v. Inhabitants of Ellsworth , 36 Me. 393 ( 1853 )

Shepley, C. J. —

It is contended, that the culvert, in which the free flow of the water was obstructed, occasioning it to flow into the plaintiff’s cellar, constituted a part of the highway; and that the defendants, as the owners of that highway, are liable for the damage thus occasioned by the water, by the provisions of the statute, c. 25, § 69.

Such a construction of that section must be made, that when considered in connexion with the fifty-seventh section, they may be in harmony, as they were clearly intended to be, with each other and counterparts of the same enactment. The latter section requires the ways named to be kept in repair, so that they may be safe and convenient for travel. When the former section provides for the recovery of damage suffered “ through any defect or want of repair” of the ways; the meaning is, when he shall suffer it, through any defect or want of repair, that will prevent the way from being safe and convenient for travel.. It was-not intended to render towns liable in that mode for damages occasioned by the construction of ways or bridges, which were in a safe and convenient condition for travel. Nor for damages occasioned by any subsequent defect or want of repair, while the ways continued to be safe and convenient for travel. Towns are made liable for injuries by the statute, only to the extent of its provisions. Reed v. Belfast, 20 Maine, 246. The present case is not embraced by those provisions.

Towns may by the common law be liable for injuries occasioned by their acts, under such circumstances as would render an individual liable, if he had performed the acts. Thayer v. Boston, 19 Pick. 511. To render towns liable in such cases, the injury must be occasioned by the fault either in acts or neglects of the corporations. Green v. Portland, 32 Maine, 431. in this case the injury does not appear to have been so occasioned. Plaintiff nonsuit.

Tenney, Rice, Hathaway and Appleton, J. J., concurred.