Green v. City of Portland , 32 Me. 431 ( 1851 )

Shepley, C. J.

The railway alleged to be a nuisance was not built for the accommodation of the public, but for the use of the persons, who built and occupied it exclusively for their own private, benefit. No question is therefore presented, whether a railway for the accommodation of the public travel and business, built by the consent of a town or city upon part of a highway or street can be regarded as a nuisance.

Admitting the railway described in the declaration to be a public nuisance, and that the plaintiffs have suffered special damage by its erection and continuance, the question presented is, whether the city is responsible for the damages suffered.

An action of tort may be maintained against a corporation for an act done by its direction or procurement or sanctioned by it. Thayer v. Boston, 19 Pick. 511.

This railway was not built with the funds of the city, or by its order, or by its officers. The city has received no rent, income, or benefit from it. It has no other connexion with it, than to grant the owners of it a license to build and continue it on its streets. It might well take the bond of indemnity to protect it from damages, for which it would be liable by statute for direct injuries thereby occasioned to the persons or property of individuals. The fact, that the city took such a bond, does not increase its liability, or make it responsible to those, who may in some other manner have suffered damage from it. It does not even impliedly authorize them to do any damage to others.

The license amounts to no more, than an authority, so far as the city was concerned, to do the acts for their own benefit and upon their own responsibility, without being subject to interruption or complaint by the city. If one person license another to pass over his land without compensation, for his. own convenience or benefit, he does not thereby constitute him his agent for that purpose. Nor would he thereby become liable to third persons for injuries suffered by them in consequence of the acts done under such license.

The city was not authorized by statute or by the ninth section of the act in addition to its charter, approved on February 9,1833, to grant such a license. The power given by that section extends no further than to authorize persons or corporations to place in any street “ any materials for making or repairing any street, sidewalk, crosswalk, bridge, water-course, or drain, or for erecting, repairing, or finishing, any building or fences.”

If it had power to grant such a license, it must have derived it from its general powers to regulate its own corporate rights and interests. And those powers would not authorize it to make itself responsible for the acts of others, from which neither it, nor its citizens derived any benefit, and which were not done for the accommodation of the public travel and business.

Upon the case as presented, the city does not appear to be responsible for any damages, which the plaintiffs may have suffered. ' Plaintiffs nonsuit.