Estes v. Inhabitants of China , 56 Me. 407 ( 1868 )

Danfobth, J.

— This action is founded upon an alleged neglect on the part of the defendants to keep in repair a drain, which they had previously built across a highway; and the only question submitted, is whether the facts set out in either count in the writ are sufficient to maintain the suit.

In this case there can be no actionable neglect unless we first find an obligation to repair, and this obligation depends upon the prior one to build. An examination of the cases cited by the plaintiff will show that in every one there was an obligation to build the drain, imposed by the principles of the common law, or by statute. In the case of statute drains, the obligation to build is imposed by the proper and constituted tribunal in the exercise of judicial authority, .while the duty to construct and keep in repair is a ministerial duty. At common law, the duty to build drains can only be imposed by the fact that the highway would otherwise obstruct the flow of water in its natural channel, or cause it to collect and remain upon land to the injury of the owner.

In this case we find no allegations of the original necessity of the drain. It does not appear that the road was any obstruction to water accustomed to flow there, or caused the water to collect or stand there in any manner different from what it had previously done. There is no allegation inconsistent with the fact that the town, without any obligation whatever, had constructed the drain for the accommodation of the plaintiff, and that he availed himself of the convenience thus afforded to drain his land. Neither does it appear that the plaintiff is in any worse situation than if the drain had not been built. In this state of facts, there can be no reason why the town may not abandon it whenever it chooses. The fii-st count shows no cause of action.

The second count is founded upon the R. S., c. 16, §§ 4 and 9, and would seem to be equally defective with the first. The allegation here is that the inhabitants of the town caused the drain to be constructed. The statute, § 2 as amended in 1860, c. 158, provides that the municipal officers may construct public drains where they shall deem it necessary for public convenience or health; thus requiring the exercise of judicial discretion and judgment on the part, not of the town or its inhabitants, but of those particular officers. True, it does not appear that this drain was not constructed before the passage of the Revised Statutes. But, if it were so, then the Act of 1844, c. 94, was in force, which still more clearly requires the same discretion and judgment. Again, by the statute, § 4, application to enter and connect is to be made to and the permit given by the municipal officers. It does not appear that any application was made, and it is alleged that the permit was given by the inhabitants. The statute further requires that both the permit and application shall be in writing, and it does not appear that either of them were so. This differs from those cases where it has been held unnecessary, in an action upon a contract within the statute of frauds, to allege the promise in writing. In such a case, the promise, though not in writing, is not illegal, and the defendant waives the statute unless he sets it up in his pleadings. Lawrence v. Chase, 54 Maine, 199.

This is an action sounding in tort, and the defendants cannot be found guilty, until all the facts necessary to constitute their guilt have been affirmatively alleged and proved.

In this case, the permit was given to the plaintiff’s grant- or, and, unless in writing, does not run with the land. It clearly follows that these defendants cannot, under the statute, be liable to this plaintiff, unless the application and permit are in writing, and the application, as required by the statute, and for obvious reasons, must " distinctly describe the land to which it applies.” Exceptions sustained.

Appleton, C. J., Kent, Walton and Barrows, JJ., concurred. Tapley, J., concurred in the result.