Ham v. Inhabitants of Wales , 58 Me. 222 ( 1870 )

Appleton, C. J.

This is an action of the case against the defendants for an injury occasioned by reason of an obstruction suffered to remain upon the highway.

The instruction, as to notice, was as follows : “ That notice of a defect to any inhabitant of the town, of sufficient intelligence to know and appreciate the danger, and for a sufficient length of time to enable such person, by the use of due diligence, to remove it, or to give notice to other inhabitants of the town of its existence, so as to enable them to remove it, if the person, to whom the defect was first known, was not a competent or suitable person to do it, was all that the law required.”

A town is not instantly liable when an obstruction is placed upon, or a defect arises in an highway. Towns are only liable after reasonable notice. By the decisions, notice to an inhabitant is notice to the town. But after notice, the obstructions are to be removed or the repairs to be made by the appropriate officers of the town in a reasonable time. There is no duty upon an inhabitant, not a town officer, perceiving a defect or want of repair, at once to remedy it. The repairing of defects or the removal of obstructions is, or may be, a work of more or less labor, and deserving more or less compensation, which an inhabitant is not bound to do gratuitously. The statute provides by whom the removal of obstructions and the repairs of defects are to be made.

The instruction given imposes the obligation upon the person, perceiving an obstruction or defect at once — as soon as by due diligence it can be done — to remove the obstruction or repair the defect, or, if he is not competent to do it, to require the aid of other inhabitants, who will be bound to do it. It places the duty upon the inhabitant perceiving the obstruction or defect, or those notified by him. But the law places the obligation upon the officers of the town, after reasonable notice, which is a very different thing. The neglect of duty must be the neglect of the town, or its officers, after notice to one of its inhabitants, and after a reasonable, time has elapsed in which repairs might have been made or obstructions removed.

The obligation is upon the town to repair. The neglect is of the town in not repairing. The obligation to repair is not upon the inhabitant perceiving the defect, nor is the town guilty of neglect for his not personally making the needed repairs.

Exceptions sustained.

Cutting, Kent, Dickerson, IJ arrows, and Danforth, JJ., concurred. Walton, J., did not concur.