Jackson v. City of Portland , 63 Me. 55 ( 1873 )

Walton, J.

Damages occasioned by the location of the outfall of a public drain in the city of Portland are to be assessed in the same manner as for the location of a public street. Public Laws of 1851, c. 77, § 1. Damages for the location of a street are to be assessed in the first instance by the city council; but any one aggrieved by their decision may appeal and have the damages assessed by a committee or reference, if the parties so agree, or by a jury. City charter, § 9; Special Laws of 1863, c. 275.

It will be noticed that the damages here referred to are such only as are occasioned by the location, not the improper or imperfect construction, of the street or outfall in question. The location is one thing; the construction is another. It is the damage occasioned by the location only that can be recovered in the manner here pointed out. The damage, if any, sustained by reason of an improper or defective construction must be sought for in some other form of proceeding.

• In this case the committee award $261 damage,, “caused by the deposit of filth, sand, and other substances from said sewer and outfall in the dock of the appellant, to April 1, 1873; and the further sum. of $116 annually until a cess-pool is constructed which shall receive and retain the sediment or wash coming from said drain.” This was erroneous. Their only duty was to award in a round sum the damage caused by the location of the outfall of the drain upon the appellant’s land. They had no authority to determine whether a cess-pool should or should not be constructed, and to award annual damages, to be paid in the future, till such cess-pool should be built by the city.

Exceptions sustained.

Report rejected.

Appleton, C. J., Dickerson, Barrows, Daneorth and Yirchn, JJ., concurred.