Attwood v. City of Bangor , 83 Me. 582 ( 1891 )

Libbey, J.

This is an action on the case to recover damages for the location, construction and maintenance of an addition or. extension of a sewer in the "Ferry-way,” so-called, in the city of Bangor, with its terminus below low water mark in the Penobscot river, whereby the plaintiffs’ berth or dock was rendered of less value by reason of vessels lying at said dock being-in danger of getting aground on the end of said sewer, on the materials used in its construction, and on the sediment from the sewage coming therefrom; and by reason of noxious smells arising from said sewage, by reason of all which the rents of the plaintiffs’ wharf are decreased.

The case comes before this court for determination upon a report of the evidence. We think the plaintiffs’ title to their wharf is sufficiently proved. After describing the location of the sewer as extended, and the manner in which it is constructed, the plaintiffs state their claim for damages as follows : "That by reason of the negligent and improper location of said sewer, the terminus being in an eddy in said river, the sewage from said sewer is not carried away by the tide, and said sewage is deposited on the plaintiffs’ flats and in their dock, by reason whereof noxious and unhealthy odors arise, and said dock is being rapidly filled up by said sewage, by reason of all which the plaintiffs’ wharf is rendered of much less value in that they are deprived of large sums of money which would otherwise be paid them for wharfage by vessels and steamboats lying at said wharf.” The sewer as originally constructed leads down Union street to the shore of the Penobscot river. It discharged its sewage upon the flats above low-water mark, and at certain seasons of the year created a nuisance, to abate which the city council of Bangor passed. the following order: " That the superintendent of sewers be and he is hereby directed to cause the Union street sewer to be extended from its present terminus to low-water mark in Penobscot river.” Acting under that order, the superintendent of sewers extended the sewer not in its direct course, but by an angle placed it nearer the plaintiffs’ wharf than it would have been if directly extended. The counsel for plaintiffs contends that the extension in that manner was not authorized by the city and is therefore illegal. If that contention is correct, then, the action cannot be maintained against the city, because it was without the authority of the city. Woodcock v. Calias, 66 Maine, 234.

Independent of any evidence tending to show ratification of the acts of the superintendent of sewers, it may be doubtful if the extension was directly within the authority of the city council. But the evidence satisfies us that the city council with full knowledge of the manner in which the extension was made, ratified the act of the superintendent of sewers, so that we shall pass this objection as not affecting the plaintiffs’right, one way or the other, to recover.

It is well settled that the city had a right under the law of this state to extend its sewer across the flats of the river to a point below low-water mark. Franklin Wharf Co. v. Portland, 67 Maine, 46. In the performance of its duty to the public in locating sewers for the drainage', of the city, the city council acts judicially, and for that 'judicial act, the city is under no common law liability. But if the construction is improperly and unskilfully made, it is a ministerial act for which the city may be liable to any party injured thereby. Darling v. Bangor, 68 Maine, 108.

The plaintiffs had no remedy, then, growing out of the location of the sewer. If they are entitled to recover at all, they must show that the sewer was improperly and unskilfully constructed, and that they have suffered special injury thereby. They claim that the sewer was improperly constructed inasmuch as some portion of it is above the surface of the flats. The evidence tends to show that the fact, in regard to the manner of its construction, is to some extent as claimed by the plaintiffs. Assuming that the sewer is improperly constructed, the burden is upon the plaintiffs to show that they have been damaged thereby. The only damage which their evidence tends to prove, growing out of the improper construction of the sewer, is that it makes it more inconvenient and hazardous for vessels at certain stages of the tide to lie at one part of their wharf. They do not claim that they have suffered any special damage to vessels by reason of it. But they claim that it lessens the rental value of their wharf. To recover on this ground, they must show that the rental value of the wharf to them has been diminished, and that they have not been able to receive so much for the use of their property as they might have received if the sewer had been properly constructed. The evidence shows that the plaintiffs’ wharf was leased before the construction of the extension of the sewer, and has been in the possession and use of the lessees ever since, with no diminution of the rent to the plaintiffs. To recover on this ground, the burden is upon the plaintiffs to allege their loss of rents specially in their declaration and to prove the allegation. Plimpton v. Gardiner, 64 Maine, 360. There is an entire failure in the evidence to support this-ground of claim.

They cannot recover in this suit on the ground that the sewer permanently diminishes the value of their estate, because the improper construction is a temporary wrong liable to be removed at any time; and an action for damages may be maintained for the injury sustained by the occupant of the property, from time to time. Williams v. Camden & Rockland Water Co. 79 Maine, 543; C. & O. Canal Co. v. Hitchings, 65 Maine, 140; Dority v. Dunning, 78 Maine, 381.

A careful examination of the evidence fails to prove that any damage has been sustained by the deposit of the sewage in the plaintiffs’ dock. It does not prove that any offensive and noxious odors have arisen from it to the injury of the plaintiffs. Nor does it prove that their dock has been materially filled up by the. action of the sewer, so as to occasion any damage to the plaintiff’s property prior to the commencement of the suit.

Plaintiffs nonsuit.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.