Penley v. City of Auburn , 21 L.R.A. 657 ( 1893 )

Haskell, J.

A street in Auburn was incumbered on one side by buildings projecting into it. On the other side, the abuttors deeded a narrow strip of land to the city as a consideration for its covenant to remove these buildings from within the street and keep the same open and wrought its whole length, including the strip of land conveyed to it. ■ In a suit upon the covenant, it is objected that it was ultra vires and is void.

The objection is well taken. If public convenience and necessity required the street to be kept open its whole width, it was the duty of the city to keep it so. If not, the city was neither required to do it, nor could it execute a valid covenant to do it. Whatever its legal duty was, it was bound to do, and could bind itself to do no more.

No case has been cited that holds a municipal corporation liable to an individual, on its covenant to perform a municipal duty required of it by law ; and it is common learning, that the covenant of a business corporation, even, to do an act beyond its chartered powers is void, as ultra vires. Davis v. Railroad, 131 Mass. 258 ; Thomas v. Railroad, 101 U. S. 71 ; Green Bay R. R. v. Union Steamboat Company, 107 U. S. 98-100 ; Bailey v. Methodist Episcopal Church, 71 Maine, 472.

The law imposes a duty upon municipal corporations to keep their roads and streets so that they shall be safe and convenient for travellers, under penalty of indictment and fine. R. S., c. 18, § 52. That is their whole duty. The law requires no particular width for the travelled part of the way. That is governed by the necessities of travel in each particular case. Baldwin v. Bangor, 36 Maine, 518 ; Bryant v. Biddeford, 39 Maine, 193; Farrell v. Oldtown, 69 Maine, 72; Wellman v. Dickey, 78 Maine, 29.

The traveller may use any part of the way to travel upon,, and, if obstructed in the exercise of that right, has a remedy against the person unlawfully placing the obstruction there. Dickey v. Maine Telegraph Co. 46 Maine, 483; Parsons v. Clark, 76 Maine, 476.

If the way be incumbered by buildings or fences or othewise, so as to create a common nuisance, it may be indicted and abated; and if an individual suffers any special and peculiar damage to himself from such nuisance, beyond that suffered by the public, or damages, if the nuisance be private, the law gives him a right of action therefor. R. S., c. 17, § § 5-11, 12, 13 ; Dickey v. Maine Telegraph Co. supra; Brown v. Watson, 47 Maine, 161; Davis v. Weymouth, 80 Maine, 307; Holmes v. Corthell, 80 Maine, 31; Jackson v. Castle, 80 Maine, 119 ; S. C. 82 Maine, 579.

The duty of the municipality is commensurate with the necessities of public travel; when that is served and the way is made safe and convenient therefor, municipal liability ends. If the way is then incumbered to the nuisance of individuals or the public, remedies against others than the municipality must be sought.

In the case at bar, the plaintiffs’ assignors had conveyed land to the city as a consideration for its covenant in suit, that is adjudged void as ultra vires. The plaintiffs have been guilty of no fraud, and are not in fault. The land was conveyed, therefore, without consideration, and should be returned. Morville v. American Tract Society, 123 Mass. 129 ; Chapman v. County of Douglas, 107 U. S. 348; Salt Lake City v. Hollister, 118 U. S. 256-263. FIxceptions sustained. Demurrer sustained.

Peters, C. J., Walton, Libbey and Foster, JJ., concurred.