Goddard v. Inhabitants of Harpswell , 88 Me. 228 ( 1895 )

Emery, J.

The defendant town was required by law in consequence of a decree of the county commissioners, affirmed by this court upon appeal, to open and build a certain town way or road within the town. The road was afterward built and certain stone of the plaintiff within the location of the road was appropriated and used in its construction. The plaintiff brought against the town this action of trover for that conversion of his stone.

To connect the town with the conversion of the stone, he adduced the following evidence: (1) a vote of the town "to raise three hundred dollars by assessment, and allow the selectmen to hire a sum not exceeding five hundred dollars,” to pay "for land damages and to build the road,” (viz: the road in question) : (2) the acts of three men, the selectmen of the town, in advertising for proposals, and making a contract with one Coombs of Brunsw'ick, for building the road ; (3) the direction by the selectmen to the contractor to make use of the plaintiff’s stone, as material for the road ; (4) the appropriation and use by the contractor of the stone under that direction; (5) the approval by the town auditor of a charge by the selectmen for advertising for proposals, and of a charge for the five hundred dollars hired.

It does not appear whether the selectmen at the time of their action were also either highway surveyors or road commissioners as they might lawfully have been. If they were, then as to opening and building this road, they were public officers acting for the public, and not mere town agents acting for the town. In such case, though the town appointed them and furnished the money for them to expend, it is not responsible for their unlawful acts. Goddard v. Harpswell, 84 Maine, 499; Hennessey v. New Bedford, 153 Mass. 260. In the absence of evidence to the contrary, in an action against the town, it is to be presumed that they were acting as such public officers.

If, however, they were not such officers, but were acting, or assuming to act, as selectmen and agents of the town, then it does not appear that the towm ever authorized them to do more in relation to this road than to hire the necessary money. The vote of the town put in evidence went no further. The approval by the auditor of their charges for advertising for proposals Avas not a ratification by the to\vn of their direction to the contractor to take the plaintiff’s stone. Their general poAvers as selectmen do nohsupersede those of highway surveyors or road commissioners. Without a vote of the town empowering them as selectmen or as individuals to take the duty of opening and building this road out of the hands of the regular road officers, they cannot bind the town by their contracts or torts in the premises. Tufts v. Lexington, 72 Maine, 516; Bryant v. Westbrook, 86 Maine, 450; Hennessey v. New Bedford, 153 Mass. 260. No such Amte is shown.

Motion sustained. Verdict set aside.