Frost v. Inhabitants of Portland

Weston J.

delivered the opinion of the Court.

From the evidence, which satisfied the jury, the injury complained of was occasioned by a deposit of bricks in the street, intended to be used in making and completing a side-walk. The effect of the permission, therefore, given by the selectmen of Portland, under a by-law of the town, to the contractor employed in building an addition to the court-house, near where the accident happened, to use a third part of the street, it is unnecessary in this cause to settle. Had the injury arisen from deposits placed there by the contractor, it would have been necessary to have considered that question.

The liability of towns to respond in damages for injuries of this sort, clearly arises from statute, as has been contended by the counsel for the defendants. Whether it might not have resulted from the section, imposing the duty to repair, need not be decided, as another section in the same statute gives the remedy to the party injured, in express terms.

The duty enjoined is, that all highways, townways, causeways, and bridges, lying and being within the bounds of any town, shall be kept in repair, and amended from time to time, that the same may be safe and convenient for travellers, with their horses, teams, carts and carriages, at all seasons of the year, at the proper charge and expense of the inhabitants of such town. And a remedy is given against the town for a person, who sustains damage, through any defect or want of necessary repair, in such highway, causeway or bridge. The .act must receive a reasonable construction; and time and opportunity must be afforded to towns to fulfil the duty. Thus, although 'highways are to be kept in repair, at all seasons of the year, yet if they become defective, as they often do, by reas on of causes not under their control, ■■ parts of them are often necessarily impassable, while undergoing repairs. All that can then be required is, that travellers should be warned of their danger, by a railing, or by something else which may answer the same purpose. This privilege, growing out of the necessity of the case, must be limited by it. The convenience of the public is paramount to every other consideration, except that which is essential to enable towns to discharge their duties.

It is urged that surveyors of highways, while performing the service assigned them, are the exclusive judges, how far it is necessary to incumber, for the purpose of repairing. Upon this point, they will of course exercise their discretion; as they must as to the degree or extent of the repairs, which the public convenience may require. Both in the first instance must depend upon their judgment; but both are open to public inquiry ; the one as much as the other. We are unable to perceive any difference. They determine at their peril, or at the peril of those by whom they are appointed. If a question arises, whether the duty has been performed, or whether legally performed, it must be determined as all other questions are, which arise in the course of judicial proceedings; if of law, by the court; if of fact, by a jury.

It is insisted if roads are otherwise in a state of repair, towns are not answerable for deposits or incumbrances placed upon them; but that the party injured must look to the individual, by whom the nuisance was caused. A deposit in the road as effectually destroys its usefulness, as an excavation, however occasioned. It cannot be tolerated, and must be removed. The individual may not be known, or may not be responsible. The policy of the law fixes this duty upon towns, who have officers charged with its performance. Thus every citizen has an interest, not only to prevent an incumbrance, but to hasten its removal. It is too narrow a construction, to hold that a deposit which, while suffered to remain in a road, renders it impassable, is not a defect in it. The law looks not to the cause of the defect, or to the remedies which a town may have over, or to any cumulative remedy, which the person injured may have against others. It has, for adequate reasons of public policy, imposed upon towns both the duty and the liability. Whether a bridge has been wantonly destroyed by individuals, or accidentally by fire or flood ; whether an excavation has been made by design, or by running waters; whether an obstruction in the road has happened by the unau-horized act of individuals, or by the falling of trees uprooted by the wind, the public convenience equally requires, that the necessary amendment and repairs should be speedily made.

This objection was not taken in Springer v. Bowdoinham,, 7 Greenl. 442; but if tenable, would have been fatal to the action. It is a decision directly in point; and the force of it is to be avoided only by the suggestion, that this ground of defence was overlooked by the counsel for the defendants and by the Court. In Tyler v. Weston, 3 Pick. 267, the same objection was taken, and overruled.

Judgment on the verdict.