Concord v. Burleigh

The authority of the city council to adopt the ordinances — in legal effect, local statutes — is unquestionable. G. L., c. 48, s. 10, cl. vii. The mayor's license without the concurrence of the aldermen did not authorize the defendant to move the building into or through the streets. The fact that a license by the mayor alone had been customarily given and acted upon as sufficient authority cannot avail her against the express terms of the ordinance. Fisher v. Steward, Smith (N.H.) 60, 62; Rogers v. Allen, 47 N.H. 529; Scribner v. Hollis, 48 N.H. 30.

The defendant was enjoined from placing the building upon her lot because the lot was within the limits of the fire precinct, and the ordinance forbade the erection or the placing of any wooden building thereon without the permission of the mayor and aldermen. It was her duty to obtain the required permission to put the building upon her lot, as well as permission to move it thereto through the streets, before she entered upon the work of removal, or at least before she moved it into the street. Without lawful authority she moved the building into the public highway. It made the street impassable by teams, and was a public nuisance. So long as it remained there it was practically a destruction of the highway. The plaintiffs were bound by law to restore it and make it passable, and for their neglect to do so were liable to indictment and fine. G. L., c. 74, s. 1. They were also primarily liable in damages to any traveller injured in consequence of the obstruction. G. L., c. 75, s. 1. Towns and cities, being bound by law to maintain and keep in repair the highways within their limits, have a property interest therein, and may recover damages of any person who wilfully or negligently destroys or injures the ways. Hooksett v. Amoskeag Co., 44 N.H. 105; Laconia v. Gilman, 55 N.H. 127. Upon the facts found, the measure of the damages to which the plaintiffs are entitled is the reasonable cost of restoring to use and making passable the street, or, in other words, of removing the building. The defendant does not claim that the sum charged by the plaintiffs is unreasonable.

To the form of action, no objection has been taken. Whether it is or is not the proper form, is a question not considered. Peaslee v. Dudley,63 N.H. 220.

Exceptions overruled.

BLODGETT, CARPENTER, and CHASE, JJ., did not sit: the others concurred.