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The leading proposition urged on the part of the defendant is that the sewer in question is not a public one, and that the defendant is neither chargeable with its construction nor liable for its consequences.
The defendant has for many years been a municipal corporation. And by reference to L. 1874, ch. 271, it will be seen that upon the granting by the board of trustees of a petition, etc., made in conformity with the provisions of the act, it is made its duty to cause the sewer asked for to be constructed, and after taking the requisite preliminary proceedings, to award the contract for the work and take security for its performance. (Id. §§ 3, 4.) The construction of a sewer is not only to be in accordance with the plans, etc., prepared by the direction of the board, but the trustees are to prescribe rules for its use, and when repairs are required, to make them (Id. § 6), and the cost of construction is to be realized by assessment upon the property benefited, enforced in the manner other taxes are collected in the village. (Id. § 5.) This could not lawfully be done for work of a mere private nature. The purpose of sewers so constructed is thus necessarily characterized as public, and the power is legitimately vested in the corporation to accomplish it in the manner authorized by the
statute. It appears by the petition and proceedings following it, that the design was to construct the sewer in question pursuant to the provisions of the act of 1874. It is, however, urged that it was not authorized by or constructed in conformity with the provisions of that act, because within the proposed line of it as described in the petition and on which it was located was embraced private lands. It is true that the distance of about five hundred of the two thousand feet of the line of sewer as given by the petition and as constructed was not in any street, but through private grounds, with the consent of the owners. The statute provides only for laying sewers along the streets of the village; and there is no provision in the last-mentioned act to appropriate lands elsewhere other than for the purposes of the main sewer mentioned in the second section. It may be that the board of trustees exceeded its authority in granting the petition and in departing from the lines of the streets after laying the sewer fifteen hundred feet in them, and constructing it through private grounds the other five hundred feet to its outlet in Walworth street. In the view taken that question is not necessarily here for determination. For the purpose of enforcing assessments to pay the cost of the work it was essential that the proceedings should have been had in substantial conformity with the provisions of the statute from which was derived the municipal authority to do that which was sought to be accomplished. The present case is not dependent for its support upon the regularity of the proceedings of the village authorities, but is to charge the corporation with liability for the consequences of a work alleged to have been performed in a negligent or improper manner. If it were ultra vires in such sense as not to be within the scope of the corporate powers of the defendant, the latter would not be answerable for the consequences resulting from it, although the persons causing the work to be done were its officers or agents, and assumed to act as such in doing it. (Mayor, etc., v. Cunliff,2 N.Y. 165; Smith v. City of Rochester, 76 id. 506.) But that is not the situation presented here. It was legitimately within the corporate power of the
defendant to construct sewers; and it may be that in attempting to execute it, the constituted authorities went to some extent beyond the authority conferred upon the corporation and them as its officers. The referee has found that the trustees were not chargeable withmala fides. It may, therefore, be assumed that the general purpose was to execute the power vested in the municipal corporation which they represented in causing the work to be done; and thus acting the defendant may be chargeable with the injury to others resulting from their failure to properly perform the duty which they assumed to discharge, although it may have been occasioned by irregularity or acts on their part in excess of authority. (2 Dillon's Mun. Corp. § 769 [4th ed.], § 971; Lee v. Village of Sandy Hill, 40 N.Y. 442;Buffalo, etc., Turnpike Co. v. City of Buffalo, 58 id. 639;Thayer v. City of Boston, 19 Pick. 511; Hawks v.Charlemont, 107 Mass. 414.)
It may be observed that the sewer was constructed three-quarters of its length along certain streets in the village; and the referee has awarded such damages only as he found was occasioned by sewage which entered the sewer along the streets. This evidently was done upon the theory that the portion of it not laid along the streets was not necessarily under the control of the corporation. This portion through the private lands had the effect to convey the sewage from the other parts of it in the streets to its outlet, thus causing the injury produced by it.
It is unnecessary for the purposes of this review to consider the corporate relation, other than in that aspect, to such portion of the sewer. The sewer within the streets was certainly under the control of the defendant. And one of its purposes was to take into it and thence to its outlet whatever was conducted into it by means of lateral drains and sewers from houses, etc., along its line; and the defendant was liable to the plaintiffs for so improperly providing or locating the outlet as to cause the sewage to pass from it onto their premises. (Noonan v. City of Albany, 79 N.Y. 470;Chapman v. City of Rochester, 110 id. 273.)
Reference is made by counsel to Searing v. Village ofSaratoga Springs (39 Hun, 307; 110 N.Y. 643), but that case has no necessary application to the one at bar. There the pipe which conducted the sewage into the plaintiff's lot was laid on her own land by her consent or request; and she was at liberty to take it up and thus remove the cause of her complaint.
Whatever view may be taken of the relation of the corporation to the lower portion of the sewer, the defendant is using it as a conduit to carry the sewage from the sewer laid along its streets to the outlet, and the only outlet provided for its discharge. No other question seems to require the expression of consideration.
The judgement should be affirmed.
All concur, except POTTER, J., not voting.
Judgment affirmed.