The plaintiff's demurrer raises the question whether there is in this state any common-law liability of a municipal corporation; and if there is, whether it exists in the class to which the present case belongs.
While it is the law of this jurisdiction that towns are to a certain extent a part of the state, and therefore not suable at common law, no case has gone so far as to hold that this rule applies
to all cases. There are some expressions in Wooster v. Plymouth,62 N.H. 193, which might, taken alone, bear such interpretation; but that this is not their meaning is apparent from the fact that the opinion is expressly limited in its application to the corporate rights of towns, "so far as they are involved in this suit," and relates to "their purely public capacity." Ib. 221. The expressions are superfluous if towns have not rights and duties which are not purely public. It is important to note that the question there involved was "whether, in the vindication of rights purely public, the state is constitutionally entitled to trial by jury, and, if it is not, whether, in this case, the defendants stand in the position of the state, or in the position of a private person." Ib. 194. The court did not understand that the earlier cases upon common-law municipal liability were involved in the consideration of this question; for if there had been such understanding, it cannot be doubted that those cases would have received full consideration. Again, at the same term, it was said in another case: "To charge a corporation with damages for injuries arising from misfeasance and neglect of duty, no statute fixing the liability, there must be acts positively injurious committed by authorized agents or officers in the course of the performance of corporate powers, or in the execution of corporate duties, in distinction from those done in a public capacity as a governing agency. . . . Municipal corporations may be liable for acts done under a grant of special powers not held under any general law, and from the execution of which some special profit or advantage is derived (Rowe v. Portsmouth, 56 N.H. 293); and generally for injuries received from the negligent management of property not held for strictly public purposes, corporations are liable in the same way and to the same extent as individuals." Edgerly v. Concord,62 N.H. 8, 19. In another opinion, also delivered at the same term, this language was used: "The city was dealing with and managing the land as a private owner deals with and manages his own property. Under such circumstances the defendants would be liable for an injury resulting from their want of care, in the same manner and to the same extent that an individual would for his negligent acts in the care and management of his property." Clark v. Manchester, 62 N.H. 577, 579. It is evident that many of the remarks in Wooster v. Plymouth, which are correct as applied to the facts and questions of law involved in that case, are not applicable, and were not intended to refer, to cases involving dissimilar questions.
The mere fact that a town is engaged in the performance of a public duty is not enough to free it from all common-law liability for its acts, if the word public is to be taken in the broad sense of including every enterprise which may be supported by taxation.
There is no case laying down such a doctrine in this state. Farnum v. Concord, 2 N.H. 392, merely states the rule as applicable to an action by a traveler for damages caused by a defective highway, giving no reasons therefor. The Massachusetts case relied upon (Mower v. Leicester,9 Mass. 247) was decided upon the authority of Russell v. Men of Devon, 2 T.R. 667, and the reasons for the decision there have not been understood as going to the extent of denying all common-law liability of municipal corporations. See 9 Mass. 250, note; Ball v. Winchester,32 N.H. 435, 442; Eastman v. Meredith, 36 N.H. 284, 298; Hill v. Boston, 122 Mass. 344; Mayor of Lynn Regis v. Turner, Cowp. 87. In the case last cited, the court of king's bench, speaking through Lord Mansfield, recognized the common-law liability of a municipality fourteen years before the decision of Russell v. Men of Devon. Ball v. Winchester, supra, liability is denied upon the ground that highway surveyors are independent public officers, over whose acts the town has no control. So far as it decides that a town may, in the maintenance of highways, negligently flood the land of abutters, it is not now the law of this state. Gilman v. Laconia, 55 N.H. 130. In Eastman v. Meredith,36 N.H. 284, 288, 295, 301, the decision is placed upon the ground that the action was based upon an injury to the plaintiff when in the exercise of a public right. If the injury had been caused by an infringement of a private right, the result might have been different. "If the defendants in the present case had laid and maintained the foundations of their town house across a stream, and caused the water to flow back on the plaintiff's land, according to these authorities they would have been liable." Ib. 296. The general statements concerning liabilities of towns in Proctor v. Andover,42 N.H. 362, are dicta. The decision is expressly put upon the ground that it was not the duty of the town to maintain the gate in question. Hardy v. Keene, 52 N.H. 370, only decides (so far as this case is concerned) that highway surveyors are not the agents of the town. "They are public officers, whose duties are prescribed by law. Their authority is not derived from the town, but from the statute. They are not under the control of the town. Their powers cannot be enlarged or abridged by any action of the town, and what they do or omit to do, in the proper exercise of their authority, is done or omitted because the law enjoins and prescribes their duties, independent entirely of municipal control or authority." Ib. 377. Edgerly v. Concord, 62 N.H. 8, applies the same rule to fire engineers. "They were public officers, amenable to law for their conduct, and not under control or direction of the city. They were not agents or servants of the city in any such sense as to bind it by their acts or make it liable
for their defaults." Ib. 20. In Clark v. Manchester, 62 N.H. 577, it is said that a town is not liable for neglect to perform "a public corporate duty"; but this falls far short of saying that it is not liable for negligence in the performance of a public work, whereby private rights are infringed. In Sargent v. Gilford, 66 N.H. 543, the non-liability of a town for defective highways at common law is upheld, because the duty to maintain them is imposed upon the town. "The duty is a public one, and it was placed upon towns without their procurement or assent. They derive no special benefit, pecuniary or otherwise, from the performance of it. The service is not due from them to the state or to the public by force of a common-law obligation, but is imposed upon them by statute." Certain remarks in Doolittle v. Walpole, 67 N.H. 554, seem to be broad enough to warrant the assumption that a town is not suable in any case where the right of action is not expressly or impliedly conferred by statute; but these remarks were limited to "the purpose of the present inquiry." In Gross v. Portsmouth, 68 N.H. 266, non-liability is put upon the same ground as in Edgerly v. Concord, supra. "The water commissioners are not the city's agents, but an independent board. The city cannot direct or control them in the discharge of their duties. They have exclusive authority to determine where and in what manner water pipes shall be laid, and to do all other things touching the construction, maintenance, and management of the water-works" Ib. 267.
A careful consideration of these cases must lead to the conclusion that there is no general rule by which the common-law liability of towns has been ascertained. That there is such a liability in certain cases is well established in this state. See cases hereinafter cited. What cases will or will not come within this class may be determined, to some extent, by a process of elimination. It appears that towns are not liable at common law, (1) for the improper discharge of a purely governmental function (Eastman v. Meredith, 36 N.H. 284; Doolittle v. Walpole, 67 N.H. 554); (2) for neglect to perform duties imposed upon them without their consent (Sargent v. Gilford, 66 N.H. 543); (3) for the acts of officers whose powers and duties are so fixed by the legislature that the town cannot control or direct their actions. Ball v. Winchester, 32 N.H. 435; Hardy v. Keene,52 N.H. 370; Edgerly v. Concord, 62 N.H. 8; Gross v. Portsmouth,68 N.H. 266. In every case in which it has been held that there was no liability, the decision has been placed upon one of these grounds. In no case has non-liability been put upon the broad ground that there is no common-law liability of a municipal corporation.
On the other hand, there are numerous cases wherein towns were held to answer for their acts without any statutory liability,
either expressly or impliedly imposed. Quantum meruit has been maintained to recover for building a highway when the plaintiff had failed to perform a special contract. Wadleigh v. Sutton, 6 N.H. 15; Davis v. Barrington,30 N.H. 517. So where a town let a house for a term of years and the tenant made repairs, which were to be in lieu of rent, and was subsequently evicted before the end of the term, he was entitled to recover the value of the repairs to the town. Smith v. Newcastle, 48 N.H. 70. If a town so constructs a highway as to cause a nuisance upon the property of an abutter, the town is liable. Gilman v. Laconia, 55 N.H. 130; Cole v. Gilford, 63 N.H. 60. The same rule applies to the construction of sewers (Vale Mills v. Nashua, 63 N.H. 136; Nutt v. Manchester, 58 N.H. 226), to a failure to properly care for highways after they are built (Parker v. Nashua, 59 N.H. 402), and to cases where the improper construction was not authorized, but has been paid for and the benefit accepted. Carpenter v. Nashua, 58 N.H. 37. Where the work of maintaining sewers is voluntarily undertaken, the town is liable for injuries to private property resulting from negligence in such work. Rowe v. Portsmouth, 56 N.H. 291. The court has also sustained actions against towns for the obstruction of a private way (Willey v. Portsmouth, 64 N.H. 214), for money paid to discharge a debt due from the town (Sanborn v. Deerfield, 2 N.H. 251), for the expenditures of a committee to purchase land for a cemetery (Eastman v. Hampstead,66 N.H. 195), for labor performed and materials furnished in the construction of water-works (Leavitt v. Dover, 67 N.H. 94), and for the expenses of a committee before the legislature. Rider v. Portsmouth,67 N.H. 298; Bachelder v. Epping, 28 N.H. 354. If towns were mere divisions of the state, and could not be sued without authority from the legislature, many of these actions would have failed. The argument that the question of municipal non-liability was not raised in them is not well founded in fact. While the cases as reported do not, in most instances, mention this question, an examination of the reserved cases and the arguments of counsel will show that it was often before the court. See Carpenter v. Nashua 104 Briefs Cases 649; Cole v. Gilford, 146 Ib. 281; Vale Mills v. Nashua 147 Ib. 239.
So far as the questions involved in this branch of the law have been considered, the decisions seem to recognize three classes of cases in which towns are liable for torts at common law: (1) For negligent acts (even in the discharge of imposed duties) which interfere with the rights of others, provided such rights do not depend upon the imposed duty. Gilman v. Laconia, 55 N.H. 130; Carpenter v. Nashua, 58 N.H. 37; Parker v. Nashua,59 N.H. 402; Willey v. Portsmouth, 64 N.H. 214. (2) For their acts concerning property not employed in a public use. Clark v. Manchester, 62 N.H. 577. (3) Where duties of a public nature are voluntarily assumed. Rowe v. Portsmouth, 56 N.H. 291. The question of the soundness of the second and third classes is not involved in this case and is not considered. There is no substantial conflict between the decisions. The court has not said that a town was not engaged in a public (or governmental) service when repairing sewers (Rowe v. Portsmouth), and that it was so engaged when constructing water-works (Gross v. Portsmouth). The nature of the work was the same in both cases; but in the latter, the work was performed by persons over whose actions the city had no control, while in the former it was done by agents whom the city might direct as to time and methods of work. It is for this reason that there was a liability in one case and not in the other. Nor are these decisions based upon an ascertainment of what is or is not a public office. It was not the nature of the duties to be performed, but the fact that in doing them the actor was or was not subject to control by the town, that determined the question of liability. The decisions resulted from an application of the rule that one is not liable for the negligent acts of those whose conduct he has no right to direct or supervise. 2 Dill Mun. Cor. s. 974. "The maxim, respondeat superior, depends on the presumed control implied by the relation between the parties." Carter v. Berlin Mills, 58 N.H. 52, 53.
Non-liability has not been put upon the same ground in all cases; nor have the cases in which a liability was found to exist all depended upon a common rule. It is only in an attempt to put upon common ground cases which involve different principles that confusion arises. When the cases are properly classified they appear to be consistent with each other, and, in a general way, with the law of other states. See 2 Dill. Mun. Cor., ss. 962, 966, 971, 974, 981, 985. Viewed only with reference to the work in which the town was engaged, the decision in Sargent v. Gilford, 66 N.H. 543, that the town was not liable at common law for injuries received by a traveler, by reason of a defect in the highway, might seem to conflict with the holding that a town was so liable for building a highway so as to flow water over the abutter's land. Gilman v. Laconia, 55 N.H. 130. But the reason for the different results is plain. To establish his case a plaintiff must show that he had a right which has been infringed. In Sargent v. Gilford the only right upon which the plaintiff could rely was the public one of using the highway, and the only duty of the town was the statutory one to maintain the way. The plaintiff's injury was suffered while he was in the exercise of a public right, and
for this no action lies at common law. Eastman v. Meredith, 36 N.H. 284. Take away the public right, and the plaintiff would stand only as a trespasser, to whom the town would owe no positive duty as to the condition of the premises. Buch v. Amory Co., 69 N.H. 257. "The wrong thus complained of is not . . . in violation of the plaintiff's common-law right and the defendants' common-law duty, but a violation of the statutory highway right of a traveler, by a non-performance of the defendants' statutory duty of keeping the highway `in good repair, suitable for the travel thereon.'" Doe, C. J, Edgerly v. Concord, 59 N.H. 78, 79. As no private right had been infringed, the plaintiff had no cause of action at common law. In Gilman v. Laconia, the situation was different. The right there invaded was the private right of property. The plaintiff complained, not that the town had failed to perform some public duty, but that it had invaded his property right. It was no answer to this complaint to say that the town was engaged in a public undertaking, or even that it was performing a public duty imposed upon it against its will. If such a defence were available, private rights would not be secure against arbitrary forfeiture, and the implied constitutional provision against taking private property for public use without compensation would be abrogated. Eaton v. Railroad, 51 N.H. 504,511. "`We can solve more easily and safely questions of this character, if we take pains to free our minds from the false notion that a municipality has some indefinable element of sovereign power, which takes from the property of the citizen, as against its aggressions, the protection enjoyed against the aggressions of a natural person.' The same constitutional provision that protects the right of private property against invasion by private individuals `must protect it from similar aggressions on the part of municipal corporations.'" Jeremiah Smith, J., Eaton v. Railroad, supra, 534.
In many of the cases where a recovery has been had, the action was justified by being necessary to carry out the spirit of the supreme statute law. Although our constitution contains no express declaration that private property shall not be taken for public use without compensation, that rule is implied from the spirit of equality which pervades its every part. Eaton v. Railroad, supra, recognizes the doctrine that this rule authorizes suits against municipalities for damage to property occasioned in the execution of a public work. It is urged that this rule applies only to property that is taken directly for, and not merely in the course of the execution of, public works. For example: If it is useful for a municipality to lay a water pipe across A's land, he is to be compensated; and if the act be done without process of law
or his consent, he may have redress. On the other hand, if in the building of the same water-works the superintendent negligently floods B's garden, it is said that the corporation is not liable because the act does not inure to the benefit of the municipality. If this reasoning were sound, it would follow that the measure of A's damages would be the benefit to the municipality; and the fact that he is entitled to the value of the property taken shows conclusively that the right to recover rests upon a broader principle than that of an implied promise to pay for benefits received. In these matters, "the dictate of justice is that no person shall suffer unequally, and, if he does, that all should make compensation." 2 Dill. Mun. Cor. s. 1051, c.
It is also said that the flooding of B's land is not the result of a public work, but of the negligence of the superintendent, and, therefore, the municipality is not liable. The answer to this is that the law so far takes notice of the fallibility and imperfection of fill human endeavor that one who entrusts his affairs to his servant, under instructions, either express or implied, to do only that which is lawful, is responsible for the neglect of the servant so to do. The general rules of agency apply to towns. They are "subject to the same implications arising from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons." Glidden v. Unity, 33 N.H. 571, 577; Holderness v. Baker,44 N.H. 414, 417; Graft v. Rollinsford, 58 N.H. 253; Kinsley v. Norris,62 N.H. 652.
The claim is also advanced that it is unconstitutional to take the taxpayer's property to pay damages caused by the negligent acts of the superintendent, — that the power to tax extends only to public purposes, and not to making reparation for injuries done by public agents. The argument proves too much. It denies the right to tax for any but strictly governmental purposes; while the law is that "in determining this question, the legislature cannot be held to any narrow or technical rule. Not only are certain expenditures absolutely essential to the continued existence of the government and the performance of its ordinary functions, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely upon considerations of honor, gratitude, or charity." Cool. Con. Lim. *488. For many years towns in this state have been called upon to respond to suits to enforce a statutory liability for damages caused to individuals by a failure to keep highways in repair. Although there was no such liability at common law, and although the nature and extent thereof under the statute has been treated of at great length, it never before been suggested that the statute was an unconstitutional
infringement of the rights of taxpayers. If their property may be taken for a liability which was unknown to the common law, much more may it be for municipal obligations which the common law recognized.
The argument that, according to a perfect theory of the nature and end of all government, municipalities partake of the sovereign character of the state, and so cannot be liable to suit except when made so by statute, has not been overlooked. The argument would be entitled to weight if this was a new question, but that is not the present situation. It may be that a corporation, in part governmental and sovereign, and in part individual and accountable, does not satisfy the demands of pure reason or realize the ideal of those skilled in political science. The same thing may be said of many of the rules of the common law which have been adopted; yet those rules are of binding obligation. Thompson v. Esty, 69 N.H. 55. So as to the nature of municipal corporations' the theory of their dual character is too firmly imbedded in the common law to be removed, except by the law-making power. Whether it would be better if they were liable for every breach of duty, as suggested in Ball v. Winchester, 32 N.H. 435, 442, or whether, as the defendants here contend, they ought not to be liable at all, is a question to be settled by the legislative department of the government.
Ever since the time of the Roman empire, municipalities have been subject to private law relations, not applicable to sovereignty. 1 Dill. Mun. Cor., s. 3. The exact location of the divisional line between those matters which are governmental and those which are not, has not always been clearly indicated. Courts have not agreed upon the precise location of the line; but there has been no dissent from the proposition that municipalities have duties on each side thereof. This has been the law of the state for many years. It may fairly be assumed that many instances of legislative action or non-action have been based upon it. Like the doctrine of the peculiar corporate character of proprietors of towns, the authority for it is to be found "in the records of New England, in the decisions of courts." Proprietors off Cornish v. Kenrick, Smith (N.H.) 270, 273. It is a part of the common law, and cannot be abolished except by the law-making power.
It may be, and probably is, true that the decided cases do not cover every phase of common-law municipal liability that may arise; but as they have sufficiently established the law for the purposes of the present case, it is not essential to pursue the general subject further. Nor is it necessary to inquire whether the grounds upon which non-liability has been placed are sound. The cases in which such a conclusion has been reached are of consequence here
only so far as an investigation of them is needed to show that they are not based upon a theory of general municipal immunity from suit. Taking the law as it has been declared in this state, a town is liable for the negligence of its agents which affects the private property right of others. Is it any less liable when the right involved is personal instead of proprietary?
The basis of the cause of action is the infringement of a private right, a violation of those rules of conduct which from being custom became law, and which now govern the conduct of all in their relations to others, be those relations either personal or proprietary. A private right is infringed when a person's health is injured by emptying a sewer wrongfully in the vicinity of his residence, the same as when water is wrongfully turned upon his land. "On the question of liability, it might not be material whether the invasion were of bricks or of polluted atmosphere." Towne v. Thompson, 68 N.H. 317, 322. The case does not differ in principle from that of an employee who is entitled to be provided with a reasonably safe place in which to work, and to be associated with reasonably competent fellow-servants. The landowner's right of property and the laborer's right of personal safety are alike given by the common law. They are both private rights, and the invader of the one is no more bound to answer for his acts than the infringer of the other. "The whole superstructure the liability of municipal corporations for negligence and for trespasses upon property is built upon the same idea; since there can be no distinction on principle between the case where a municipal corporation — let us say in the prosecution of some public work, within its charter powers — unlawfully damages any property or injures my person, and where, acting for its own purposes, and within the scope of its charter powers, it takes my property." Seymour D. Thompson in 33 Am. Law Rev. 708.
The rule which governs this case is clearly stated by Perley, C.J. in Eastman v. Meredith, 36 N.H. 284, 295, where it is said: "The plaintiff, in cases of this character, does not recover on the ground that he has been denied any public right which the corporation owed to him as a citizen of the town, or because he has suffered an injury in the exercise of a public right, from the neglect of the town to perform a public duty. The corporation being authorized by law to execute the work, if, in their manner of doing it, they cause a private injury, they are answerable in the same way and on the same principle as an individual who injures another by the wrongful manner in which he performs an act lawful in itself. It has been sometimes made a question, whether in the particular case the corporation were liable as principals for the conduct of those who performed the work on their account;
but where a work is once conceded to be done by the corporation, it would seem to be clear, on authority and general principles, that a corporation, public or private, must be held liable like an individual for injuries caused by negligence in the in the process of executing the work." For more than forty years this decision has been acted upon as correctly stating the law applicable to this class of cases. It states the law, not only of this jurisdiction, but of every jurisdiction where the common law prevails. "It is . . . universally considered, even in the absence of a statute giving the action that" municipal corporations "are liable for acts of misfeasance positively injurious to individuals, done by their authorized agents or officers, in the course of the performance of corporate powers constitutionally conferred, or in the execution of corporate duties." 2 Dill. Mun. Cor., s. 966. The case which announced the adoption here of this unquestioned rule of the common law cannot be held to have been overruled, together with the cases which have followed it, by remarks made in a case where the question was not involved and in which these cases are not mentioned. The case at bar falls within the rule laid down by these authorities. The complaint is of wrongful acts injurious to an individual. The term "private injury," as used in Eastman v. Meredith., supra, is synonymous with "private wrong," which is defined as "an infringement or privation of the private or civil rights belonging to individuals, considered as individuals," as distinguished from public wrongs, which "are a breach and violation of public rights and duties which affect the whole community, considered as a community." 3 Bl. Com. 2. "Private wrongs, . . . being an infringement merely of particular rights, concern individuals only, and are called civil injuries; . . . public wrongs, . . . being a breach of general and public rights, affect the whole community." 1 Bl. Com. 122. To determine what conditions or situations have the elements of private rights, as above defined, reference must be had to the positive law. The terms "private wrong" and "private right" cannot be defined further than to say that they include all those duties due from one person to another, for the breach of which the law gives actions. See 4 Bl Com. 5, note; Ladd v. Brick Co., 68 N.H. 185. Except as to those guaranteed by the constitution, private rights may be modified or enlarged by legislative actions; but until this is done they remain as they were at the common law. So in this case, the contract of the parties created a situation which gave the plaintiff the common-law right to be furnished a reasonably safe place in which to work. The existence of the right cannot be doubted. It was a "particular right" concerning the individual only, and not one which "affected the whole community." It was in every sense such a right that a negligent violation
of it would be a civil injury or private wrong. It in no way depended upon the performance or non-performance by the defendants of any public duty.
Were the water commissioners servants of the city, or were they "an independent board" whom the city could not "direct or control" "in the discharge of their duties"? The act authorizing the city to establish water-works gives the full control thereof to the city, and provides that "the city may, either before or after the construction of the same, place them under the direction of a superintendent, or board of water commissioners, or of both, with such powers and duties as may, from time to time, be prescribed by the city council of said city." Laws 1871, c. 69, s. 5. Acting under this authority the city passed an ordinance establishing a board of water commissioners, to whom it entrusted the entire management of its water-works. Concord Rev. Ord. 1894, c. 22, ss. 2, 4. It is argued that this ordinance is in effect the same as a statute enacted by the legislature, and that therefore the commissioners come within the class of independent officers whose acts city cannot control or regulate and for which it is not liable. The defect in this reasoning is apparent. The officer whose duties are fixed by the legislature is beyond the control of the city; and however much it may desire to change those duties, it is powerless do so. On the other hand, the ordinance in this case, although enacted in the form of legislation, is a mere rule of conduct or delegation of authority given by the city itself to those employed in its service. It may change the duties or take away the powers granted at any time; and the ordinance in express terms reserves to the city councils the right to remove the commissioners. Ib. s. 3. The commissioners were servants of the city. Grimes v. Keene, 52 N.H. 330, 335.
The defence that the suit should be against the precinct and not against the city is not available. "The water commissioners are the officers of the whole city and not of the precinct, are elected by the city councils, and, so far as they are answerable for their conduct, are answerable to the city and not to the precinct." Brown v. Concord, 56 N.H. 375, 379.
Demurrer sustained.
PARSONS and YOUNG, JJ., concurred in the result only, holding that there is a statutory liability and dissenting from the decision that there is a liability at common law: the officers concurred.