Town of Portsmouth vs. Lucy Snell and als., 8 N.H. 338

Up ham, J. There are many objections to sustaining this action, but it is unnecessary to consider them farther than may be sufficient for settling this case. It is incumbent upon the plaintiffs to show that the requirements of the statute have been fully complied with, in order to give them any right to interfere with the property of the defendants ; and the plaintiffs must pursue their remedy in the manner, and to the extent merely, specified by the statute.

It must appear, by the proper action of the fire-wards, that a case requiring their interference is made out ; and after this is done, notice must be given to the owners, or, in certain cases, to the occupant of the building, “ containing a particular account of the repairs or alterations required to be made.” Where the owner or owners do not reside within the town, notices to them may be posted up in three public places within the town; but where the owner or owners reside within the town, notices must be given to them personally.

In this case a portion of the resident owners within the town were not personally notified; and unless all the owners are legally notified, neither of them are liable. Each owner has a right to require that the compulsory proceedings under the statute should be brought home to the knowledge of all parties in interest. The owners might then act in concert in making the necessary repairs, or in case suit was brought against them, and the amount recovered was paid by any one of the owners, he would have an appropriate remedy against the others, to compel a contribution of their portion of the expenditure.

In this case, all the owners of the building are neither notified or sued. The proceeding is against part of them merely ; and it is very questionable, if the notices were legal, whether any one or more of the owners, less than the whole, would be liable to a suit for the whole expense incurred. In this case, there is not only this difficulty, but those of the owners who are sued have very different interests in the property.

Whether the individual owners, when all are notified, would be liable only for their proportion of the repairs, or for the whole expense of repairs ; or whether they must be sued jointly, and an entire recovery be had against the whole — are questions of some difficulty, but they need not be determined at this time. There is, beyond these questions, an objection going directly to the merits of this claim, which in the opinion of the court must ever preclude any recovery upon it.

The fire-wards have authority, by the statute under which this suit is brought, to make repairs on any building that has become dangerous by reason of decay ; or, where the building is in a ruinous state, and not worth repairing, they can cause it to be demolished. The extent of their authority is merely to make such repairs as shall be sufficient to protect the neighboring buildings from unnecessary exposure to risk of fire, or to ensure the same end by the destruction of buildings not worthy of repair. To this extent individuals owning buildings are liable for any expenditures which may be made under this act.

But the fire-wards have no authority to interfere with the rights or property of others, with the design to carry their expenditures beyond what is necessary for this purpose. The entry of the fire-wards with such an object cannot be protected by any color of right, under the statute, and renders them liable at once as trespassers. That the entry in this case was of this character, is apparent fro pi the vote of the fire wards.

The vote authorizes their committee “ to make such repairs on the building ‘ owned by the defendants as shall make it secure from fire, ‘ and also make such other repairs as shall be necessary to ( make it a comfortable and decent tenement.” This is an entire vote. The entry of the fire-wards was for the purpose of carrying the vote into effect; but they manifestly had no power to go on, and make comfortable tenements at other people’s expense. And it appears, from the finding of the jury, that two thirds of the expenditure made was for this purpose.

The expense incurred thus far seems to have been borne by the agent appointed by the fire-wards ; and he has taken the precaution to become an owner in the tenement. He may thus, to some extent, have been reimbursed for his labor. It does not appear that the town has paid any thing ; and there are no facts in this case which would render the town liable for such expenditures, unless it should deem itself under obligation to make good the acts of its agents, where they designed to exercise a sound discretion within the provisions of the statute, whether authorized or not.

There can be no apportionment of repairs in this instance, on. the ground that the entry was in part for a legal, and in part for an illegal purpose — but the whole must be regarded as a trespass. The verdict, therefore, must be set aside, and a New trial granted.