Draper vs. The Inhabitants of Orono, 11 Me. 422

Weston J. delivered the opinion of the Court. The liability of the town of Orono to pay the damages, sought to be recovered in this action, if it exists, must be created by, and depend upon, statute. The way located, by which the damage was occasioned, is what the statute denominates a private way. This is conceded by the counsel for the plaintiff. It was laid out upon the application, and for the use, of the Oldtown Bridge Corporation proprietors in said town.

The Selectmen are empowered by law, to lay out town or private ways, for the use of such town, or for one or more individuals thereof, or proprietors therein. If the owner or owners of the land, through which such way shall be laid out, be injured thereby, he or they shall receive such recompense, as the party injured and the Selectmen . shall agree upon ; to be paid by the town, or person or persons, for whose use the said way is laid out. By the proceedings had in relation to the way in question, it seems very clearly to have been laid out for the use, not of the town but of the corporation.

Upon the latter therefore and not upon the former, the law imposes the liability to pay the damages. And this is indeed in express terms prescribed as a condition, both by the Selectmen in the location, and by the town in the acceptance, of the way. The whole case negatives the position that it was laid out for the use of the town ; and unless it was, they are not liable for the damages. The bond taken by the town from the bridge corporation, conditioned among other things, that they would pay these damages, does not create a legal obligation on the part of the town to pay them in the first instance.

There is no stipulation to this effect; and no such legal liability arises, or is implied, from these transactions. The bond contained other conditions on the part of the corporation ; to make the road and keep it in repair; and thus to fulfil duties, which would otherwise legally fall upon the town. That by which they undertook to pay all damages, which any owner or owners of the land, over which the road passes, may legally recover; and save the town harmless by reason of the laying out of the road in every respect, may be regarded as inserted for greater caution.

It provided for such damages, as the owner might legally recover; but it could not have the effect to extend or enlarge his remedy. It is contended that the town ought to be held answerable, otherwise the party injured might be turned over to an irresponsible individual. The answer to this is, that whether the one or the other is to be held liable, depends by law upon the question, for whose use the way is laid out, and not upon the ability or sufficiency of the one or the other to make good the damages.

Besides, there is little reason to believe, that either the Selectmen or the town would subject one party to loss for the accommodation of another, not able to pay a just equivalent. It would be an abuse of power, not to be presumed. The statute of 1828, requiring a demand of payment in these cases by the party injured, of the Treasurer of any town liable to pay the same, thirty days at least before a suit can be brought, can by no just construction be regarded as extending the liability of towns; nor is it inconsistent with the obvious meaning and express previsions of the former law. Exceptions overruled.