
    Oscar Getchell vs. Inhabitants of Oakland.
    Kennebec.
    Opinion December 31, 1896.
    
      Way. Towns. Water Course. Municipal Officers. B. S., c. 18, § 67.
    
    When surveyors of highways have constructed a water course " by the side of a way so as to incommode any person’s house or other building,” the municipal officers, under R. S., c. 18, § 67, on complaint and after view, "may cause it to be altered as they direct.”
    
      Meld; that the municipal officers are made agents of the town, by this statute, for such purposes; and may do the work at the town’s expense.
    On Motion and Exceptions by Defendants.
    This was an action of assumpsit on account annexed. Tbe action was tried in tbe Superior Court, Kennebec county, where the plaintiff recovered a verdict of $21.17.
    The case is stated in the opinion.
    
      S. S. Brown, for plaintiff.
    
      W G. Philbrooh and George W. Field, for defendants.
    Exceptions: When a town at its annual meeting has elected a highway surveyor or road commissioner, who is duly sworn and is in the discharge of his duties, the selectmen have no power to make a contract with reference to the repairs of highways which will bind the town. Tufts v. Lexington, 72 Maine, 516; Bryant v. Westbrook, 86 Maine, 450; Goddard v. Harp swell, 88 Maine, 228.
    Motion: (Form of action). Bangor House v. Hinckley, 12 Maine, 385; Keene v. Ghapman, 25 Maine, 126; Bangor v. Go. Goms. 30 Maine, 270; Mason v. Railroad Go., 31 Maine, 215; Hovey v. Mayo, 43 Maine, 322; Briggs v. Railroad Go., 79 Maine, 363. (Time of action). R. S., c. 18, § 68, as amended, Freem. Sup. p. 184. (Parties) lb. (Tort of Surveyor). Small v. Banville, 51 Maine, 359; Woodcock v. Galais, 66 Maine, 234; Bulger v. Eden, 82 Maine, 352; Goddard v. Harpswell, 84 Maine, 499.
    
      Sitting: Peters, C. J., Walton, Foster, Haskell, White-house, Strout, JJ.
   Haskell, J.

The road commissioner of Oakland constructed a ditch between the road and the plaintiff’s premises to take the water from above. The plaintiff complained to the selectmen about the inconvenience therefrom in approaching his premises. They instructed him to fix it and said “we would pay; that it would not make any material difference to us whether it was done with tiling, or plank driveway, two good wide plank.” The plaintiff did fix it, and recovered a verdict for $21.17. There is no good reason for disturbing the verdict if the action of the selectmen made the town liable.

The cases of Tufts v. Lexington, 72 Maine, 516, where it was held that selectmen could not bind the town on a contract for the repair of roads when highway surveyors had been appointed, etc.; Bryant v. Westbrook, 86 Maine, 450, where it was held that municipal officers who act without direction of the town or express statute authority in the repair of roads are not agents of the town, and for whose acts the town is not liable; and Goddard v. Harpswell, 88 Maine, 228, where it was held that selectmen, empowered by the town to borrow money for road building, could not act as agents of the town in doing the work, are cited as decisive of the case at bar.

These authorities are not in point, nor is Goddard v. Harpswell, 84 Maine, 499, for here the statute, R. S., c. 18, § 67, provides that when surveyors of highways have constructed a water course “by the side of a way so as to incommode any person’s house or other building,” the municipal officers, on complaint and after view, “may cause it to be altered as they direct.” They are made agents of the town for the purpose, and may do the work at the town’s expense. Here they employed the plaintiff to do the work for which the town became liable just the same as if they had employed a stranger to do it.

Motion arid exceptions overruled.  