
    James L. Wood versus the Inhabitants of Waterville
    A surveyor of the highways is obliged by law effectually to repair the ways within his district, and when the town does not make sufficient provision, he has his remedy against the inhabitants.
    A surveyor, sustaining damage from a defect in the highway within his district, and which arises from his own neglect, has no remedy against the town for such damage.
    Case upon the statute of 1786, c. 81., in which the plaintiff demands of the defendants double damages for the loss of his horse through the defect of a bridge or causeway in the highway, in the town of Waterville; it being the same action, which came before the Court at the last May term in this county, and was then sent to a new trial, that further evidence might be laid before the jury .
    It was accordingly again tried at the last October term, before 
      Thatcher, J., and a verdict found for the plaintiff, subject to the opinion of the Court on the following facts reported by the judge who sat in the trial.
    The highway and bridge mentioned in the declaration were a public way, which the defendants were by * law [ * 295 ] bound to keep in repair. The bridge was defective, and out of repair at the time stated in the declaration, and had been so for a year previous, and by means of the defect, the plaintiff’s horse, while in his use and employment, was, on the first day of October, 1805, injured, and became thereafterwards of no use or value.
    The plaintiff was a surveyor of the highways for the year when the damage occurred, duly elected and sworn, and the defective highway or bridge was within the division or district assigned to him by the selectmen in writing.
    The town of Waterville legally raised the sum of 1,500 dollars, to be expended on the highways during the year in which the damage accrued to the plaintiff, of which sum the proportion belonging to the plaintiff’s district was 133 dollars, 33 cents. This sum he expended in repairing the ways, bridges, and causeways within his division, before the first day of October, 1805, but did not settle his accounts with the selectmen during the year. After the said sum of 133 dollars, 33 cents, was duly expended, the bridge aforesaid remained defective and out of repair. The plaintiff gave no notice thereof to the selectmen of the town, or requested their consent, nor did it appear that they ever consented, or directed the plaintiff to employ any of the inhabitants of the town in repairing the said bridge. One of the selectmen labored under the plaintiff in laying out said money, and directed how and where it should be expended, and what part of the roads, so assigned, should be amended.
    And now at this term Wilde, in support of the verdict, read and relied upon the seventh section of the statute, which provides, among other things, that if any person shall receive any injury in his horse through any defect of any highway, causeway, or bridge, the person injured may recover of the town, in case they had reasonable notice of the defect, double the damages thereby sustained, by a special action of the case, &c.
    * Mellen, for the defendants,
    contended that the [ * 296 ] damage, which the plaintiff had sustained, was chargeable to his own negligence of his official duty. Though all the money assigned to him had been expended, the statute provides him with the necessary powers to keep the ways and bridges in repair; and the case finds that the bridge, which occasioned the plaintiff’s damage, had been for a year defective and out of repair.
    The eleventh section of the act not only makes the surveyor liable to indictment himself, but provides also that he shall refund to the town any fine and costs, which they may have been subjected to, by reason of a deficiency in the highways within his district. Such a provision would be unjust in the extreme, if the powers of the surveyor were not adequate to the necessary repairs. Accordingly the fourth section makes provision for the case where he shall have expended the tax appropriated to him, and further repairs are necessary.
    It being then within the surveyor’s power, and by law made absolutely his duty, to keep the highways in repair, it is absurd that he should demand of the town satisfaction for a damage, which has arisen wholly from his own neglect. This absurdity will be more striking, if, as the defendants believe, the plaintiff will be answerable to them for the very amount they may be held to pay in this action.
    
      Wilde
    
    in reply, contended that the power of the surveyor, independent of the consent of the selectmen, is only given him by the eighth section in case the town wholly neglects to raise money for the purpose of repairing the highways. So that, in the present case, the plaintiff could not repair this bridge without the consent of the selectmen, and it is found that one of them not only labored in the plaintiff’s district, and must have known of this defective bridge, but he undertook to direct what part of the roads the plaintiff should repair.
    [ * 297 ] * And in truth, it is to be inferred from the whole case, that the true reason why this defect remained in the plaintiff’s district, was the neglect of the defendants to vote and raise a sum of money sufficient and necessary to put the roads and bridges into safe and convenient repair.
    If the plaintiff has entitled himself to his action within the statute, he ought to have judgment, whether any blame attaches to him or not. If he is in fault, he may be held to answer for it; but the town is made absolutely liable in every event.
    
      
       Vide ante, Vol 4 422.
      
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The declaration in this case is founded on the seventh section of the statute of 1786, c. 81., made for repairing highways. The defendants object to the verdict, because the plaintiff was an inhabitant of Waterville, and a surveyor of the highways there; and as the defective bridge was in his district, he was bound to cause the defect to be repaired; and if he has suffered, it was through his own default. If this objection be well founded, we are satisfied that it ought to prevail.

Although the words of the seventh section are general, including all persons, yet it ought to receive a reasonable construction. The statute directs that all highways shall be kept in repair at the expense of the town-in which they are located. The town is obliged ■to choose annually surveyors of the highways, whose duty it is to cause the highways to be repaired at the town charge. If, therefore, through the surveyor’s neglect of his own duty, he suffers any injury from a want of reparation, it could not be the intention of this section to give him a remedy for a damage arising from such cause.

The plaintiff has argued that it appears, from further facts reported, that he has been guilty of no neglect; * that he was authorized by the town to expend in repairing the [ * 298 ] roads, a highway tax of 133 dollars, 33 cents, and no more; that the whole of this sum was duly expended; and that the want of further reparation arose wholly from the neglect of the defendants in not raising a sufficient highway tax.

If the surveyor had no other fund for repairing the highways than this tax, it would not be reasonable to charge him with neglect of his duty, because he did not complete the repairs at his own expense. The weight of the objection to the verdict, made by the defendants, must depend therefore upon the provisions of the statute, which furnish to the surveyor the means of repair. By the fourth section, if the highway tax is deficient, the surveyor may, with the assent of the major part of the selectmen, employ the inhabitants on the repairs, so as to make up the deficiency, and the inhabitants shall be paid out of the town treasury. By the eighth section, if the town shall neglect to assess a tax for repairing the highways, or shall not otherwise provide for effectually repairing the same, the surveyor is directed to cause the same to be repaired by the labor of the inhabitants, who are made liable to a penalty, if they refuse to obey the directions of the surveyor; which penalty he may recover on complaint to a justice of the peace.

It is said that the duty here enjoined on the surveyor is on condition that the town do not assess any highway tax.

We are satisfied that this is not the true construction of this sec tian; but that this duty is enjoined on the surveyor in all cases where the town has not made provision for effectually repairing the highways, either by a tax or otherwise. This construction naturally results from the eleventh section, in which it is enacted that when a fine is paid by any town for the defect of its ways, the town may recover the same with costs against * the sur- [ * 299 ] veyor by action of the case. And the same section makes the surveyor liable to a public prosecution, in all cases, for a deficiency in the highways, and to a fine on conviction. Now it canna reasonably be supposed, that the law would compel the surveyor fc; indemnify the town, or to pay a fine for the deficiency of the higlr ways, unless it had given him sufficient authority to repair the same at the expense of the inhabitants. And I remember that an action of assumpsit was, upon this principle, maintained by a surveyor against the town of Newbury, in the county of Essex, for the expenses of repairing a highway (the tax for that district being insufficient), on an implied promise arising out of the legal obligation upon the town to make sufficient provision, and upon the surveyor effectually to repair the highways.

On this view of the statute, we are satisfied that the surveyor is obliged by law effectually to repair the ways in his district, and that, in all cases where the town does not make sufficient provision, he has his remedy against the inhabitants.

As the injury, of which the plaintiff complains in his writ, was a damage arising from his own default, we are satisfied that he cannot maintain this action against the town. Otherwise he would recover double damages for a defect in the bridge, which existed from the neglect of his own duty.

According to the agreement of the parties in this case, the verdict must be set aside, and the plaintiff become nonsuit.  