Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-12-22
duty of the court to seek to accom-
plish it by judicial legislation.
Exceptions sustained.
Penobscot County,
Inhabitants of Milford, vs.. Bangor
hallway & Electric Coz Ire scrin;

| Penobscot County. egs1
Inhabitants of Milford, + vs.. Bangor
Railway & Electric Coz Re script,
/ Whitehouse, j. cod Sal IT,
| This is an action on the case brought
by the Inhabitants of the town of Mil
ford against the defendant corporation
to recover the value of the town hall
and certain sidewalks and hose. which
were the property OF the municipality
! and We're destroyed by fire in April
1905.
| The declaration as amended in the
new count relied upon, alleged that
the defendant had engaged and was
/ bound and obliged TO furnish through
It's mains, condults, pipes and MIGRANTS,
| the same being laid and placed in the
streets of said plaintiff town, water of
sufficient pressure ana volume TO ex>
tinguish fires within the range of said
hydrants, and especially and particu-
I larly fires originating in, or communi-
| Gated to PLAINTIFFS said building and
property" Upon the strength OF these
| allegations, admitted by the demurrer
TO be true, the sulficiency of the declar
| alton was determined, and the demur,
| rer overruled. The opinion of the court
| is reported in Milford V. E. Il. 4 f. Co.
104 Maine, 233. To the doctrine of that
opinion founded upon the definite and
| specific allegations of the plaintiffs
amended declaration the court still adj
heres.
The cause came on for trial before
the jury 1T the January term 1909, upon
the defendants plea of the general is
and il was then Iicooyare tI,at
| the written contract between the par
ties Introduced in support of the de-
| claration lid not contain the rartcu.
lar stiDulations above quoted upon
which the opinion of the court was
based in ovelruling the demurrer. But
the cause was submitted to the jury
under instructions &c which no eXcep.
lions were taken. and a verdict was re-
turned in favor of the plaintiff for $4,-.
101. The case nov comes to this court
upon the :'cfen1ant's motion to set
aside tire verdict as against the law
an the evidence.
The defendant accordingly insists
that The contract actually made be-
tween the parties was liz effect only
such as is ordinarily made by water
company to estab ish plant and supu-
ply water without any stipulation to
do any specific thing or to afford pro-
lection to any particular property.
In support of the motion the defend
ant earrt st!y contends that in making
this contract with the water company
for the protection of property against
fire, the town acted for the general
public good; that in the absence of an
express covenant 20 do a particular
thing, the contract loeS not protect any
particular property. but is for tie ben
eff, of all. and that tie town as Il prop
cry owner derives the same hcneft
that every ot,'e- property owner does
ard no other or different advantage or
protection; that since there is no ex-
press covenant in tie contract. the Sc
curity afforded tin" PLAINTIFFS property
was; only the same security which In
the exercise OF It's governmental fu1c-
lions. the plaintiffs had obtained for
the whole town: that the Defendant
simply agreed to furnish water Sys-
EN- and supply il with water, and did
not agree to eXtinguiSh fires or to in
sure property against loss by fire. and
that, consequently. in the absence of
any special agreement to furnish a cer-
tain pressure, OF certain amount of
water, cr specifically 20 protect the
plaintiffs property, no action can be
maintained to recover for the loss OF
tie properly by fire. 1t is confidently
claimed that since the reasoning adop-
ted and the authorities ad luc2d il sup.
port of the conclusion reached in the
former opinion on the demurrer had
reference solely to the averment Of the
specific stipulations which it was die
covered at the trial were not contained
in the contract, that opinion is not au-
thority upon the questions raised un-
der the pending motion now before the
court.
1t wa: held that When a public SER
vice CORPORATION makes q contract With
a municipality 20 furnish a supply of
water for the cXtinguiShment of fires
through hydrants connected with its
mains, AMI the contract conSainS no
definite stipulations which are alleged
to have been nnperfcrmed for any spe-
cifc thincr to he done to that end and
no express undertaking to furnish pro-
lection to municipal property, it cans
not reasonably be deemed to have been
in TIE contemplation of the parties
that tho water company, for the con-
alteration received y it under the con-
tract had assumed the responsibility
of insurers: that under such circum.
stances the municipality sustairs a re-
lat!on to the water company respecting
the protection Of its property. not lc>
gaIIy different from the relation of any
of it's citizens to Sucn company; that 1t
cannot recover Coz the loss; of property
from the failure of the water company
to furnish an adequate supply of vas
ter: and that the vc,lct in the case ar
bar being against law, cannot be sus-
tanned.
Motion sustained Verdict set aside.
Androscoggin County.
Manufacturers National Bank, VS..
Hollingsworth & Whitney Company.
Rescript. King, j.
Nav. d. 1901. J. S. Longley IL Son
entered into written contract with