Dyer v. South Portland

In Dyer v. South Portland, 111 Me. 119; 88 A. 398 (1913) the Court was called upon to decide the legislative meaning of the phrase "drainage entitled to pass through it" when faced with the question whether catch basins, designed to carry off surface water, and, at that time, part of the sewer system, was such as to come within the statute. The Court asked the question: Now what is the statutory duty of the town, for failure in the performance of which the town is made liable? It is to maintain a sewer so as to afford sufficient and suitable flow for 'all drainage entitled to pass through it.' Did the legislature mean to make towns which have catch basins liable for failure to keep them in such condition that surface water can pass through them into the sewer, or merely for failure to keep the sewer proper, within the limits of its capacity, in such condition that drainage or sewer from lands of persons who have paid to connect with it may pass through it? In the first place, is surface water 'drainage' within the meaning of the statute? The Court goes on to then examine the statutory scheme of the sections preceding the language in question. It notes the statute providing for the construction of sewers, the taking of land, the assessment and payment of damages therefor, landowner connection with the sewer and attendant assessments, permits. The Court concludes that these statutory provisions "are concerned only with the machinery by which the abutter may become entitled to connect with the sewer so that he can flow his drainage or sewage, whichever it be called, from his land to the sewer. Not in the remotest degree is there any reference to any other drainage." In the final analysis, the court decided: When an abutter has paid an assessment, or has received a permit and has connected with the sewer, he is entitled to have his drainage pass through it, and the town is bound to keep the sewer in such repair, up to its limit of capacity, that his drainage, so entitled, may pass through it. We hold therefore that a town is not liable under the then existing statute for damages caused by surface water, which is prevented from entering a sewer by the clogged and obstructed condition of catch basins, and which in consequence flows upon adjoining land and does damage.