duits as shall be necessary for conducting and Town Hill Road and through other highways distributing water to the persons and cor- and streets to the bridge crossing Farmington porations, and to the houses, tenements, prop- river and to connect the present pipes with erties, and places specified." The plaintiff in the main supply pipe so that the dry well 1894 established a water system, erecting a will be supplied by the new system of dam across Steele brook, making a small mains and so that the takers of water on the reservoir, and extending its mains through Steele Road will be supplied from the dry substantially all of the streets of the villages well. A few days prior to the institution of of New Hartford and Pine Meadow in the this action it began to excavate and lay town of New Hartford, and has entered into pipes in Bridge street. The plaintiff has agreements with the New Hartford and Pine pipes laid in this street, but on the opposite Meadow fire districts to furnish them with side from that where the defendant was water for fire protection purposes, and has excavating, but in laying its pipes as proendeavored to supply people living along the posed the defendant has already necessarily line of its mains with water. The incor- crossed the plaintiff's line in one place and porators of the defendant were "Walter C. will probably cross it in three others. The Woodruff, Walter M. Smith, Clarence E. defendant had a competent man in charge of Jones, Thomas E. Myers, and such others as the work and an inspector to see that no are now associated as the New Hartford damage was done to the plaintiff's property North End Water Company, a voluntary asor rights, and at the time the defendant was sociation located in the town of New Hart- enjoined by preliminary injunction it had not ford." In 1825 Henry Seymour, a resident of injured any of the plaintiff's pipes or propNew Hartford, being the owner of land erty. The latter's water pipes, owing to the through which Stone brook flows, made a pressure of water therein, are liable from lease to certain other residents of the same time to time to break, and it is necessary that place of water rights in the brook, and these they should be immediately repaired. Where lessees carried water from this brook into two lines of pipe cross there is a possibility the village of New Hartford for their own that in making repairs at that point of either use, and they, their successors, heirs, and pipe some injury may be done to the other, assigns, have ever since used said water in but when care is used the danger of such inthe village of New Hartford. In 1891 the jury is remote and immaterial. The pipes persons so using the water from this brook proposed to be laid by the defendant are to associated themselves by the name of the take the place of existing pipes laid in the New Hartford North End Water Company, same streets, except the main to be laid in and since that association was formed have the Town Hill Road, through which water made no claim to any separate or individual from the new reservoir is brought into the right to said water, but have used and claim- village to the point where that road meets ed it as members of the association or as from the old reservoir entered the village. the Steele Road through which the old main · takers of water from it. The defendant and The court found that the defendant has not its predecessors have been supplying, and solicited any one to take water whom it had the defendant is now supplying, a majority of not a charter right to solicit, and does not the business blocks and buildings and many intend to solicit or supply any one or supof the residences in the village of New Hart-ply any place not authorized by the terms of ford with water. The defendant and its predecessors have had various reservoirs on Stone brook since 1825 and have distributed the water by pipes from the distributing point. This point for about 20 years after 1860 was a cobblestone reservoir on the hill near Steele Road. Later, between 1890 and 1900, this was abolished and the water was piped to the dry well mentioned in the charter, which became the new distributing point. By this change Mr. Woodruff's house and a few other houses supplied with the water were left above the distributing point and were supplied by service pipes from the main above the dry well. After the granting of its charter the defendant, on account of the inadequacy of its reservoir and the liability of the water therein to become contaminated by surface drainage, constructed a new dam and reservoir higher up the Stone brook. The defendant has purchased water pipes and intends to lay them from its new dam its charter unless Mr. Woodruff and the two or three others, who at the granting of the charter were as aforesaid taking water through service pipes, which tapped the old main above the dry well, and that the defendant has not done, and does not propose to do, any acts that have been or will be attended with any actual and serious damage to the plaintiff or interfere with it in the management and maintenance of its water system. The court ruled that the plaintiff's charter confers upon it no exclusive right to use the streets of New Hartford for water pipes; that the digging up of the streets and laying of pipes as done, and proposed to be done, by the defendant do not constitute such an injury to the plaintiff as should be restrained by injunction; and that in supplying the houses above the dry well which have never been supplied therefrom, but from the pipe which supplied the dry well, the defendant had not exceeded its charter powers. From 360 appear in the opinion, the plaintiff's appeal its charter powers is a question to be raised was taken. Leonard J. Nickerson, of Cornwall, and Frank B. Munn, of Winchester, for appellant. Samuel A. Herman, of Winsted, and Frederick A. Jewell and Roger Jones, both of New Hartford, for appellee. THAYER, J. (after stating the facts as above). [1] The fundamental claim of the plaintiff is that the defendant, which is a corporation created by the Legislature under a special charter, is exceeding its rights under its charter, and that special damage for which it has no adequate remedy at law will result to the plaintiff from the defendant's ultra vires acts threatened and in process of execution at the time a temporary injunction was granted in this action. In support of this claim it in effect says that it has the exclusive right under its charter to lay pipes in the streets and highways of New Hartford, and that this right could not be impaired by the Legislature by the grant of the right to the defendant to lay pipes in those streets and highways. The court properly ruled that the plaintiff has not the exclusive right claimed by it. Its charter does not in express terms give The language is it such exclusive right. general, giving it the right to open the streets and highways of the two towns named therein for the purpose of laying its pipes. An intention on the part of the Legislature to grant a private corporation the right to open and lay its pipes in any and all the streets and highways of two country towns to the exclusion of all other persons and corporations will not be presumed. The grant is to be most strictly construed against the grantee and held to confer only such rights as are given in express terms or by clear implication. 4 Thompson on Corporations, § 5399; State v. Towers, 71 Conn. 657, 666, 42 Atl. 1083; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036. The cases cited by the plaintiff are those where an exclusive right was expressly given. In the present case the defendant's predecessors were occupying the streets wherein the plaintiff's pipes are laid long before the latter was chartered, and had continued to maintain those pipes until the defendant was incorporated, as the latter has since, and through them has supplied a majority of the business blocks and buildings and many of the residences of the village. The plaintiff's acquiescence in this occupation and use of the streets for this long period is a strong indication that the claim to an exclusive right on its part to lay pipes in the streets is of recent origin. As the plaintiff has not an exclusive right, the Legislature could properly confer upon others the right to open the streets and lay water pipes therein. [2] Whether the defendant is exceeding New only by its stockholders or by the state or by parties who receive some special damage from the claimed ultra vires acts. England Railroad Co. v. Central Railway & Electric Company, 69 Conn. 47, 58, 59, 36 Atl. 1061; Railroad Company v. Ellerman, 105 U. S. 166, 173, 26 L. Ed. 1015. [3] The court has found that the defendant is proceeding with care to lay its pipes; that there was no evidence that any of its pipes would be laid over or under a pipe of the plaintiff, except where they might cross its line in four places; and that in case of the removal or repair of one of the pipes at such places, while there is a possibility that some injury might be done to the other pipe, the possibility of injury to the plaintiff's pipes is remote and immaterial. Manifestly it is only the possibility which is incident to the maintenance of pipes in the same Such possistreet by different companies. bilities must have been contemplated and assumed by the plaintiff when it accepted its charter. But the defendant charter gives it power to acquire land and water rights on Stone brook, and to build, repair, and maintain such reservoirs as it may deem necessary for its purposes, and to open streets and lay down such pipes and conduits as shall be necessary to conduct and distribute water to the persons and places specified in the first section of the charter; that is, to those who had previously been supplied by distribution from the dry well. The defendant's acts in opening the streets for the purposes found by the court were within the powers thus conferred by the charter. If, therefore, the plaintiff will be specially injured by the possibility of damage arising from the crossing of its pipes by those of the defendant, this presents no ground for the relief prayed for. [4] Woodruff and two or three other persons on Steele street, all of whom were mem bers of the voluntary association of which the defendant is successor and are members of the defendant corporation, are supplied with water by means of pipes connected with the main supply pipe before it reaches the dry well. They were being thus supplied at the time the defendant's charter was grant The ed. By the new arrangement they are to be supplied directly from the dry well. plaintiff claims that in supplying these persons with water the defendant is exceeding its powers for the reason that they are not persons to whom the charter gives it power to furnish water, and that the plaintiff is damaged by being thus deprived of possible customers. Strictly speaking, these parties were not supplied with water from the dry well, and so not within the class to whom But the the defendant may supply water. dry well was not a reservoir as the cobblestone reservoir was which this replaced. It is simply a well from which, by means of a tee or otherwise, water was taken from the main supply pipe by means of smaller ones through the different streets to the different takers. Tapping the supply pipe a few feet above the dry well for the use of the parties on Steele street was substantially the same thing. It is not conceivable that the Legislature should have intended to exclude these takers of the water and who are members of the defendant company from the class to be thereafter supplied. No reason appears why this should have been intended. While the same rule applies in construing the defendant's charter which we have applied in construing the plaintiff's, we think it is clearly to be implied that the Legislature did not intend to exclude these members of the corporation which it APPEAL AND ERROR (§ 1123*) DISPOSITION OF CASE-FAILURE OF JUSTICES TO AGREE, Where a majority of the justices of the Supreme Judicial Court cannot concur in any judgment for plaintiff or defendant, the report will be discharged. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4421-4427; Dec. Dig. § 1123.*] droscoggin County, at Law. Action by Luther C. Abbott, administrator, W. H. Judkins, of Lewiston, for plaintiff. ant. was creating from the class of persons for I. B. Clary, of East Livermore, for defendwhose benefit it was created; that they are within that class; and that it was not a violation of its charter for the defendant to supply them with water. PER CURIAM. A majority of the Justices not concurring in any judgment for ei [5] A Mrs. Bossi and another person, who ther plaintiff or defendant, the entry will be: Report discharged. (110 Me. 500) BLAISDELL v. INHABITANTS OF TOWN OF YORK. 1913.) 1. HIGHWAYS (§ 29*)-ESTABLISHMENT-PETITION-DESCRIPTION OF Road. responsible persons may present to the county Under Rev. St. c. 23, § 1, providing that commissioners a written petition describing a way and stating whether its location, alteration, etc., is desired, and that the commissionto the description without adhering strictly to ers may act upon it conforming substantially its bounds, in order to give the commissioners with reasonable definiteness, but, as the reason jurisdiction the petition must describe the way for this requirement is to give parties interested such information as will enable them to be present and be heard, the description, while it expressed with great technical precision, but is must not be vague and indefinite, need not be sufficient if it sets forth the termini and the route with reasonable certainty and reasonable and approximate definiteness. are not members of the defendant corporation, are being supplied by it with water in excess of its powers under its charter, as the plaintiff claims. These persons are the owners of places which were being supplied with water by the voluntary association when the defendant's charter was grant- (Supreme Judicial Court of Maine. July 1, ed, and so clearly fell within the class which the defendant can supply under its charter as the successors and assigns of those who at the time the charter was granted were being supplied at those places. The places being places which were at that time being supplied, the defendant is within its charter rights in supplying water at those places. [6] The court has found that the defendant has not done, and does not propose to do, any acts that have been or will be attended by any actual and serious damage to the plaintiff or that interfere with it in the management or maintenance of its water system and charter rights. This finding precludes the defendant, for the reasons already stated, from attempting to question the validity of the defendant's organization or whether it has properly acquired the property and rights of the voluntary association named and recognized as such in its charter. This and the view which we have taken of the defendant's rights under its charter removes also the necessity of considering the numerous requests for changes in the finding, which all relate to the questions thus precluded or removed by our construction of the charter, and the necessity for considering the rulings upon evidence assigned for error by the appeal, which also only bear upon the same questions. There is no error. curred. The other Judges con Cent. Dig. 88 47-59; Dec. Dig. § 29.*] and bridge, describing it as a county way be- JU-recite that such places were public and con- 3. HIGHWAYS (§ 63*)-ESTABLISHMENT [Ed. Note.-For other cases, see Highways, Cent. Dig. § 168; Dec. Dig. § 63.*] 4. JUDGMENT (§ 9*) JUDGE EFFECT. DISQUALIFICATION OF Under Rev. St. c. 4, § 7, requiring the posting of notice of the warrant for town meetWhere a statute provides that, in a cerings in a public and conspicuous place and tain case or under certain events a judge shall requiring a return to be made on the warrant not sit or act, any judgment rendered by him in stating the manner of notice and the time when such a case is coram non judice and utterly it was given, the officer's return is the only void, notwithstanding an attempt to waive dis- competent evidence of the posting in a public qualification or confer jurisdiction by consent. and conspicuous place, and this cannot be shown by evidence aliunde. [Ed. Note. For other cases, see Judgment, Dec. Dig. 9;* Judges, Cent. Dig. §§ 237, 239.) 5. COUNTIES ( 57*)-COUNTY BOARDS OPERATION AND EFFECT OF DECISIONS. Where jurisdiction is lacking, the judgment of county commissioners is open to collateral attack, but otherwise its proceedings are binding unless quashed on certiorari or set aside on appeal. [Ed. Note. For other cases, see Counties, Cent. Dig. 88 74, 75; Dec. Dig. § 57.*] 6. BRIDGES ( 20*)-CONTRACTS-INVALIDITY -ESTOPPEL. Where the Legislature, on the petition of the selectmen of a town, authorized county commissioners to lay out a way and bridge, the commissioners, on a petition of residents and taxpayers of the town, made an order laying out such way and bridge after notice to the inhabitants of the town by service upon the town clerk and by posting and publishing notices, no objection was made or appeal taken by the town, and it thereafter at a special town meeting voted to build the bridge as laid out by the county commissioners and appointed agents to make a contract for that purpose, the town was estopped after performance of the contract to deny liability on the ground that one of the county commissioners was disqualified. [Ed. Note.-For other cases, see Bridges. Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. § 20.*] 7. TOWNS (8 19*)-TOWN MEETINGS-WARBANT-RETURN-AMOUNT. Under Rev. St. c. 4, § 10, providing that, when omissions or errors exist in the returns of warrants for town meetings, they shall be amended on oath according to the fact by the officer whose duty it was to make them correctly, an amendment of a constable's return of the warrant for a special town meeting was nullity where not made on oath. a [Ed. Note.-For other cases, see Towns, Cent. Dig. 88 24-27; Dec. Dig. § 19.*] 11. HIGHWAYS (§ 99*)-BRIDGES (§ 20*)—EsTABLISHMENT-DUTY OF Town. Where county commissioners, acting upon a petition of taxpayers of a town, decided that public convenience and necessity required the laying out of a way and construction of a town two years in which to open it, it was the bridge, and laid out such way and allowed the duty of the town to construct the way and bridge, which it could not evade by failing to raise the necessary money therefor. [Ed. Note. For other cases, see Highways, Cent. Dig. 88 323-330; Dec. Dig. § 99;* Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. § 20.*] 12. HIGHWAYS (§ 99*)-BRIDGES (§ 20*)-OFFICERS-POWERS AND DUTIES. The selectmen of a town had no power to proceed in behalf of the town to construct a highway and bridge laid out by county commissioners until authorized by the vote of a town meeting. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 323-330; Dec. Dig. $ 99;* Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. § 20.1 13. HIGHWAYS (§ 113*)-BRIDGES (§ 20*) CONSTRUCTION OFFICERS POWERS AND DUTIES IN CONJUNCTION WITH." build a highway and bridge laid out by the Where a special town meeting voted to board of county commissioners and also by vote appointed a committee of four persons named to act in conjunction with the selectmen in building such highway and bridge, a single committee of seven members was created and not two boards which were required to act concurrently, and hence, the selectmen having refused to act, the four other members of the committee, acting unanimously, had power to [Ed. Note. For other cases, see Towns, Cent. contract for the construction of the way and Dig. 88 24-27; Dec. Dig. § 19.*] WAB bridge, since "in conjunction with" meant "in association with," "combined with," or "united with." [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 348-352, 355; Dec. Dig. 113;* Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. 20.1 8. TOWNS (§ 19*)-TOWN MEETINGS BANT-RETURN-SUFFICIENCY. Under Rev. St. c. 4, § 7, requiring an attested copy of the warrant for town meetings to be posted in a public and conspicuous place in the town and requiring the person who notifies the meeting to make return on the war-14. WORDS AND PHRASES "COMMITTEE." rant, stating the manner of notice and the A "committee" is a person or persons to time when it was given, where the return show-whose consideration or determination certain ed the posting of the notice in places known business is referred or confided. as a matter of common knowledge to be public [Ed. Note.-For other definitions, see Words and conspicuous, the failure of the return to and Phrases, vol. 2, p. 1309.] The execution of a contract for the construction of a bridge by the duly authorized agents of a town rendered the town liable for its cost, which it could not defeat by failing to make an appropriation to meet such cost. [Ed. Note. For other cases, see Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. § 20.*] 16. BRIDGES (§ 20*)-CONSTRUCTION TRACTS-LIABILITY. CON Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, and BIRD, JJ. Cleaves, Waterhouse & Emery, of Biddeford, Frank D. Marshall, of Portland, and John C. Stewart, of York Village, for plaintiff. James O. Bradbury, of Saco, and E. P. Spinney, of North Berwick, for defendants. Where a town appointed a committee of CORNISH, J. This is an action of asseven, three of whom were the selectmen, to sumpsit brought by the plaintiff to recover build a bridge, and upon the selectmen's refusal to act the four other members of the committee the sum of $51,066.71, the amount alleged to made a contract for the construction of the be due him under two contracts made with bridge, communications sent by the selectmen the defendant town for the construction of a to the other committeemen and to the contractor, denying the authority to make the contract, way and bridge across York river. protesting against the work, and disclaiming declaration contains one count for breach of liability on behalf of the town, did not relieve contract, another on an account annexed the town of liability on the contract; the select- for labor performed and materials furnished, men having no authority to rescind the conand also the common counts. tract or prevent its execution. [Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. § 20.*1 17. BRIDGES (§ 20*)-CONSTRUCTION CON TRACTS LIABILITY. Where a town meeting by vote appointed a committee of four to act with the selectmen in the construction of a bridge, the four committeemen, upon the refusal of the selectmen to act, made a contract for the construction of the bridge, and at a subsequent meeting it was voted that such committeemen be dismissed from further service, a supplemental contract made by such committeemen thereafter was unauthorized and void, since their authority was revocable, but the revocation of their authority did not prevent the contractor recovering for work thereafter performed under the original contract, which was authorized. [Ed. Note. For other cases, see Bridges, Cent. Dig. §§ 37-44, 46, 47; Dec. Dig. § 20.*] 18. BRIDGES (§ 20*)-CONSTRUCTION TRACTS-LIABILITY. CON A contractor with the agents of a town is bound to ascertain and take notice of their power to bind the town, and, if the persons assuming to act as agents do so without authority, the contractor cannot recover. [Ed. Note.-For other cases, see Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. § 20.*] 19. BRIDGES (§ 20*)-CONSTRUCTION CONTRACTS-LIABILITY. The acceptance and use by a town of a bridge constructed under an unauthorized contract did not bind it to pay therefor, although beneficial to it. The This is one and well-nigh the final chapter in a varied and prolonged litigation arising from the laying out and construction of the York Bridge, so called, connecting the towns of York and Kittery. The history of the case is this: The first step towards the laying out and construction of this way and bridge was taken when the selectmen of York, two of whom continued to act in that capacity during all the subsequent controversy, petitioned the Legislature for the passage of a special act authorizing the construction of a highway and bridge across York river. Such an act was necessary because the proposed way and bridge would cross tidewaters. Cape Elizabeth v. County Com'rs, 64 Me. 456; Chapin v. Maine Central R. R. Co., 97 Me. 151, 53 Atl. 1105; Chase v. Cochrane, 102 Me. 431, 67 Atl. 320. This authority was conferred by chapter 50 of the Private and Special Laws of 1905, which was approved and took effect February 17, 1905. On April 4, 1905, Seabury Wells Allen and 169 other residents and taxpayers of the defendant town petitioned the county commissioners of York county to lay out the way in question as one required by common convenience and necessity. This petition was entered at the April session, 1905; hearing was had on May 18, 1905; the petition was grant [Ed. Note.-For other cases, see Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. § 20.*] 20. BRIDGES (§ 20*)-CONSTRUCTION-INTER-ed and the way laid out. The matter was EST. Where a contract with a town for the con struction of a bridge provided for payment monthly to the contractor for all work done and materials furnished during the preceding month, and such payments were duly demanded but not made, the contractor was entitled to interest on the amounts due him from the time they became due under the contract. [Ed. Note. For other cases, see Bridges, Cent. Dig. 88 37-44, 46, 47; Dec. Dig. § 20.*1 Report from Supreme Judicial Court, York County, at Law. then continued to the January session, 1906, when the report was recorded and the proceedings closed. From this action of the county commissioners no appeal was taken. At the annual meeting held in March, 1906, an article was inserted in the warrant to see if the town would appropriate a sufficient sum of money for the construction of the bridge and highway as laid out by the county commissioners. This article was indefinitely postponed. Action by Edward B. Blaisdell against the A special town meeting was held on OcInhabitants of the Town of York. On report tober 13, 1906, "to see if the town will vote from the trial court. Judgment for plaintiff. | to build the bridge and approaches as laid out |