MUNICIPAL CORPORATIONS - LIABILITY TO ABUTTING PROPERTY OWNER FOR NEGLIGENCE IN SPRAYING TREES ON HIGHWAY

The defendant, a municipal corporation, used a poison spray on the trees on the highway under the authority and express duty of certain statutes that declared browntail moths and other insects a nuisance. This was done in such a manner that a part of the spray fell on the abutting land of the plaintiff, and caused the death of her poultry. The plaintiff instituted this action, relying on two counts, one alleging negligence and the other alleging an unreasonable use of the highway. Held, that the plaintiff could not recover on the first count because the abatement of this nuisance as defined by the statute was a governmental function and hence, in accordance with the usual rule, the city was not liable for the negligence of its employees in the absence of express statutory recognition of liability; and there could be no recovery on the second count since a use of the highway authorized by statute could not be deemed unreasonable unless there was negligence, which was not alleged.

Gilman v. City of Concord, (N. H. 1937) 195 A. 672.