16 Wis. 247 | Wis. | 1862
Lead Opinion
By the Court,
According to the settled doctrine of this court, we must certainly take judicial notice of the provisions of the charter of the city of Milwaukee, and the various amendments thereto. They are public acts which need not be pleaded to bring them to the attention of the court. This point being assumed as settled, the case then presented by the complaint would appear to be this :
The appellant is seeking to recover damages, alleged to have been sustained by him in consequence of the city making the harbor improvement, known as the “straight cut,” a work which the city was specially authorized by the legislature to make. There is no allegation that these damages resulted from any unlawful or improper act on the part of the city authorities in making the improvement. But it appears that the appellant owns a lot bordering or situated upon the Milwaukee river, near the shore of lake Michigan, and also two lots situated on an island in that river, upon which he has a dock, ship-yard and other valuable improvements, and it is alleged that the waves and waters of the lake are driven by the wind through a canal or channel, made by the city, into the river and upon his lots; so as to wash them away or to render them insecure, dangerous and unfit for use.
“ While the plaintiff was successfully and profitably carrying on his said business of ship building at and upon the lots and within the channel aforesaid, the said defendant purposely and designedly, by its authoritative and official acts thereunto tending, relating and commanding, cut, removed, and carried away a large quantity of earth and solid matter, forming and composing the natural shore and bounds of the waters of lake Michigan and the Milwaukee river, and lying between said river and said lake, at and bordering upon a point in said city of Milwaukee, known and designated by and upon the surveyors plans thereof, as Center street, and did then and there excavate, dredge, cut and construct a canal 260 feet in width, and from 12 to 14 feet deep, extending from the navigable channel of said river to the deep and navigable waters of said lake, in the near vicinity of the plaintiff’s said lots and business, and the same was in the summer or fall of the year 1857 so far constructed and completed as to be thrown open and permit the said waters to mingle together, and the same has ever since remained open and unobstructed, and is known and designated as the “ straight cut harbor improvement.” It is then averred that whenever there is a high wind from the eastward the waters of the lake are driven in and through this canal into the river and against the appellants property, producing the injuries complained of.
Thus, it will be seen, the case presents the simple question whether the appellant can recover for such consequential damages thus resulting to his property from the city making the harbor improvement, a work it was specially authorized to do^ and done without any negligence, and in a proper manner. It appears to us, that the weight of authority is decidedly against the position that the action is maintainable.
It can be hardly claimed under the facts of the complaint that there was a taking, by the city, of the appellants property
There is a class óf cases which take a distinction between the liability of a municipal corporation which is created for governmental and police purposes, and a private corporation or individual and hold that a different rule applies. In the former, case as the damage resulted from a work executed by a public corporation for the public good the rule is more restricted, than when arising from acts done by a corporation or an individual primarily for private benefit and advantage. If the principle be settled by the authorities, as it appears to me it is, that a municipal corporation is not answerable for con
The appellant claims that he is 'entitled to the protection which the natural barrier between the lake and river affords.
There are undoubtedly cases which go far to sustain this action. In Ohio the broad doctrine is laid down that a municipal corporation is liable for injuries resulting to the property of others for the acts of such corporation, though acting within the scope of its corporate authority without any circumstance of negligence or malice. Rhodes vs. City of Cleveland, 10 Ohio 159; McCombs vs. The Town Council of Akron, 15 id., 474; same case in 18 Ohio 229.
In these cases a municipal corporation is placed upon the same grounds as an individual and held liable for any consequential damages, whether its agents act with due skill and caution in the exercise of corporate authority or not. But in Crawford vs. The Village of Delaware, 7 Ohio St., 459, the same court admits that the doctrine of those decisions, stands in direct conflict with the great current of authority in England and America. And an examination of the authorities cited on the brief of the counsel in this case, as well as others which we have met in our investigations, fully show that this admission was not hastily or inconsiderately made.
The doctrine of the Ohio decisions appears to be fully supported by that of Baron vs. The Mayor and City Council, of Baltimore; referred to by Justice Puntnam in Stetson vs. Faxon, 19 Pick. 147, 158. They are likewise cited with decided approval by Justice Smith in his opinion in Goodall vs. The City
The judgment is affirmed.
Concurrence Opinion
I concur in the decision of the court, that by the weight of authority, a municipal corporation, or public agent, acting in pursuance of law, and with due care and skill, is not responsible for consequential injuries to property which has not been actually taken for public use, occasioned by the construction of a public improvment. Though such consequential injury would, if caused by an individual, or purely private corporation, constitute a good cause of action. I place my assent upon the ground that the law seems to be so settled by a decided current of authority. And I make this statement for the reason, that in the case of Weeks vs. The City of Milwaukee, 10 Wis., 242, I approved the reasoning of Justice Smith in Goodall vs. The City of Milwaukee, 5 Wis., 39, which would sustain the opposite conclusion. I should now, if I felt at liberty to regard the question as a new one, hold that either a city or the state was liable for such damages. And by this I mean such damages as would be recoverable, if the injury was caused by a private person, by reason of their remoteness. The distinction between the two kinds of damages is well settled in the law. And with respect to the recovery of remote damages, municipal municipal corporations stand upon the same footing with all other defendants. They are not recoverable, not because the defendant is a municipal corporation, acting under authority of law, but because the damages
But I have been unable to see the applicability of much that has been said in some of the cuses about remote damages, where the injury shown, though consequential, was clearly not remote, but would have afforded a good cause of action if done by a private person. Such I regard the character of the injury alleged here. It seems to me, that if a man should build a dam upon his own land and cause the water to overflow the lands of his neighbor above, it might as well be said that the damages were remote, as to say so here.
The exemption therefore, can rest only upon the fact, that the injury is caused by a public agent acting under the authority of law with due care, the authorities having settled that there can be no recovery in such cases. I concede that the infliction of such damages, where no portion of the property of the plaintiff is actually taken or occupied for public uses, does not come within the letter of the constitutional provision, prohibiting the taking of private property for public use without compensation. Yet as a matter of justice, the right of the owner to such damage, is as clear as his right to compensation, where his property is actually taken. And to deny it, though not a violation of the letter, yet is entirely out of harmony with the spirit of that constitutional provision.
It is clear that the agents who execute such a public authority with proper care, ought not lo be personally liable. And this was really the question presented in some of the earliest cases out of which the doctrine of exemption from liability arose. And it seems to have grown up insensibly from the position that the agents should not be personally liable, which was founded upon good reasons, to the doctrine that there is no liability anywhere, which I think never ought to have been established. But as already said, believing the law to be so settled, I have concurred in the decision upon that ground.