42 Mass. 284 | Mass. | 1840
This is an action on the case to recover damages, for injuries to the plaintiff’s lands by flowing, caused by the erection of an embankment by the agents of the defendants. It appears by the case that a highway was laid out, through the town of Adams, and that it crossed the Hoosic rwer, where it
One question discussed was, whether an action sounding in tort would lie against a municipal corporation. We can have no doubt, that an action upon the case will lie against municipal corporations, when such corporations are in the execution of powers conferred on them, or in the performance of duties required of them by law, and their officers, servants and agents, shall perform their acts so carelessly, unskilfully or improperly, as to cause damage to others. This falls within the very general principle, that the superior or employer shall be answerable civiliter for the mismanagement and negligence of the agent employed by him, by which another is damnified. Sutton v. Clarke, 6 Taunt. 29. And although such action sounds in tort, to mark the distinction between this and an action upon contract ; yet the true view of considering it, is that of a legal liability to indemnify another against negligence of one for whom the law holds him responsible. It implies no wilful act, or intended wrong, and, therefore, requiring no vote or corporate act to create the liability, it may as well lie against a corporation as an individual person. We think it stands on the same footing on which it is now held, both in this country and in England, contrary to the ancient notions on that subject, that corporations may be liable on implied promises raised by law from their legal liabilities. Gray v. Portland Bank, 3 Mass. 364. Bank of Columbia v. Patterson, 7 Cranch, 299. Clark v. Mayor, &c. of Washington, 12 Wheat. 40. Beverley v. Lincoln Gas Light and Coke Co., 6 Adolph. & Ellis, 829. But where individuals, although pro
Looking at the declaration in the present case, it is not shown that the town was under any obligation, in its corporate capaci ty, to erect and build this highway, or that the dam complained of was a part of the highway, or that the damage complained of resulted from the negligence of the agents and officers of the town, in the performance of any corporate duty. The court are, therefore, of opinion that the action cannot be maintained. We do not, however, put this decision merely upon the form of the declaration. We are strongly inclined to the opinion that in no mode of declaring upon the facts, as we understand them, could the plaintiff recover.
We are not aware that the town would be bound, or have a right, to erect a separate and independent work, not lying within the line of the road as laid out, or adjacent to it, but wholly detached from it, although such independent embankment or other work might facilitate the building, maintenance and future repair of the highway ; nor are we aware of any authority, on the part of county commissioners, to require of towns the execution of such a work. No provision is made by law, for the estimate and payment of damages for land taken for the erection of such detached work, or for the incidental damages arising therefrom. The case is not expressly provided for, in any of the acts im
In the present case, the damage complained of appears to have been caused by the erection of a dam, for the building of which the town were not responsible, and therefore this action cannot be maintained. Plaintiff nonsuit