12 Mo. 414 | Mo. | 1849
Lead Opinion
delivered the opinion of the court.
The only question presented by this record, is whether the city of St. Louis is liable to an action for damages consequential upon the grading and paving of a street, directed by the city authorities in pursuance of an ordinance authorized by the city charter. The declaration in this case charged that the work was done so negligently that the water, which before the improvement of the street passed off by a natural channel, was thrown upon the plaintiff’s premises, and overflowed his cellars, and otherwise greatly impaired the value of his'building; but upon the trial, the court instructed the jury that the corporation was liable for the injury complained of, whether the grading of the street and the culvert constructed to carry off the water were properly made or not. So that the naked question is presented, whether the corporation is answerable in a civil action for consequential injuries of this charac*ter, however skilfully her agents may have executed the powers en^ trusted to them.
There is, no doubt, great difficulty in legislating so as always to secure a harmonious co-operation of private rights with public convenience, and it will prove a delusive expectation, to hope that any efficient municipal organization, either in states or cities, can be maintained, without an occasional restriction upon the enjoyment of private property. It has long since passed into a maxim, that the safety of the people is the supreme íaw, and as a corollary from this ancient truth, that individual convenience must yield to the public good. How far this principle may be extended, so as not to impair that enjoyment of private property which it is the duty of all just governments to protect, is a question which must be addressed td the political power in a government. The remedy for injuries sustained by acts of local municipal legislation is best obtained by a judicious limitation of the power thus entrusted to corporations, or by suitable provisions in the charter, for equitable compensation to the parties injured. It will be quite obvious, that if actions at law are sustained to adjust these questions, a wide door willlbe opened to speculation; litigation will be grealy increased, and the efficiency of municipal corporations very much impaired. It
If a fqrt or arsenal be erected upon public ground', but so near to a private dwelling house as greatly to impair its value, no action lies against the State. 4 Term R. 794. If a public road be constructed,
The question we have been considering is not a new one, and we are not without authority, both in England and in several of our sister States, fully sustaining the position we have assumed.
In Wilson vs. Mayor, &c., of New York, (1 Denio 597) the action was very similar to the present. The plaintiffs sued the city of New York, for so carelessly grading and paving a street, that the water was prevented from flowing off from the plaintiff’s premises, and for omitting to construct a drain or sewer by which the water could be carried off. The court held that the action would not lie. They considered the corporation of the city as not responsible for damages occasioned by the construction of works of this character, which the charter of the city expressly authorized them to make, and that, although it was the duty of the city authorities to build the sewer or drain, the want of which was camplained of, yet for a neglect qf this duty the corporation was not responsible in a civil action.
The case of Mayor of New York vs. Bailey, (2 Denio 433) which was determined in the court of errors about the same time with the de-. cisión of the supreme court in Wilson vs. Mayor, &c., we do not understand as at all conflicting with the principles determined in the latterpase. The court of errors held, as the supreme court had held pre-, yiously, that the corporation of New York was liable for the negligence
The principal difficulty in that case arose out of the fact that the commissioners appointed to superintend the erection of the work were appointed by the legislature of New York and not by the city ; and it was-upon this ground mainly that the case was contested and gave rise to> some difference of opinion among the members, of the court. This point however has no bearing upon the subject now under consideration.
In Pennsylvania the liability of' municipal corporations in cases like the present, has been considered by the courts, and their repeated adjudications are against the liability of the corporations. In Green vs. The Borough of Reading, (9 Watts 382) the action was brought by a citizen of the Borough to recover damages against the corporation for filling up the street in. front of his house, whereby he lost the use of an alley, and the use and occupation of his house and lot. The court held, that the action would not lie; that the corporation, having the power by charter to pass ordinances for improving the streets, was not responsible for exercising that power, although it might produce temporary inconvenience to individuals.
The same doctrine was fully recognised by the supreme court of Pennsylvania in the case of Mayor, &c. vs. Randolph, (4 Watts & Terg 516.) This was an action against the city corporation of Philadelphia
In Massachusetts the same general principle is distinctly recognised in the case of Callender vs. Marsh, (1 Pick. 418) and strongly enforced and illustrated by argument and authority. That was an action against a surveyor of the highway for digging dovm the streets by the plaintiff’s dwelling house, and taking away the earth, so as to lay bare the foundation1 walls of the house, and endanger its falling; in consequence of which the plaintiff was obliged, at great expense, to build up new walls, and otherwise secure his home. After determining the question that the surveyor, under the laws of that State, had power and authority to dig down streets, about which question there was much discussion, the court held that the surveyor was not liable, unless indeed his acts, were ihe result of a malicious and wanton exercise of power. They declare that a person cannot be liable to an action as for a tort, for an act which he is authorised by law to do. It is manifest that there is no principle upon which the surveyor of roads in that S'tate could be exempted from responsibility for an act done in pursuance of law, which would not have applied to a municipal corporation, had the same duties been entrusted to it.
The case of Thayer vs. city of Boston, (16th Pick. Rep.) merely decided that the city corporation was liable to an action on the case for acts done by its authority, it being conceded that the acts done were illegal and wrongful.
• The case of Goodloe vs. city of Cincinnati, (4 Ohio R. 600) has been supposed to be an authority in support of the doctrine that corporations in cases of consequential damage are liable to actions on the case,. The opinion of the court in that case is very brief, and see«ns
The case of Rhodes vs. city of Cleveland (10 Ohio Rep. 159) is still more unsatisfactory. The facts of the case are not stated, but the court maintain the responsibility of the corporation in the most unqualified terms. “If an individual” say the court, “exercising his lawful powers commit an injury, the action on the case is the familiar remedy: if a corporation, acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them, to repair it, and no reason occurs to the court, why the same remedy should not be applied to compel justice from them.” Upon this reasoning the court came to the conclusion, that “justice and good morals required that a corporation should repair a consequential injury, which ensues from the exercise of its functions.” Whatever may be thought of the moral obligation resting upon a municipal corporation or a State to redress injuries to individuals occasioned by an exercise of lawful and constitutional power, the question to be determined is, whether upon principles of law there is a liability in such cases to an action, and in determining the question it is manifest that the supreme court of Ohio, did not advert at all to the distinction between the liabilities
In the case of the governor See. vs. Meredith and others, (4 D. & G. 794,) it was held, that where an act of parliament authorized commissioners to pave, by re&s'ó& of which an individual was injured in his property, and there was no excess of jurisdiction oh the part of the commissioners, neither they nor their servants were liable for such acts. The same point was determined in Sutton vs. Clark (6 Taun. 42) and Harman vS. Tappenden (1 East. 555.)
A question has been suggested, although it does h'C't arise here, Whether a wanton and malicious or negligent and unskillful exerbiSe of powers belonging to a corporation, would not render the corporation liable. That the agents of a municipal corporation rvbuld be responsible for Wanton and malicious injuries to individuals, under the pretext of discharging duties imposed on them by law, cannot be doubted, and Under Certain Circumstances} the corporation who appoints them will be equally liable. Harman vs. Tappenden 1 East. 555; Chesnut H. Co. &c. vs. Rutler 4 Serg. & Rawle 6 ; 3 Wils. 561. Such acts, from their very nature, must be either the assumption of powers not granted by law} or the abuse of Such as have been granted, and are therefore o longer within the protection of the general principle.
Judgment reversed*
Dissenting Opinion
dissenting*
Municipal Corporations having beeii ulmbSt cotemporary with the earliest institution of political sovereignty, no sufficient reason is perceived why the rule applicable to iheir transactions should not have been moulded into cotemporary consonahce with the radically opposite and progressive systems of government, which} amongst us, are held even farther to have overshadowed the advances of freedom once marked by them, than those advances were renowned and cherished for having supplanted in their early day} the assumed prerogatives of princes and the odious exactions of the feudal systeffi* Being but
By the 7th sub-division of the 13th article, it is declared that “courts bf justice ought to be open to every person, and certain remedy Afforded for every injury;” and, whilst it may be admitted that the language is but declaratory, it is nevertheless maintained, that, consistently with its sworn duty, the legiéíatuf e could not have authorized an “ injury” to be done, either directly or indirectly, in such a manner as to exclude the injured citizen from “certain remedy ?” Nor has it done so. The law incorporating the inhabitants of the city not only does not exempt, but expressly subjects them to be “sued,” and to “defend” themselves just as an individual or “ natural person;” and as it will not be pretended that for such an injury as the one complained of, one citizen would not be liable to the suit of another, it is respectfully submitted that the legal stature of this corporation, in respect to the immunity which is 'claimed for it, is as definitely fixed as that of the humblest or the proudest man within its limits, and that the act complained of, can have no analogy to the c'ommon láw exemptions, “ damnum absque injuria.”
If we descend, br rather ascend, from what is deemed to be the lavó
As to the impolicy, therefore, of subjecting corporations to suits of this character, if it were even an open judicial question, no sufficient reason occurred why a citizen who may sue his neighbor, should be restrained from similarly suing 6 or 7,000 (incorporated) for an injury which, as was proven in this case, despoiled him in contempt of his most earnest and admonitory protest, of atleast half the value of his property in a manner so unqualified and absolute, as to be redressed by a jury the vicinage, with all the facts before them, in a verdict of $1,675. That suits for smaller injuries might be brought by others, is conceived to be no more a reason for denying the right in respect to a corporation than as between individuals, and unless words have strangely lost their meaning, the constitutional injunction would seem to be as inoperative in the one case as in the other—leaving to the every day discretion and prudence of the injured party, whether for damages comparatively slight, he will incur the trouble and expense of asserting his rights.
From these premises, predicated upon our own system of constitutional [guaranties and just government, it may be readily admitted, without at all impairing the reasoning applicable here, that all the more ancient doctrines and “ authorities” (?) sustain amply and even redundantly the conclusions arrived at by the seinor members of this court. It is relied, however, on the other hand, that the more enlightened adjudications of later years, had been gradually adopting principles more
It did not appear to the court there, to be a sufficient reason against sustaining such a verdict as this, that in other states the remedy against corporations had not been carried so far. So long as it was kept apparent to a cool and enlightened investigation, that they did not transcend the line to which they were conducted by acknowledged principles, the mere fact that they might be going farther than adjudged cases had gone before, occasioned them no disquiet. It was in fact their duty to add the weight of precedent to the scale of right—and had they faltered, under such impressions as they seem to have entertained, no epithet would have been too severe to have applied to so great a derelection, as having foregone the convictions of a deliberate judgment to the mere numerical preponderance of previous decisions. It was admitted then, as now, that in the elder cases, whilst courts were hampered by the notion that corporate acts were to be performed under the authority of their seals, no suit like the present could be entertained. The agents, only, were regarded as responsible to persons injured. It was argued, however, with conclusive force, that since the great increase of corporations, and since so much of the business of the world is transacted through their agency, it becomes necessary that courts should meet their expanding poioers by an extension of the limits of their liability; and that one of the peculiar benefits which our system of jurisprudence possesses, is its capacity of enlargement and adaptation to the exigencies of the varying forms of social life.
££ That the rights of one should be so used as not to impair the rights
Whilst the reasoning in the Ohio case, just quoted, is deemed; to be irrefutable, and should consequently dispose of this case, there remains ^mother, and perhaps to many minds, even a plainer view to be taken of it. In the conclusion of the constitutional sub-division already referred to, it is declared “ that no private property ought to he taken or applied to public use without just compensation”—and it will not be pretended that the legislature co.uld authorize to be done, by a cowardly indirection, what the permanent will of the State had decreed, and written down in its constitution, ought not to be done in any spanner. In the case of Hooker vs. a canal company, the supreme court of' Connecticut held (note in U. S. Digest, vol. 1 p. 401) that ££ an injury to land which deprived the owner of the ordinary .us.e of it, is equivalent to a ££ taking” of the land ; and whpreno compensation is provided for, pr made to the owner for the injury sustained, he is entitled to recover damages for such injury.” In the case now under consideration, the testimony was plain, abundant and unequivocal, that in consequence of' the manner of paving the streets, and of the, insufficiency of the sewer, the water and filth of that part of the city was, thrown upon and into the lower story of the plaintiff’s house—sometimes rising even into the rooms of the second floor—undermining, sinking and throwing down portions of the foundation, cracking the walls and (altogether) rendering the property comparatively uninhabitable and valueless. The Connecticut case, which simply ££ deprived the owner of the ordinary use of his property”* could scarcely have been stronger than this; and if the judge of the court of' common pleas had given to the jury an additional instruction, in the words of that decision, it is imperceivable how, upon the principles of common sense or common justice (the only true foundations of common law) it could have been objected to as erroneous. 4s little could it.be objected to, if, in our courts, as in others, 9 Dana 114; 14 Ohio 147, 541; 5 Blackf’d 384, any benefit confered upon property thus injured or “ taken,” was allowed to be equitably set off’ against the damage complained of. Even in this case, the main Ipody of the testimony touching the measure of damages, seems to have.
“ If the jury believe, from the evidence, that the plaintiff was the owner, of the premises, in the declaration mentioned, and that the city of St. Louis (the defendant) in the improvements they made upon the streets and alleys, leading to and by the premises of the plaintiff, caused water, mud and filth to flow by and along the premises of the plaintiff,, and that the. works so constructed to carry off said water, filth and mud, was not of sufficient capacity and size to carry off the said water,, mud and filth as aforesaid, and that the same was thrown upon the premises of' the plaintiff, and overflowed his cellar and buildings, and that the plaintiff sustained damage to his house and lot, they will find the defendant guilty, and assess such damages as the said plaintiff has, proven he has sustained.
That this, is substantially the rule which ought to be applied in cases like the present, and that it would in no just sense impair the necessary-efficiency of city corporations, may be restated in. the recapitulation, which will close this paper.
1. The public alone, who judge of the necessity, and who enjoy the-convenience and reap the benefit of public improvements, should bear-whatever damage is thereby occasioned to pre-existing private rights. If, therefore, this case were referable, even in a greater degree than, has been supposed, to thq jurisprudence of other states and countries, the deference ordinarily paid to the opinions of those who have merely written before us, should ever be subordinate to the conviction, that as the judicial edifice which they have been rearing is but the work of finite and discordant minds, it becomes the duty of each tribunal, in its turn, to contribute to the symetry and perfection of its proportions, by no less firmly resisting and modifying such rules as are clearly erroneous, than by respecting and conforming to those which are hallowed by reason as well as by time.
2. As a judicial decision upon such a subject as this, however, should be based somewhat upon the political science of the country where it is rendered, and as with us, the constitution records that science, we should construe, if possible, as in unison with the spirit of that instru_ ment, all subsequent emanations.' of the. legislative will; and, as the act of 1843 contains nothing, even, by rational implication, to exempt the
These considerations, which might be greatly amplified and extended, have restrained a reluctant diseoncurrence both with the ethics and the law, which, having driven a citizen from his home now drives him from the halls of justice with the abasing humiliation confirmed to him in the shape of a judicial decision, that if the authorities of his great and growing city, to the treasury of which he renders his yearly proportion, see fit to employ the aggregate taxes thus accumulated, to empty upon him, instead of carry to the river, the wash and offal of all the neighboring streets and alleys, the saving to the city renders it an “ injury” of that class, for which the policy of the law allows him no “ remedy /”
Such a citizen (it is as respectfully as earnestly submitted) is but tantalized when told, that “ under certain circumstances” if he can establish that the corporation acted “maliciously,” ho can make them pay. That question was not in issue, and perhaps will never be, under the advice of any lawyer, who appreciates intelligently the difficulty of technically sustaining such an allegation. So long, therefore, as the city is subject alone to a rule like that, its corporation will be comparatively omnipotent, its inhabitants, by turns, oppressors and vassals.
