39 Iowa 575 | Iowa | 1874
I. That any persons may “ raze houses to the ground to prevent the spreading of a conflagration,” without incurring any liability for the loss to .the owner of the. houses destroyed, is a doctrine well established in the common law. The maxim of the law is, that' “ a private mischief is to be endured rather than a public inconvenience.” 2 Kent’s.Com., 338. Lord Coke says: “For the Commonwealth, a man shall suffer damage; as for the saving of a city or town, a house shall be plucked down if the next be on fire. This every man may do, without being liable to an action.” Mouse's Case, 12 Coke, 63; Id., 13. In Respublica v. Sparhawk, 1 Dall., (Pa.), 383, McKean, Chief Justice, says: “ Of this principle, there are many striking illustrations. If a road be out of repair, a passenger may lawfully go through a private inclosure. So, if a man is assaulted, he may fly through another’s close. In time of war, bulwarks may be built on private ground. * * * Houses may be razed to pre-. vent the spread of fire, because of the public good.” In Dillon on Municipal Corporations, Sec. 756, the learned author states the common law doctrine as clearly and succinctly as it is any where to be found. He says: “ The' rights of private property, sacred as the law regards them, are yet subordinate to the higher demands of the public welfare. Solus populi
The plaintiff does not, however, seek to recover against the mayor who directed, and the persons who assisted in the destruction of his buildings, but he seeks to make the city liable on the principle of respondeat superior. It is claimed that the destruction of plaintiff’s buildings was not necessary in order to extinguish the conflagration then in progress; that the act- was, therefore, not justifiable at the common law, under the rule of necessity; and that since the city, by its ordinance, had authorized the mayor to judge of the emergency, and direct the destruction of the buildings, an act which any individual might do at his peril, without any statute, it thereby made the act that of the corporation.
In Fisher v. City of Boston, 104 Mass., 87, which was an action to recover damages for personal injuries to the plaintiff caused by the alleged negligence of the officers and members of the fire department in performing their duties in putting out a fire in the city, it was held that the corporation was not liable, -although the fire department was established and regulated under a special statute, which, by its terms, required acceptance' by the city council before it took effect. It wras said by Gray, J., in delivering the opinion of the court, that, “ the extinguishment of fires is not for the immediate advantage of the town in' its corporate capacity,” and it was held, that, in the absence of any express statute, municipal corporations are not liable for injuries occasioned by reason of negligence in using or keeping in repair the fire engines of the city.
It is further held, in the same case, that it makes no difference whether the legislature itself prescribes the duty of the officers charged with the repair and management of fire engines, or delegates to the city or town the power to define those duties by ordinance or by law.
In McDonald v. The City of Red Wing, 13 Minn., 38, it was held that a city is not liable for the destruction of a building torn down to arrest the progress of a fire, unlesssuch liability is created by statute; and, that it makes no difference whether such building is torn down under the direction of the city officers assuming to act in their official capacity, or by the citizens and bystanders on their own motion.
In Wheeler v. The City of Cincinnati, 19 Ohio St., 19, the Supreme Court of Ohio said that “ the laws of this state have conferred upon its municipal corporations power to establish and organize fire companies, procure engines and other instruments necessary to extinguish fire, and preserve the buildings and property within its limits from conflagration, and to pre
In Western College, &c., v. The City of Cleveland, 12 Ohio St., 375, which was an action against the city to recover for property destroyed by a mob, based upon a clause of the city charter, in reference to the city'couneil, which provided that “ it shall be their duty to regulate the police of the city, preserve the peace, prevent disturbances and disorderly assemblages,” it was held that the duty intended was that-properly appertaining to an administrative and legislative body, acting in the government of the city — the making regulations, bylaws and ordinances for the purposes specified, to be enforced by the appointment of officers; and that neither on general principles, nor from the effect of the enactment, was the city responsible for the destruction of property by a riotous assemblage of persons, or for the neglect of the officers in not preserving the peace and preventing the destruction of property.
In Dunbar v. The Alcalde, &c., of San Francisco, 1 Cal., 355, it was held that a municipal corporation is not liable for the destruction of a building, in pursuance of the direction ofj its officers, where no statute exists creating such liability. This deeision was made in a ease where the building of plaintiff had been blown up by the Alcalde’ and other officers of the city during a conflagration, for the purjmse of staying its •progress, and where the destruction of the building by fire ■-was not inevitable.
In Russell v. The Mayor, &c., of New York, 2 Denio, 461, the statute provided, “ that when any building or buildings in
In Stone v. The Mayor of New York, 25 Wend. 156, it was held that the lessee of a building in the city of New York, destroyed by fire by order of the Mayoi-, to prevent the spread of a confiagi'ation, was not exxtitled to x*ecover damages for merchandize in the building at the time of its destructioix not belonging to him but the property of others, aixd which was in his possessioxi as a factor, or merely oix storage. The ground of this decision, like that in Russell v. The Mayor, etc., supra, is that thex’e was no liability on the part of the city to make compensation for property destroyed, except as, and to the
. This is the doctrine of all the cases we have found with the. single exception of Bishop & Parsons v. The Mayor, etc. of Macon, 7 Geo., 200. There the city was held liable for blowing up the building of the plaintiff. No authority is cited except Lord v. The Mayor, etc. of N. Y., 18 Wend., 126. This case was decided both in the Supreme Court, 17 Wend., 285, and in the Court of Errors upon the ground that the statute of the State had expressly made the corporation responsible, and not .upon the ground of any common law liability. The decision stands alone, and in the language of the Supreme Court of California, Dunbar v. San Francisco, 1 Cal., 358, “ Without some provision in the charter, or some statutory, enactment, imposing the liability upon the city, I do not see how that decision can be sustained.”
In Taylor v. Plymouth, 8 Met. (Mass.,) 462, which was an action to recover against the town for a building torn down to stop.a lire, Cu. J. Shaw, says: “In order to charge the town, the remedy being given by statute only, the case must be clearly within the statute. Independently of the statute, the pulling down of a building in a city or comjtact town, in time of fire, is justified upon the great doctrine of public safety, when necessary, * * * . But if there be no necessity, then the individuals who do the act shall be responsible. This is the more reasonable, as the law has vested an authority in the proper officers to judge of that necessity. But the town is responsible by force of the statute only, and such responsibility is confined to the cases specially content-plated.” In support of the same doctrine of the non-liability/ of the corporation in the absence of an express statute,- seej the following additional cases. Weightman v. Washington, 1 Black., (U. S.) 49; Coffin v. The Inhabitants of Nantucket, 5 Cush., 269; Hafford v. City of New Bedford, 16 Gray, 297; Ruggles v. Nantucket, 11 Cush., 433; Parsons v. Pettengell, 11 Allen, 511; Surocco v. Geary, 3 Cal., 69; Brinkmeyer v. Evansville, 29 Ind., 187. See also cases cited in notes to Section 773,. of Dillon on Mun. Corp., p. 732; and see
In the case before us the statute (Bev., § 1057,) authorizes municipal corporations to “ protect the property of the municipal corporation and its inhabitants.” Section 1058 empowers them to make “ regulations for the purpose of guarding against danger from accidents by fire.” Section 1071 confers the power upon the city “ to make and publish from time to.
We will not stop to determine whether these statutory provisions do or do not confer authority upon the city to pass the ordinance under which plaintiff’s property was destroyed, for if they do not confer such authority, the city, in its corporate capacity, could not be made liable for the unauthorized act of' any of its officers. The ordinance would be void, and would confer no authority on the Mayor or other officers to do the act complained of, and the city would not be liable therefor; See Dunbar v. San Francisco, supra, and cases cited on p. 356. If, on the other hand, the ordinance is valid, and authorized the Mayor to judge of the emergency and do what, by the common law, any individual might do at his peril without a statute upon the cases cited, the city is not liable for the consequences of his acts in the absence of a statute creating such liability. ■ *
There are several satisfactory answers to this position; First, the power of eminent domain is vested in the' State,
Third, in addition to the reasons above given, the great weight of judicial authority holds that the destruction of property under authority conferred by law upon officers of municipal corporations is not an exercise of the power of eminent domain, but is a regulation of the right which individuals possess to destroy private property in cases of inevitable necessity, to prevent the spreading of fire or other great calamity. The following cases hold that, the destruction of property under such circumstances is not the exercise of the right of eminent domain: Russell v. Mayor, etc., of N. Y., supra; The Am. Print Works v. Lawrence, 3 Zabriskie, 595, 615; McDonald v. City of Red Wing, 13 Minn., 38, 41, 42; Stone v. Mayor, etc., of N. Y., 25 Wend., 172, 173; Opinion of Senator Verplank; Surocco v. Geary, 3 Cal., 69, 73, 74; Dunbar v. The Alcalde, etc., of San Francisco, supra. The following cases, while they do not expressly decide, support the same doctrine: Taylor v. Plymouth, 8 Met., 462, 465; The Mayor, etc., v. Lord, 18 Wend., 126; Conwell v. Emrie, 2 Carter (Ind.), 35.
While there are to be found in the opinions of judges in some cases, expressions leading to a different view, we have found no case directly holding a doctrine different from that of the cases above cited on this point.
We find no authority, either in the adjudged cases or in legal principles, upon which to hold the municipal corporation liable for the act of the mayor in ordering the destruction of plaintiff’s buildings. The judgment of the Circuit Court, in sustaining the demurrer to the plaintiff’s petition, must be
Affirmed.