162 N.Y. 563 | NY | 1900
The action is brought to restrain the continuance of a nuisance and for damages. The complaint alleged ownership and occupation by the plaintiff of a tract of land in the town of Brighton, county of Monroe; that the defendant owned a tract of land near plaintiff's premises on which it maintained the county penitentiary and the county almshouse, and until the sale of a portion of the premises to the state, an insane asylum; that the defendant owned and possessed another tract of land or farm across the road from that first mentioned; that a stream ran along said lands, and also along those of the plaintiff; that the defendant discharged the night soil, offal and garbage from the penitentiary, almshouse and insane asylum into said stream until the year 1883 when, in an action brought against the board of supervisors of the defendant, it was restrained from further permitting sewage to run into the waterway; that after said time and until the commencement of the action sewage and night soil were spread over the farm or tract of land on the opposite side of the road from the buildings, and that thereby the defendant created a nuisance to the great damage of the plaintiff's land and stock. The answer admitted the ownership of the parcels of land described in the complaint and denied the other allegations therein contained. The cause was tried at Special Term, and the learned court found, as matter of fact, that the defendant had maintained the nuisance charged in the complaint, and awarded to the plaintiff $600 for damages and an injunction perpetually enjoining and restraining the defendant from permitting any sewage or other foul or filthy matter from defendant's buildings or premises to run into the stream *566 mentioned, or to flow in any way over or past the lands of the plaintiff in such manner as to pollute the air thereon or the waters of the stream. The judgment entered on this decision was unanimously affirmed by the Appellate Division.
We are, therefore, confined in our examination to the question whether the facts, as found, sustain the conclusions of law, and to the consideration of any legal errors duly raised by exceptions as to the reception or rejection of evidence.
The facts alleged in the complaint and found by the court show, conclusively, that the county of Monroe acted in the premises in its governmental capacity, and it consequently follows that the conclusions of law based thereon holding it liable in damages to the plaintiff cannot be sustained.
It is clearly alleged and found that the county of Monroe for twenty years has been the owner and in possession of certain lands on which are located the penitentiary, almshouse and, prior to 1892, the Monroe county insane asylum; also, a farm of about sixty acres opposite the above premises on which have been constructed two large tanks or reservoirs, into which are introduced pipes running from said buildings conducting the sewage thereof, except the night soil of the penitentiary.
Few questions have given rise to more diversity of judicial opinion or greater conflict in judicial decisions than that of the liability of municipal corporations for the acts of their officers or servants. In every state in this country, as far as we know, that follows the common law, distinction is drawn between the class of cases in which the municipality is held liable for the torts of its agents and those in which it is held exempt. But not only the grounds on which the distinction is placed, but the line of cleavage itself between liability and non-liability differs greatly in different jurisdictions. Which distinction is the sound one, and whether any distinction will logically stand the test of final analysis, has been questioned. Nevertheless, in this state the rule governing the liability or non-liability of a municipal corporation has for the past twenty-five years been settled by an unbroken line of authority, *567
although there have been at times differences of opinion as to the application of the rule. In Maxmilian v. Mayor (
It is also to be remembered that the responsibility of this defendant for the acts of its officials is not the same as that which obtains in the case of ordinary municipal corporations. If the defendant was not liable for the negligence of the officers in control of the penitentiary and almshouse prior to the County Act of 1892, it is not rendered liable by that act. In Markey
v. County of Queens (
The learned court below was of opinion that the judgment could be upheld on the doctrine which prevails in the state of Massachusetts, and is stated in Hill v. City of Boston
(
Under the authority of the line of cases cited from this court we feel constrained to reverse this judgment. But the plaintiff is not, and has not been, without remedy. He could at any time maintain an action against the board of supervisors and the officers in the control of the public buildings and have the further continuance of the nuisance enjoined. Such a proceeding brought against specific officials who might be summarily dealt with, in case of disobedience of the judgment of the court, would be fully as efficient as a judgment against the county in its corporate character. The complaint discloses that in two actions by third parties against the board of supervisors, prior to the present suit, the plaintiffs were successful.
The judgment should be reversed and complaint dismissed, but without costs in any court.
PARKER, Ch. J., GRAY, BARTLETT and WERNER, JJ., concur; MARTIN and VANN, JJ., dissent.
Judgment reversed, etc. *569