McCombs v. Town Council of Akron

15 Ohio St. 475 | Ohio | 1846

Lead Opinion

Read, J.

The sole question in this ease is, whether a municipal corporation can be made liable for an injury resulting to the property of another, by an act of such corporation, strictly within the scope of its corporate authority, and unattended by any circumstance of negligence or malice.

. The case of Rhodes v. City of Cleveland, 10 Ohio, 159, with admirable good sense and strength of reason, answers this question, by asserting that corporations are liable, like individuals, for injuries, although the act was not beyond their lawful powers. The late learned Ch. J. Lane, who pronounced the opinion of the court in that instance, accounts for the elder cases, upon the ground that courts were hampered by the mystic notion attached to corporate seals, by which corporations ^withdrew themselves from responsibility, and cast it upon their agents. A sort of transcendentalism which enveloped both the courts and the profession in a mist growing out of the airy nothingness of the subject matter, enabled corporations, like the pestilence which walketh unseen, to do their mischief and escape the responsibility. It is refreshing to the jurist, and important to 'the rights of individuals, that these confused notions are yielding to a clearer light and more solid reason. The late chief justice, in the same case, manfully asserts the freedom of judicial action in matters of this sort, where for ages the professional and judicial mind has been hampered by the declaration that, in cases like the present, he did not look so much for precedents as to the following out of incontestable principles. In pursuance of this declaration he asserts, with unanswerable force, upon the most solid foundations of reason, morality, and law, “ That the rights of one should be so used as not to impair the rights of another, is a principle of morals which, from very remote ages, has been recognized as a maxim of the law. If an individual, 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.”

We recognize the doctrine of that case, as laid down by this court, as founded in the most solid reason, right, and morals, and a majority of the court have not the slightest disposition to impair its obligation, but by the light of such example and assurance, hope that the whole subject matter of corporations will, in the end, be reduced to the control of incontestable principle.

There is another reason : If a municipal corporation, for the good of all within its limits, see proper to cut down a street, it is nothing more than right that an injury there done to a single individual, should be shared by all.

Judgment reversed, and cause remanded.

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Dissenting Opinion

*Birchard, J.,

dissenting. I dissent from the above opinion. The extent to which this court has ever gone in sustaining an action against a corporation, falls far short of what was necessary to sustain this case. In my opinion, the court of common pleas gave the law to the jury correctly. So thought this court upon the circuit, and the judgment was affirmed. I should cheerfully retrace that decision, and indeed would desire to do so, if not entirely satisfied of its correctness. The case of Rhodes v. Cleveland, 10 Ohio, 159, established a new principle, before unknown to the profession in this and our sister states. It was one that justice seemed to demand; and for myself I can here say that as I understand it, and as it was understood by the learned judge who delivered the opinion in that case, I have no desire to shake its authority. It goes no further than to subject a corporation to an action, upon a state of facts which would have subjected a natural person. Apply that principle to this case, and there was no error. The rights of the public to the highway, for the legitimate purposes of travel, and improving the road, are as perfect and absolute as the rights of a natural person are to his private property in lands. This right extends to all above and all below the surface, and he may use his own as best pleases himself, doing no unnecessary injury to his neighbor. If he choose to erect buildings or fences, so as to throw a part of his neighbor’s garden adjoining him into the shade, no action can be sustained for the-injury. If he sees proper to dig up his own soil, or to grade down his own lot, he may do it, taking care not to undermino his neighbor’s structures, or to break the soil of his neighbor’s lot, and no action will lie, although it may make it necessary for that neighbor to accommodate himself to the same grade.

The town council of Akron kept themselves strictly within the powers conferred upon them. They touched not the plaintiff’s soil; did not undermine his houses, fences, or other structures; did nothing wantonly, maliciously, or negligently. :KEvery act was strictly legal, so that no consequences flow from it that would have made a natural person liable, had ho been the owner and performed the same acts. The injury, and the only injury to the plaintiff in such a case, must have been of the same nature as that which is sustained by the owner of a village lot, whose neighbor has graded down his own adjoining lot without disturbing him in any manner. The court of common pleas charged the jury, in substance, that for such a cause no action could be maintained. The books abundantly sustain them. In a legal sense there was no injury — nothing which the law recognizes as such. The amount in controversy in this case is of no moment, but the principle which this decision establishes is of groat importance. It is pregnant with mischievous consequences, which, when fully developed, will be too grievous to be borne. They will reach, if carried into practice, every portion of the state, and obstruct the improvement of all public roads, ■ways, and alleys in each town, village, and city. My hopes are still that the rule applied in this ease man bo limited to the office of reversing the judgment before us, that it may live and die with the cause which brought it into being; and if not, that it maybe hereafter understood and limited by my brethren as I would now limit it — giving a right of action against a corporation only upon a state of facts that .would subject a natural person, if committed by him instead of the corporation.