41 Ill. 319 | Ill. | 1866
delivered the opinion of the Court:
This was an action on the case, brought in the Stephenson Circuit Court by William P. Emmert, against the town of Harlem and the commissioners of highways of that town, to recover damages against them for so building a bridge across the Pecatonica river, a navigable stream in that town, as to prevent easy and safe navigation thereof.
There was a trial by jury on the plea of not guilty, and a verdict for the plaintiff and damages assessed at fifty dollars. A motion for a new trial was overruled and exception taken,- and the cause brought here by appeal.
The points made by appellants are, that the town of Harlem is a quasi public corporation, against which no action could be maintained, if sued alone, for the act complained of, and therefore there is a misjoinder in suing the town together with the commissioners of highways; that the commissioners of highways are officers independent of the town — a species of town corporation themselves, over whom the town exercises no control, and is not, therefore, responsible for their acts. The evidence is not sufficient to charge the defendants.
As to the first objection, advantage should have been taken of the misjoinder, if there be one, by plea in abatement. Failing to do this, the verdict cures the defect by force of the statute of amendments and jeofails. The second objection is of the same nature, and it is now too late to make it.
The cases to which appellants refer are not cases of tort, where the charge was for performing a duty so negligently and unskillfully, that damage was occasioned thereby to the plaintiff. Now, if it was the duty of the town of Harlem to build this bridge, and that it was is apparent from the fourteenth section of article seventeen of the township organization law (Haines’ Comp. 71), the town must be responsible, if they make such a structure as will obstruct the free navigation of the river. The proof is, this structure was of that character. The town had the means in their control to make a sufficient bridge, by levying a sufficient tax for that purpose. The whole subject was under their control, and they ought to be responsible for the manner in which they have dealt with it.
That an action for a tort will lie against'a corporation, is fully settled by this court in the case of the St. Louis, Alton and Chicago R. R. Co. v. Dally, 19 Ill. 353.
The judgment is affirmed.
Judgment affirmed.