45 Conn. 170 | Conn. | 1877
In 1864 the legislature gave certain additional powers and privileges to the then existing borough of Greenwich by virtue of an amendment of its charter, which .was accepted by the corporation and was in the following words:
“ The warden and burgesses are hereby authorized to direct the proprietors of lands fronting any street, highway, public walk or ground, to set out and straighten- his, her or their fences in such manner as said warden and burgesses may direct; and said warden and burgesses are hereby empowered, from time to time, to order the removal of all nuisances within the limits of the said borough, and all incumbrances, encroachments or obstructions erected, placed, laid, left, deposited or continued upon any highway, walk, or public ground in said borough; and the person or persons committing or continuing, erecting, placing, laying, leaving or depositing any such nuisances, encroachments or obstructions, -shall
In April, 1871, the warden, acting in his official capacity and pursuant to votes theretofore passed by the court of wardens and burgesses under the grant of power in said amendment relative to the removal of encroachments upon the highways within the borough, took down the fence standing along the front line of a lot belonging to the plaintiff; thereupon he instituted this action of trespass against the borough; and the finding is that the fence, not being an encroachment, was unlawfully removed. The court rendered judgment for the defendants; the plaintiff filed a motion in error.
The governmental duty to keep highways within its limits in good and sufficient repair for public use is not placed upon the borough, but upon the town of Greenwich, which includes the former; but, for the purpose of enabling the borough at its pleasure to improve the appearance of the streets, and thus enhance the value of property within its limits, it asked for and received power to remove an encroaching fence, irrespective of the question whether or not in fact it constituted an obstruction to public travel. The corporation had legislar ive .permission to do such an act for its own advantage; it was under no legislative command to do it for the public safety.
The court of warden and burgesses constitutes the borough legislature; to this court the accepted charter granted power to take action for the corporation upon the general subject of
In the case before us, the warden and burgesses believed that the fence stood upon the highway and that they had the right to remove it; apparently the warden came to the execution of their mandate clothed with official authority and power, not intending any injury. In all like cases it is best for those concerned that the individual should respect that authority and submit to the exercise of it, having knowledge that if he can prove that he has suffered any wrong he can look to a responsible corporation rather than to an irresponsible individual for damages.
In support of the conclusion reached by us we quote some expressions of judicial opinion in this and other jurisdictions, remarking that some of them reach beyond the necessities of the case before us.
In Danbury & Norwalk Railroad Co. v. Town of Norwalk, 37 Conn., 109, the respondent town proposed so to construct a sewer, necessary for the drainage of a highway, as to dis-. charge water upon a building belonging to the petitioner.
In Thayer v. City of Boston, 19 Pick., 511, the officers of the defendant city had obstructed the plaintiff’s access to the street by the erection therein of stalls along the front of his premises; for this he brought his action on the case against the city; the latter pressed upon the court the argument that, if the officers of the corporation within their respective spheres act lawfully and within the scope of their authority, their acts must be deemed-justifiable, and nobody is liable for damages, and if any individual sustains loss by the exercise of such lawful authority it is damnum absque injurid. But if they do not act within the scope of their authority, they act in the manner which the corporation have not authorized, and in tiiat case the officers are personally responsible for such unlawful and unauthorized acts. Shaw, C. J., said: “But the court are of opinion that this argument, if pressed to all its consequences and made the foundation of an inflexible
In Hildreth v. City of Lowell, 11 Gray, 349, the officers of the city entered the plaintiff’s close for the purpose of constructing a sewer, without giving to him such previous notice as the city ordinances required; for this act he sued the city. The court said: “There is no doubt that an action of tort may be maintained against a town or city to recover damages for a trespass committed by any of its agents or officers acting under its authority or in pursuance of directions given them, upon the property or'estate of another party;” and cites Thayer v. City of Boston approvingly.
In Hawks v. Charlemont, 107 Mass., 414, the selectmen entered the close of the plaintiff and took stone for repairing a bridge, and thereby exposed the land to be washed and damaged by a river. The court said: “ It is manifest that the acts of the selectmen were tortious, and if they wére done by the authority of the town an action of tort will lie against the town. Where officers of a town acting as its agents do a tortious act with an honest view to obtain for the public some lawful benefit or advantage, reason and justice require’ that the town in its corporate capacity should be liable to make good the damage sustained by an individual in conser quence of the acts thus done.”
In the case of Lee v. Village of Sandy Hill, 40 N. York, 442, the charter of the village provided that its officers should be five trustees, and that such trustees should be commissioners of highways of the village, and have the same powers and be subject to the same duties as to the roads of the village as commissioners of highways in towns. Under a written resolution and order of such trustees the overseer of highways wrongfully entered upon the land of the plaintiff and moved back a fence erected by him in front of his lot, the trustees in making the order acting in good faith, erroneously supposing the plaintiff’s fence was an encroachment.upon the street, and that they were proceeding in pursuance of the authority
In Buffalo & Hamburgh Turnpike Co. v. City of Buffalo, 58 N. York, 639, the city in making certain changes in one of its highways injured a bridge belonging to the plaintiff; the court held that a municipal corporation is liable for the tortious acts of its agent, where it appears that the agent was expressly authorized to do the acts, or that they were done in good faith, in pursuance of a general authority to act for the corporation on the subject to which they relate.
In Sheldon v. Kalamazoo, 24 Mich., 383, the president and trustees of the village directed the committee on streets to notify the plaintiff that his front fence encroached upon the highway and that he must remove it; this he refused to do, and the marshal removed it upon the order of the committee. The court below refused to hear evidence that the plaintiff’s fence stood upon the line, for the reason that the president and trustees acted in the capacity of public officers and not municipal agents, and that the corporation is not liable for their acts in the premises. In granting a new trial the Supreme Court said: “The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the prejudice of private persons. In this respect public corporations are as distinctly legal persons as private corporations.”
In Crossett v. City of Janesville, 28 Wisconsin, 421, the city entered upon-the plaintiff’s lot and began to construct a highway over it without compliance with the terms of its charter, which provided that no street should be graded with
In Soulard v. City of St. Louis, 36 Missouri, 546, the corporation opened a street through the land of the plaintiff without first having the land condemned and damages assessed in the manner provided by its charter. The court said: “Accordingly it has been held that a municipal corporation will be liable where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the city government invested with jurisdiction to act for .the corporation upon the subject to which the particular act relates, or where after the act has been done it has been ratified by the corporation.”
In Allen v. City of Decatur, 23 Illinois, 332, the city council by resolution directed the city supervisor to open a street across the plaintiff’s lot without authority of law. The court said: “We shall in this opinion devote our attention to the principal question which has been argued in the case, which is, whether a municipal corporation can be sued in an action of trespass for acts done in obedience to an order of the corporation. The law is now so well settled that it is nowhere controverted that such coi’porations may be sued in case for tortious acts done under the instructions of such corporations.”
In Woodcock v. City of Calais, 66 Maine, 234, the city government of Calais passed an order “that the street commissioner be directed to cause all fences now on the public streets to be removed.” The street commissioner 'employed a surveyor to run a line between the plaintiff’s land and the street. The line, as run, proved to be outside of the street limits and upon the plaintiff’s land. The commissioner, believing the line to be correctly ascertained, moved back the plaintiff’s fence in accordance therewith, removed from the plaintiff’s land earth and rocks, and built a side-walk thereon. The court, in holding that the principle of respondeat superior applied, and that the city was liable to the plaintiff in trespass for the damages, said that the fact that the street commis
In Cumberland & Oxford Canal Co. v. City of Portland, 62 Maine, 504, which was an action on the case for obstructing the plaintiff’s canal, the court said that “ the declaration avers, and therefore the demurrer admits, that the city of Portland did the acts complained of. Those acts are primd fade acts of trespass. No, justification or excuse being shown, the plaintiffs are entitled to judgment.”
In Inman v. Tripp, Treasurer of the City of Providence, 11 R. Island, 520, an action upon the case for discharging surface water upon the land of the plaintiff, the court, in holding that “ the doctrine that a municipality cannot be held liable for the consequences of an act which is legally authorized or is required to perform, will not justify an invasion of private property, even if the invasion is only consequential,” said: — ■ “ The plaintiff’s property has been invaded, and the question is whether he is entitled to any remedy against the city for the invasion. There are cases which hold or seem to hold that no action lies against the city even for such an injury. The ground of these decisions is that a city cannot be answerable at law for the consequences of an act which it is legally authorized or required to perform. But we think this doctrine, the abstract truth of which cannot well be gainsaid, is misapplied when it is held to sanction an invasion of private property, even though the invasion is only consequential.”
In Ashley v. Port Huron, 35 Mich., 296, Cooley, C. J., says, that “ it is very manifest from this reference to authori
In Rowe v. City of Portsmouth, 56 N. Hamp., 291, the court said that the question whether municipal corporations in this country, and corporations in England having some of the powers and charged with some of the duties usually exercised by municipal corporations here, are liable for negligence, carelessness or misfeasance, both in the performance of their legal duties and the doing of voluntary acts within the scope of their authority, has been much considered by the courts on both sides of the Atlantic; and the decided weight of modern' authority is, that in this respect they stand like private individuals or corporations.”
In City of Chicago v. McGraw, 75 Illinois, 566, the court says: “That an action of trespass lies, in a proper case, against a municipal corporation, is not an open question in this court. * * But to render it liable in any case for torts committed by persons claiming to act for it, or by its authority, it must appear that they were expressly authorized to do the acts by the municipal government, or that they were done bond fide in pursuance of a general authority to act for the municipality on the subject to Avhich they relate; or that, in either case, the act was adopted and ratified by the corporation. Thayer v. City of Boston, 19 Met., 571.”
There is error in the judgment complained of.
The Superior Court should render judgment for the plaintiff to recover of the defendants the sum of one hundred dollars damages and his costs.