19 S.E. 264 | N.C. | 1894
Lead Opinion
(DEFENDANT'S APPEAL.) It will not be necessary to consider in their order the objections to evidence and exceptions thereto, as the case will be disposed of in the consideration of the errors alleged in the instructions of his Honor to the jury.
The defendant rested his defense on the merits upon two grounds: (1), because he was abating a nuisance; (2), because the action of the board of aldermen, approving his act, related back and justified the *390 conduct of defendant. His Honor held that neither position can be maintained by defendant on the evidence, and he directed the jury if they believed the evidence to answer the first issue "Yes."
We have examined the acts constituting the charter of Asheville in force at the time of the act complained of and the general law concerning cities and towns, and find that, by section 3803 of The Code, applicable to all towns and cities, unless other modes are expressly provided in the charter, the commissioners "shall provide for keeping in proper repair the streets and bridges in the town in the manner and to the extent they may deem best." By the charter of Asheville, chapter 111, Private Laws 1883, sec. 19, among the powers expressly given to (630) the board of aldermen are to "provide for repairing and cleansing the streets and sidewalks," also "to suppress and remove nuisances." And by sections 37 and 38 an elaborate system is provided for the condemnation of land for streets and the assessment of benefits and damages, "whenever in the opinion of the aldermen it is advisable to obtain land or the right of way in the city for the purpose of opening new streets or widening or straightening streets already established or for making of culverts or waterways for carrying water out of the streets." But we have been unable to find any special provision, however desirable it may be that some special provision should by law be made, for the grading of the streets, and the assessment of benefits and damages arising upon the change of such grades.
This city has, then, special power and the general powers incident to all towns and cities for keeping its streets in repair, which powers would, in our opinion, include authority to make such changes in the grading of its streets as the board of aldermen might deem necessary; and that the city was only liable for damages caused by such grading when the work was done in an unskillful manner. Meares v. Wilmington,
But the effect of a ratification by the city of an act done by (631) an unauthorized person under color of authority from the city, which act, if it had been done by the city itself, would have been rightful, would be to relieve such person from liability as a trespasser. A municipal corporation has, by its charter, granted to it certain *391 portions of the sovereignty of the State, for the purpose of assuring to the people the right of local self-government. It acts under delegated authority, and within the scope of its powers it represents the sovereignty itself.
And the fact that the ratification of defendant's act was done after action brought against him by the plaintiffs for the injury sustained, cannot affect the result of such ratification. "The rule of law is that he for whom a trespass is committed is no trespasser unless he agrees to the trespass; but if he afterwards agrees to it his subsequent assent has relation back, and is equivalent to a command, according to the well-established maxim, omnis ratihabitio retrotrahitur et mandato priorioequaparatur." Hall v. Pickersgill, 5 E. C. L., 83.
The city had the right to grade the street, and by its subsequent assent it has in effect commanded the act complained of; if it were a person who had no right to do the act and the same were done in its behalf it would be a joint trespasser with defendant, but having that right the defendant is relieved of liability if he assumed to do it for and on behalf of the city. The city has assumed any liability which may have accrued to defendant and now this liability would be only for injuries sustained by reason of unskillfulness in the work.
This doctrine of ratification will in some instances apply to torts as well as to contracts. One may under some circumstances adopt a wrong and become a wrongdoer by ratification, as where one acts for another,not assuming to act for himself, but for the other person, (632) without any precedent authority, and afterwards the act is ratified by the principal. Cooley, Torts, 127. "If an individual ratifies an act done on his behalf the nature of the act remains unchanged; it is still a mere trespass, and the party injured has the option to sue either; if the Crown ratifies the act, the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from liability the person who commits the trespass." Buronv. Denmar, 2 Exch., 188.
So an act which, if done by the individual, may be a trespass, but which if done by proper authority is lawful, may be ratified by such authority when it was done in its behalf. For instance: Defendants, creditors of an uncertificated bankrupt, seized his goods to hold for the assignee not yet appointed; this act was ratified by the assignees who had a right to seize them; and although this ratification was done after action brought by the bankrupt against the trespasser it was held that the defendants were not liable to plaintiff. Hall v. Pickersgill, supra. *392
It must be an act which would have been lawful if done by proper authority, for, where a State tax collector seizes property in satisfaction of taxes, refusing to accept in payment certain coupons, according to a statute of Virginia, he is liable for trespass because the act was void.Poindexter v. Greenhow,
The learned counsel for plaintiffs, contending that the city could not ratify the act of defendant, especially after suit brought, rely upon Pagev. Belvin,
The same distinction will be found in all other cases cited for this position, for in each of them the act or contract was not in its origin binding upon the corporation by reason of not having been made in the mode prescribed by the charter, and therefore not a subject of ratification. In Zottman v. San Franciso,
As to the question whether the defendant was liable for the removal of the wall and earth which had been erected at the opening of Market Street into the public square, his Honor held that upon the evidence defendant could not relieve himself from liability to plaintiffs upon the ground that he was abating a nuisance. As the acts of grading the street and of removing the wall may be separated, it is important to inquire whether this wall and the earth packed between it and plaintiffs' line, upon the street, was a nuisance, and could defendant have abated it? Without going back to a discussion of what constitutes a nuisance in general, we may say, as applicable to our present case, that any permanent obstruction of a street or road, a public highway, by which the public are impeded in their passage over said highway, is a nuisance, and that according to the evidence this wall and filling in, erected upon the street or public square, certainly in the absence of any express authority from the board of aldermen to do so — and this authority cannot be proven by testimony to the individual consent of one or more members of the board — was a public nuisance, because it obstructed a portion of the street or square. S. v. Long,
It was broadly stated in S. v. Dibble,
Error.
Cited: Hester v. Traction Co.,
(PLAINTIFFS' APPEAL)
Addendum
The conclusion we have reached upon defendant's appeal renders it unnecessary that we should consider any of plaintiffs' exceptions other than those directed to the charge of his Honor upon the measure of damages.
We are of the opinion that there is no error of which the plaintiffs can complain in the instructions given, and defendant's appeal did not show any exception to this part of the charge. As it appeared upon the trial that the removal of the wall and earth and the grading (640) of the street had been adopted by the city and consequently that the earth and wall could not be replaced, it would be difficult to compute any other damage resulting to plaintiffs than such inconvenience as may have arisen and existed between the time of the act complained of and the adoption thereof by the city. There was no testimony upon which the jury could have been instructed that they might give vindictive damages.
No error. *395