Imágenes de páginas
PDF
EPUB

of immunity applies. The sovereign is not subject in the exercise of any of its powers or the performance of its duties to the judgment of the courts which it creates or the principles of law applying to private persons which it establishes and enforces. All governmental agents partake of this freedom from scrutiny or liability unless a responsibility is directly assumed and imposed by statute.24 As usual, there are certain duties which are clearly governmental in their character and in respect to which no dispute can arise and these will be noted in the immediate sections.

§ 957. Character of duty continued.

Governmental duties within the above discussion are in general those which are exercised by the state or its delegated agents as a part of its sovereignty for the benefit of the whole community, because there is a universal obligation resting upon organized government, whatever its form, to protect all interests within its jurisdiction both personal and property and further, because the prevention of crime, the preservation of the public peace and health and the construction of general works of public improvement are beneficial acts in which the whole community is alike and equally interested.25 The discharge of this obligation is delegated or imposed in many cases by the state upon municipal cor

24 Howland V. Inhabitants of Maynard, 159 Mass. 434, 34 N. E. 515, 21 L. R. A. 500; Alexander v. City of Milwaukee, 16 Wis. 247. A municipal corporation is not answerable for consequential damages produced by work of public improvement made under lawful authority for the sole benefit of the public provided the work is done in a careful manner. See § 953, ante.

25 Hart v. City of Bridgeport, 13 Blatchf. 289, Fed. Cas. No. 6,149; Jones v. City of New Haven, 34 Conn. 1; Colwell v. City of Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. R. A. 218; Swan v. City of

Bridgeport, 70 Conn. 143, 39 Atl. 110. But a liability may be especially imposed by a city charter. City of New Orleans v. Kerr, 50 La. Ann. 413, 23 So. 384; Portland & R. R. Co. v. Inhabitants of Deering, 78 Me. 61; Mahoney v. City of Boston, 171 Mass. 427; Peaty v. City of New York, 33 Misc. 231, 67 N. Y. Supp. 276; Coley v. City of Statesville, 121 N. C. 301; Frederick v. City of Columbus, 58 Ohio St. 538; Conelly v. City of Nashville, 100 Tenn. 262; Bates v. City of Houston, 14 Tex. Civ. App. 287; Sawyer v. Corse, 17 Grat. (Va.) 230.

[graphic]

porations proper. The obligations and duties which rest upon municipal corporations proper, the result of their private, local or proprietary character, are those which they are authorized to execute for their own emolument and from which they derive special advantage by the increased comfort of their citizens or the well ordering and convenient regulation of particular classes of the private business of their inhabitants but they are not exercised in the discharge of any general and recognized duty of government for the common or universal benefit.26 Familiar examples of these duties or powers are the right to construct drains or sewers, introduce water and light,28 establish public parks and play grounds,20 erect public markets, 30 make local improve

27

28 Clark v. City of Washington, 12 Wheat. (U. S.) 40. Municipal corporations are liable for the acts and contracts of their agents in connection with the establishment of a lottery authorized by law. Hart v. City of Bridgeport, 13 Blatchf, 289, Fed. Cas. No. 6,149; Guthrie v. City of Philadelphia, 73 Fed. 688; Fink v. City of Des Moines, 115 Iowa, 641, 89 N. W. 28; Stewart v. City of New Orleans, 9 La. Ann. 461; Coughlan v. City of Cambridge, 166 Mass. 268, 44 N. E. 218; Sheldon v. Village of Kalamazoo, 24 Mich. 383; Weet v. Village of Brockport, 16 N. Y. 161, note; Tormey v. City of New York, 12 Hun (N. Y.) 542; McCombs v. Town Council of Akron, 15 Ohio, 474; Wagner v. City of Portland, 40 Or. 389, 60 Pac. 985, 67 Pac. 300; Aldrich v. Tripp, 11 R. I. 141; City of Petersburg v. Applegarth's Adm'r, 28 Grat (Va.) 321. See, also, note 51 Cent. L. Jr., 126, on Municipal Liability for Breach of Duties.

27 Norton v. City of New Bedford, 166 Mass. 48, 43 N. E. 1034; Ostrander v. City of Lansing, 111 Mich. 693, 70 N. W. 332. But see

Brunswick Gas Light Co. v. Brunswick Village Corp., 92 Me. 493, 43 Atl. 104. There is no liability on the part of a village for injury to gas pipes of a private company while it is constructing a public sewer in the village streets. See, also, §§ 958 and 973, post, and §§ 437 et seq., ante.

28 Pine v. City of New York, 103 Fed. 337. The seizure and permanent diversion of the waters of a stream by a city without compensation to the lower owners is a continuing wrong. Prince v. City of Quincy, 128 Ill. 443, 21 N. E. 768; Stock v. City of Boston, 149 Mass. 410, 21 N. E. 871; Westphal v. City of New York, 34 Misc. 684, 70 N. Y. Supp. 1021; Bodge v. City of Philadelphia, 167 Pa. 492, 31 Atl. 728; City of Ysleta v. Babbitt, 8 Tex. Civ. App. 432, 28 S. W. 702. See §§ 973 and 1002, post, and §§ 472 et seq., ante.

29 See § 973, post, and 436, ante. 30 City of Savannah v. Cullens, 38 Ga. 344; Barron v. City of Detroit, 94 Mich. 601, 54 N. W. 273, 19 L. R. A. 452; Weymouth v. City of New Orleans, 40 La. Ann. 344, 4 So. 218. See, also, §§ 420 et seq., ante.

31

32

ments, or maintain its public places. The liability, if one exists, is not, however, an absolute one but only arises when a work of improvement or an act authorized by law is performed in an improper or unskilled manner.38

§ 958. Municipal duty; construction of drains or sewers.

A familiar illustration of a municipal duty is the construction and maintenance of a system of drains or sewers and the principle commonly obtains that in respect to the performance of this duty, a liability may arise on the part of a municipal corporation. Such a system is usually constructed through the collection of local assessments and it results in the local and special advantage of those within its immediate vicinity. The action of public authorities relative to the construction of drains and sewers is a discretionary duty left for them to determine in their judgment and

31 City of Chicago v. Spoor, 91 Ill. App. 472; Bear v. City of Allentown, 148 Pa. 80, 23 Atl. 1062; City of Allentown v. Kramer, 73 Pa. 406; Brink v. Borough of Dunmore, 174 Pa. 395, 34 Atl. 598. When a city though acting within its powers commits a trespass in the making of an improvement, it is liable. See, also, §§ 422, et seq., ante. But see Fuller v. City of Grand Rapids, 105 Mich. 529, 63 N. W. 530. City not guilty of conversion of private property used by paving con

tractor.

32 McMahon v. City of Dubuque, 107 Iowa, 62, 77 N. W. 517; Mullen v. Village of Glens Falls, 11 App. Div. 275, 42 N. Y. Supp. 113. Liability resulting from use of steam roller. O'Donnell v. White, 23 R. I. 318, 50 Atl. 333; Barksdale v. City of Laurens, 58 S. C. 413, 36 S. E. 661. But see McMulkin v. City of Chicago, 92 Ill. App. 331. A city may rightfully use any ordi nary implement operated by steam for the purpose of constructing or

repairing its streets, such as a steam roller. Barney v. City of Lowell, 98 Mass. 570; Quinn v. City of Paterson, 27 N. J. Law (3 Dutch.) 35; Russell v. City of Tacoma, 8 Wash. 156, 35 Pac. 605.

33 City of Denver v. Rhodes, 9 Colo. 554, 13 Pac. 729; Fuller v. City of Atlanta, 66 Ga. 80; City of Bloomington v. Brokaw, 77 Ill. 194. A city is liable for damages from surface water caused by raising the grade of a street. City of Joliet v. Harwood, 86 II. 110; City of Chicago v. Norton Milling Co., 97 Ill. App. 651; McQueen v. City of Elkhart, 14 Ind. App. 671, 43 N. E. 460; Murphy v. City of Lowell, 128 Mass. 396; Hull v. Inhabitants of Westfield, 133 Mass. 433; Fuller v. City of Grand Rapids, 105 Mich. 529; Tegeler v. Kansas City, 95 Mo. App. 162, 68 S. W. 953; Kavanaugh v. City of Brooklyn, 38 Barb. (N. Y.) 232; O'Donnell v. White, 23 R. I. 318, 50 Atl. 333.

34

discretion resting upon the feasibility of the proposed action as dependent upon local necessities and financial ability. The determination, therefore, to establish sewers, drains or a system of them, being a discretionary power, any action negative or affirmative in its character which may result in an injury to persons or property can create no liability on the part of the municipal corporation. The power to establish a system being discretionary, the right to abolish or discontinue the maintenance of one already constructed is also discretionary in its character and no consequent liability can attach.36

959. Plan of work.

The determination to construct a system of drains or sewers is regarded as a discretionary act and the adoption of a location or a plan of work or a comprehensive scheme and plan for drainage, unless palpably bad, partakes of the same nature.37 Any injuries.

34 Byrne v. Town of Farmington, 64 Conn. 367, 30 Atl. 138; Darling v. City of Bangor, 68 Me. 108; White v. Yazoo City, 27 Miss. 357; Hart v. City of Baraboo, 101 Wis. 368, 77 N. W. 744. But see Damour v. Lyons City, 44 Iowa, 276. See, also, Bickerdike v. City of Chicago, 185 Ill. 280, 56 N. E. 1096.

35 City of Huntsville v. Ewing, 116 Ala. 576, 22 So. 984; Wilson v. City of Waterbury, 73 Conn. 416, 47 Atl. 687; City of Rome v. Cheney, 114 Ga. 194, 39 S. E. 933, 55 L. R. A. 221. A city is not liable for the death by drowning of a child nine years old in a properly constructed drain made for the purpose of carrying off surface water. Americus v. Eldridge, 64 Ga. 524; City of Chicago v. Rustin, 99 Ill. App. 47; Town of Monticello v. Fox, 3 Ind. App. 481, 28 N. E. 1025; Hoard v. City of Des Moines, 62 Iowa, 326; Morris v. City of Council Bluffs, 67 Iowa, 343; Knostman & Peterson Furniture Co. v. City

City of

of Davenport, 99 Iowa, 589; Bulger v. Inhabitants of Eden, 82 Me. 352, 19 Atl. 829, 9 L. R. A. 205; Flagg v. City of Worcester, 79 Mass. (13 Gray) 601; Woods v. Kansas City, 58 Mo. App. 272; Wilson V. City of New York, 1 Denio (N. Y.) 595; Anchor Brewing Co. v. Village of Dobbs Ferry, 84 Hun, 274, 32 N. Y. Supp. 371; Mills v. City of Brooklyn, 32 N. Y. 489; Barton v. City of Syracuse, 37 Barb. (N. Y.) 292; Lynch v. City of New York, 76 N. Y. 60; Carr v. Northern Liberties, 35 Pa. 324; City of Chattanooga v. Reid, 103 Tenn. 616, 53 S. W. 937; State v. McNay, 90 Wis. 104, 62 N. W. 917.

36 Simpson v. Keokuk, 34 Iowa, 568; City of Atchison v. Challis, 9 Kan. 603. But see O'Brien v. City of Worcester, 172 Mass. 348, 52 N. E. 385; City of Dallas v. Cooper (Tex. Civ. App.) 34 S. W. 321; Schroeder v. City of Baraboo, 93 Wis. 95, 67 N. W. 27.

37 McCoy v. Washington County,

38

which may result, therefore, from defects in a reasonable plan or scheme as a whole 39 or in part, can create no liability. The operation of this rule, however, will not prevent a recovery for injuries suffered by a failure to provide a suitable outlet for such a system, or for the construction of drains or sewers lacking in capacity to carry off the natural drainage or sewage from the

40

3 Wall. Jr. 381, Fed. Cas. No. 8,731; City of Troy v. Coleman, 58 Ala. 570; Wicks v. Town of DeWitt, 54 Iowa, 130; Atwood v. City of Bangor, 83 Me. 582, 22 Atl. 466; Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550, affirming 44 App. Div. 630, 60 N. Y. Supp. 1150; Parks v. City Council of Greenville, 44 S. C. 168, 21 S. E. 540; Smith v. Gould, 61 Wis. 31. See, also, Child v. City of Boston, 86 Mass. (4 Allen) 41.

38 City of Denver v. Capelli, 4 Colo. 25; Hession v. City of Wilmington (Del.) 27 Atl. 830, Id., 1 Mara. (Del.) 122, 40 Atl. 749; Bickerdike v. City of Chicago, 185 Ill. 280; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686. In the erection of a plant, municipal authorities must exercise reasonable care in securing the services of persons skilled in such matters. Van Pelt v. City of Davenport, 42 Iowa, 308; King v. Kansas City, 58 Kansas 334, 49 Pac. 88; Hitchins v. Town of Frostburg, 68 Md. 100, 11 Atl. 826; Buckley v. City of New Bedford, 155 Mass. 64; Foster v. City of St. Louis, 4 Mo. App. 564; Graves v. City of Olean, 64 App. Div. 598, 72 N. Y. Supp. 799; Garratt V. Trustees of Canandaigua, 135 N. Y. 436, 32 N. E. 142. Where the construction of a system of drainage and sewer is left to the discretion and judgment of public authorities, a village is not

liable for the results of a faulty plan adopted in good faith.

Fair v. City of Philadelphia, 88 Pa. 309; Bear v. City of Allentown, 148 Pa. 80, 23 Atl. 1062; Willett v. Village of St. Albans, 69 Vt. 330, 38 Atl. 72. But see Williams V. Raleigh Tp., 21 Can. Sup. Ct. R. 103; City of New Albany v. Ray, 3 Ind. App. 321, 29 N. E. 611; City of Louisville v. Norris, 23 Ky. L. R. 1195, 64 S. W. 958. Where a liability followed from the adoption of a plan which was palpably bad. Young v. Kansas City, 27 Mo. App. 101. The determination of the dimension of a culvert is of a ministerial and not of a judicial character.

39 Wilson v. City of Waterbury, 73 Conn. 416, 47 Atl. 687. But see Lehn v. City & County of San Francisco, 66 Cal. 76.

40 City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; City of Bloomington v. Murnin, 36 Ill. App. 647; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686; Flanders v. City of Franklin, 70 N. H. 168, 47 Atl. 88; Magee v. City of Brooklyn, 18 App. Div. 22, 45 N. Y. Supp. 473; Costich v. City of Rochester, 68 App. Div. 623, 73 N. Y. Supp. 835; Hardy v. City of Brooklyn, 90 N. Y. 435; Donovan v. Royal, 26 Tex. Civ. App. `248, 63 S. W. 1054. See, also, authorities cited note § 961

« AnteriorContinuar »