Meares v. Com'rs of Wilmington. which is the result of a want of ordinary skill and caution; although no action will lie, when the work is properly done; and the individual must submit to the damage, unless his case is specially provided for. It is apprehended, that there was error in not adverting to this distinction in the decision of some of the cases which were relied upon in the argument, and to which attention will be called in the course of this opinion; for which reason it has been dwelt upon somewhat at length. The jury has found, that the defendants did not use ordinary skill and caution in doing the work, and, as the plaintiff has been compelled to erect the walls, which proper skill and caution made it the duty of the defendants to have erected, in order to protect the lot from the effect of their act, it seems clear that she is entitled to recover. Suppose the case of two individuals: if one digs a ditch or cellar upon his own land, so as to cause the land of another to cave in, or walls of houses to fall, he violates the maxim, "one must use his own so as not to do damage to another," and is as clearly liable to an action, as one who erects a dam upon his own land and thereby ponds the water back upon that of another. The defendants insist, that, if the plaintiff had a cause of action, it is against them as individuals, and not in their corporate capacity, for, as they contend, a corporation cannot be sued in "tort." It is true, that it was formerly so held, and the reason given in the books is, that the usual process in an action of tort, to-wit, the capias ad respondendum, could not be served upon a corporation. The law, however, has been settled to the contrary, and the idea, that corporations are less accessible, and less responsible to actions than individuals, (which, by the bye. was one reason why corporations have always been looked upon by the public with so much jealousy and so little favor,) has yielded to common sense, and has been held, ever since the case of Yar Meares v. Com'rs of Wilmington. borough v. The Bank of England, 10 East. 6, when the matter underwent a full discription, and all the objections to the action were satisfactorily disposed of, that corporations were as liable as individuals to be sued in contract or in tort, or to be indicted. In the United States, the liability of corporations to actions of tort is well settled; indeed the charters of all corporations in this State, provide for the manner and name in which they shall sue and be sued, and no distinction is made between actions in contract and in tort. We think the plaintiff had her election to sue the corporation, who did the work, or to sue the defendants as a corporation, in which capacity they procured the work to be done, and are liable for the damage done by their agent, under the rule respondeat superior. A superior is not liable for the wilful act of his agent, but is liable for the damage resulting from a want of skill and due caution in doing the work. If the work be done according to the directions of the superior, and the agent is sued and pays damage, he has his redress against the superior; if the work is done contrary to the directions of the superior, and the superior is sued and pays damage, he has his redress against the agent. It is not necessary to decide whether the action could have been maintained against the defendants as individuals. Certainly it is better for the defendants to be sued as a corporation; for the question, how far they have a right to pay the damage out of the funds of the corpora tion, will be presented in a more favorable point of view, than if they had been sued as individuals. The defendants further insist, that, admitting that the plaintiff could maintain an action for the damage supposed, against a private corporation, as a rail road or canal company, yet no action will lie against them, they being a municipal or public corporation, for an exercise Meares vs. Com'rs of Wilmington. of the power vested in them by the sovereign authority, for the convenience of the public; and contend for this distinction, because, in the former case, the act is done for the benefit of the private corporation, to enable it to make money for the individuals composing the corporation; while in the latter the act is done for the benefit of the public at large. This distinction is taken in several cases cited in the argument for the defendants, and appears at the first suggestion to be plausible, but will not bear examination, and is more fanciful than real. The inducement on the part of the sovereign to grant the power, is, in both cases the benefit which the public will derive. The inducement on the part of the grantees, to solicit and accept the grant of the power, is, in both cases, the benefit which the grantees will derive. When the sovereign grants power to a private corporation, to construct a rail road, the grant is made for the public benefit, and is accepted because of the benefit which the corporation expects to derive by making money. So when the sovereign grants power to a municipal corporation to grade the streets, the grant is made for the public benefit, and is accepted because of the benefit which the corporation expects to derive, not by making money directly, but by making it more convenient for the individuals composing the corporation or town, to pass and repass in the transaction of business, and to benefit them by holding out greater inducements for others to frequent the town and thereby add to its business. The only distinction then, is, that in the one case money is received directly; in the other, indrectly; but in both ca. ses the individuals, composing, the stockholders, and the citizens of the town, derive special benefit from the work, which is not shared in by the citizens of the State, and, for this reason, the corporation, in both cases, is at the expense of making the work, and this is the surest test, by Meares v. Com'rs of Wilmington. which to find out for whose special benefit the work is. done. The proposition contended for, on the part of the defendants, is, that a public or municipal corporation is not liable to an action, for doing a work, which the law authorises to be done, and that individuals, sustaining loss thereby, have no redress, unless the law provides for compensation. This proposition is admitted, with the qualification, provided the work is done in a proper manner, and the only question is. is the proposition to be thus qualified? It has been already suggested, as a reason for requiring the qualification, that compensation can be provided for loss, necessarily resulting from the work, as taking land for the location of a road or other loss which will result, if the work be done in the most proper and skilful manner, whereas compensation cannot be provided for loss resulting from a want of skill and caution, for a want of skill and caution cannot be anticipated, at all events, the degree in which it will be wanting, cannot be known; it was also suggested, as a reason for requiring the qualification, that the distinction attempted to be drawn between a private and a public corporation, by which the one may be made liable in such case and the other not, was not tenable. It is now added, and seems to be conclusive in favor of the qualification, that the grant to do the work necessarily implies a condition, that the work is to be done in a skilful and proper manner, so that if the work be not done with ordinary skill and caution, the corporation has not acted in pursuance of the power vested in it; its act is not lawful, but is wrongful, and the damage sustained by an individual is “damnum et injuria," for which an action will lie. By way of illustration, power is given to a corporation to grade a street, by making an embankment across a valley, through which a small branch runs; is it not implied that the work is to be done in a skilful and proper manner by making Meares v. Com'rs of Wilmington. a culvert, through which the branch can discharge itself? or is the power unconditional, to make the embankment in any way that the corporation may see proper, to fill up the bed of the branch, make no culvert, and leave the water to pond back upon the lots above, unless the owners choose to be at the expense of making a culvert, even if it be lawful for them to do so, by interfering with a work which the sovereign has made it lawful for a municipal corporation to erect? The bare statement of such a case is a sufficient argument for requiring the qualification, and yet it is, in effect, the case we have under consideration, and we would without hesitation, decide in favor of the qualification upon the reason of the thing, unless the authorities have settled the law to the contrary too clearly to allow of such a decision. The authority, mainly relied on as being directly in point, is a decision in the State of New York. Wilson v. the Mayor, &c., of the City of New York, 1 Denio, 595. It is admitted that this case, if correctly decided, is in point, but with proper respect we conceive that the decision was erroneous, and that it is not supported by the case of the Governor, &c., of Cast Plate Manufacturers v. Meredith, 4 Term Rep. 796, upon which the Court base their opinion. The error, it seems to us, is in holding that the power to do an act is unconditional; whereas we think there is always a condition implied, that the work shall be done properly. The case was: the plaintiff owned a lot at the intersection of 40th street and the 7th avenue; the defendants having power to raise and grade the street and avenue, raised them eighteen inches, without making any drain or sewer, whereby the water from the street and avenue, and the adjacent lots, flowed upon the plaintiff's lot and there remained in a pond, and could not flow off, because of the obstruction presented by the street and avenue so raised, and for the want of a |