§ 800. Delegation of power to control and regulate the use of public property.

801. Power as delegated to municipal corporations.

802. Delegation of power to public and quasi public corporations.
803. The extent of powers granted to delegated agencies.
804. Extent of power granted; implied powers.

805.

806.

807.

808.

809.

810.

811.

Same subject; fundamental legislative limitations.
Extent of power limited by character of property.
The power to open, repair and improve highways.
Alteration of streets or highways.

Difference in urban and suburban uses.

Change of grade in a highway or street.

Statutory damages for change of grade.

812. Definition of grade.

813. Damages recoverable.

814. Unlawful change of grade.

815. Diversion from a public or specific use

816. Control of property acquired by gift.

817. Rights of abutting owners.

818. Legislative control as modified by the abutter's rights.

819. Abutter's special rights; lateral support.

820. Same subject continued; abutter's right to light, air and

access.

821. Abutter's rights in common with the public.

822. Right of abutting owners to use of property.

823. Abutter's rights as dependent upon the passing of a fee or an

easement.

824. Use of highway by abutter.

825. Use of materials by abutter or a public corporation.

826. Abutter's rights when highway is devoted to new or unusual

A private person, natural or artifical, is limited in the control and use of its property by the nature of the title or, stated differently, the manner in which it is acquired. The same principles of law apply to the control and use of property by a public corporation and a further limitation is found based upon the purpose for which property is secured. The extent and the manner

of the control and use of property held by a public corporation is therefore dependent upon the character of its title, the manner of acquirement and the purpose for which it is acquired.500 It necessarily follows, therefore, and because of the nature of a public corporation, that, as compared with private persons or corporations, its management and disposition of property is more restricted and its capacity comparatively limited. This principle obtains because of the fundamental differences found existing between a private person or corporation and a public corporation, in the exercise of their powers or legal capacities, based on the purpose for which created and the manner in which revenues are secured. A public corporation is created solely as a governmental necessity and the basis of a legal acquirement of property is its use for a governmental or public purpose and control and that use is radically limited by this consideration.507 But within the operation of these rules, the property of a public corporation may be protected and controlled by it and no private person has the power to interfere with it or destroy or impair its usefulness for the purpose for which originally acquired and held.508 The power

506 Gooderhan v. City of Toronto, 25 Can. Sup. Ct. 246; Spaulding v. Wesson, 115 Cal. 441, 47 Pac. 249. A highway must be a public one in order that the municipality may have jurisdiction to improve it.

Town of Oldtown v. Dooley, 81 Ill. 255. A spring in a public road is not a part of the highway and its use is, therefore, not an incident to the proper use of the same. State v. Judge of Civil Dist. Ct., 51 La. Ann. 168, 26 So. 374; Dodd v. consolidated Traction Co., 57 N. J. Law, 482; Simon v. Northup, 27 Or. 487, 30 L. R. A. 171.

507 Smith v. City of Leavenworth, 15 Kan. 81.

508 Hancock v. Lousiville & N. R. Co., 145 U. S. 409. Where a public corporation is entitled to vote stock in a railroad company secured through the granting of aid. Pittsburgh, C., C. & St. L. R. Co. v. Abb. Corp. Vol. II — 59.

Iddings, 28 Ind. App. 504, 62 N. E. 112; Trustees of Augusta v. Perkins, 42 (3 B. Mon.) 437. Public authorities may maintain an action of ejectment to recover possession of streets for the use of the public.

Walker v. Trustees of Columbus, 43 Ky. (4 B. Mon.) 259; Inhabitants of Cumberland County v. Central Wharf Steam Tow-Boat Co.,. 90 Me. 95, 37 Atl. 867; Inhabitants of First Parish in Brunswick v. Dunning, 7 Mass. 445; Ward v. Detroit, M. & M. R. Co., 62 Mich. 46, 28 N. W. 775, 785; State v. Goetz, 24 Minn. 114; City of Fergus Falls v. Boen, 78 Minn. 186, 80 N. W. 961. Public sewers are the property of the city and may be controlled and regulated by them without interference from private persons.

Howard County v. Chicago & A. R. Co. 130 Mo. 652, 32 S. W. 651.

of control and regulation is vested in the public authorities only as representatives of the public and their action is warranted only for the vindication of a public right or the protection and regulation of the public use.509 As a legal principle, the inherent differences between a public corporation and a private person or corporation cannot be changed by legislation and the legal right in this respect of a public corporation to acquire, dispose of or use its property, cannot be increased or diminished by legislative action. Legislative attempts to vest a public corporation with the capacities and powers of a private person or corporation are necessarily futile as a legal proposition. The fundamental character of a governmental agent cannot be changed through mere legislative desire that it should be changed as an economical or party convenience.

$796. Investment of funds.

Many public corporations through a wise administration of their finances accumulate a surplus for the use of particular departments. The investment of these moneys is usually made a matter of statutory provision; the character of the investment is designated 510 and particular officials named who are charged with the duty in accordance with the plain provisions of the law.511 These statutory directions are considered mandatory and public funds must be invested in the manner and at the time designated.512 A failure in this respect will unquestionably create a personal liability on the part of the public official 518 violating or ignoring the law.

A company having a prescriptive title to the ownership of a bridge may sue for an injury thereto. Cue v. Breeland, 78 Miss. 864, 29 So. 850; Glasby v. Morris, 18 N. J. Eq. (3 C. E. Green) 72; Jersey City v. Central R. Co., 40 N. J. Eq. (13 Stew.) 417; People v. Works, 7 Wend. (N. Y.) 486; Town of Ft. Covington v. United States & C. R. Co., 8 App. Div. 223, 40 N. Y. Supp. 313; Id., 156 N. Y. 702, 51 N. E. 1094. A town has such a property interest in a highway bridge as will

sustain an action for its damage or destruction.

509 Methodist Episcopal Church v. City of Hoboken, 33 N. J. Law, 13. 510 See §§ 414 and 483, ante. 511 State v. Bartley, 40 Neb. 298, 58 N. W. 966; Boydston v. Rockwall County, 86 Tex. 234, 24 S. W. 272. 512 Village of Glenville v. Englehart, 19 Ohio Circ. R. 285. It is not permissible for a village treasurer to receive as his own public interest on public moneys. See. also, §§ 414 and 483 ante.

513 See §§ 414 and 483, ante.

The greater number of questions relating to the use and control of public property arise in connection with the public highways. This is true both because of the fact that the holdings of these properties are relatively large and that private persons, both natural and artificial, are interested to a greater extent in their use. The control of the public highways by a public corporation is, to repeat a principle stated in a preceding section, to a large extent, limited by the manner in which, and the purposes for which, they are acquired.514 A public corporation can acquire a public highway irrespective of the manner of its acquisition only because of the public necessity arising for the existence of a means of passing and repassing by the residents of the community." The control, therefore, of a public highway, is limited by the purposes for which it can be acquired and only such control and use is legally possible as will come within the bearing of this purpose.516 Where the land of an individual has been legally acquired for a highway, the public corporation controlling it has the right to appropriate the property so taken to all legitimate uses and servitudes that custom will permit and the public good, as thus measured, requires.517 The lawful exercise of these powers does not create any liability.518 The authority to make and establish

514 Town of Rice v. Chicago B. & N. R. Co., 30 Ill. App. 481; Grove v. City of Ft. Wayne, 45 Ind. 429. 515 Smith v. City of Leavenworth, 15 Kan. 81; People v. Kerr, 37 Barb. (N. Y.) 357; City of New York V. Kerr, 38 Barb. (N. Y.) 369. See §§ 422 et seq., ante.

516 Chicago v. McGinn, 51 Ill. 266; City of Chicago v. Collins, 175 Ill. 445, 51 N. E. 907, 49 L. R. A. 408. The use of streets is a right, not a privilege or an occupation; there is therefore no implied power to authorize the imposition of a license fee for the use of streets by owners of private conveyances. Dubach v. Hannibal & St. J. R. Co. 89 Mo. 483, 1 S. W. 86.

517 City of Dubuque v. Maloney, 9 Iowa, 450; Com. v. Worcester, 20

515

Mass. (3 Pick.) 462; Hatch v. Hawkes, 126 Mass. 177. Under Mass. St. 1869, c. 237, § 1, authorizing the acquisition of “gravel and clay pits," and the taking therefrom of the earth and gravel necessary to be used in the construction, repair, or improvement of streets and highways, any material suitable for the purpose mentioned capable of being dug out of the ground, acquired and removed by ordinary excavation, can be used. Plant v. Long Island R. Co., 10 Barb. (N. Y.) 26; Washington v. City of Nashville, 31 Tenn. (1 Swan) 177.

518 City of Montgomery v. Townsend, 80 Ala. 489, 4 So. 780; Simmons v. Camden, 26 Ark. 276; De Baker v. Southern Cal. R. Co. 106 Cal. 257, 39 Pac. 610; Durand v.

ordinances and regulations concerning sidewalks and streets. granted to a municipal corporation includes the power of determining the respective widths of the street and the sidewalk and how the space appropriated both shall be apportioned between the two.519

In a large sense, the power to control public property is a discretionary one assuming that the control properly comes within the principles already laid down. The differences between imperative and discretionary powers have already been explained.520 Where the legal capacity is given to a public corporation in this regard, it is discretionary with local officials representing it to exercise or refrain from exercising the power and their action is not subject to criticism or judicial review. 521 The doctrine applies to the acquiring and opening,522 including grading and regrading,523 of streets with their subsequent improvement and