Hunt v. City of Boonville

CourtUnited States State Supreme Court of Missouri
Citation65 Mo. 620
PartiesHUNT v. THE CITY OF BOONVILLE, APPELLANT.
Decision Date31 October 1877

Appeal from Cooper Circuit Court.--HON. GEO. W. MILLER, Judge.

John Cosgrove for appellant.

It will be seen by an examination of the charter that the city has no authority to do the act complained of by respondent. The trespass alleged to have been committed is ultra vires, and the city is not liable. A corporation organized and created for municipal government solely differs from a quasi private corporation created and organized for profit. Dillon Munic. Corp., 2d Ed., §§ 9, 10. The defendant is, by its charter, not allowed by its agents or servants to enter upon the lands of persons, unless it is for some one of the purposes enumerated in the charter. The charter nowhere, either in terms or by implication, makes the defendant liable for the damages caused by the acts of its servants, officers or agents, acting outside of the scope of the chartered powers conferred by the Legislature upon appellant. The petition in this case is the same as if the suit was brought against an individual for trespass wantonly and willfully committed. There is no allegation that the act was done in virtue of an ordinance passed by the mayor and councilmen. Dillon Munic. Corp., §§ 381, 749, 766, 767, 768, 789; St. Louis v. Gurno, 12 Mo. 414; Soulard v. St. Louis, 36 Mo. 551. It is insisted that there was no authority of law for trebling the damages in this case, for the reason that this suit could not be maintained.

McMillan Bros. for respondent.

1. The appellant is civilly responsible for damages occasioned by an act, as a trespass or tort, done at its command by its agents or servants, in relation to matters within the scope of the purpose for which it was incorporated. Angel & Ames Corp., Sec. 311; Watson v. Bennett, 12 Barb. 196; Wallace v. Mayor, 9 Abb. Pr. 40.

2. The appellant in repairing its streets was engaged in a matter within the scope of its corporate powers. (See Session Acts 1870, page 254, Sec. 9.) And as a municipal corporation would be liable when acts are done by its authority, which would warrant a like action against an individual. Thayer v. Boston, 19 Pick. 511; Underwood v. Newport Lyceum, 5 B. Monroe 130; Boom v. Utica, 2 Barb. 104.

3. The statute of trespass includes within its provisions bodies corporate as well as individuals. Wag. Stat., p. 1345; p. 887, Sec. 4; Lindell v. Han. & St. Jo. R. R. Co., 36 Mo. 543; S. C. 25 Mo. 550; Lee v. Village of Sandy Hill, 40 N. Y. 442; Barry v. St. Louis, 17 Mo. 121.

4. The jury assessed the value of the rocks taken and carried away separately from the damages for the entry upon the land, and the court, for the reasons set out in the judgment, trebled the same. Ewing v. Leaton, 17 Mo. 465; Labeaume v. Woolfolk, 18 Mo. 514; Herron v. Hornback 24 Mo. 492.

HOUGH, J.

This was an action founded upon the first section of our statute in relation to “Trespasses.” The petition charged the defendant with digging up and carrying away from the land of the plaintiff certain rock in which the defendant had no right or interest, and asked judgment for treble damages. The material portion of the defendant's answer is as follows: Defendant further answering said petition says, that on or about the 6th day of April, 1874, said defendant, by her agent, purchased of the American Bridge Company all the broken rock then being on said above described piece of ground, and which was then occupied by said American Bridge Company as a stone yard; that afterwards, at the request and with the consent of the managing officer of said bridge company, and under and by virtue of the contract, previously entered into by and between said bridge company and defendant, the agents and servants of defendant took and carried away a portion of said broken rock, so purchased and obtained from said bridge company as aforesaid; that at the time said rock was purchased and removed as aforesaid, said ground was occupied by and was under the control of said American Bridge Company, except that portion thereof which was and is within the limits of a street of said city of Boonville, known as Water street; that no part of said rock, so taken as aforesaid, was on ground in the possession or under the control of plaintiff, nor had said plaintiff any right or interest in said rocks, so taken as aforesaid, or any part thereof.” The plaintiff replied, denying the foregoing allegations. The jury returned a verdict for the plaintiff, and found the value of the stone taken to be $109.20, which sum was trebled by the court, and the defendant has appealed. There is no bill of exceptions in this case, and the only question is whether the pleadings will support the judgment.

The city had authority under its charter to purchase and use stone for the purposes of the corporation, and the trespass in this case did not result therefore from the doing of an unauthorized act. Nor is the case like that of Thomson v. The City of Boonville, 61 Mo. 283, where an act injurious to the plaintiff, but within the power of the corporation was performed by certain persons who assumed to act by authority of the city, but who were in fact without any lawful authority authorizing them to do the acts complained of, in which case it was held that the city was not liable. It is apparent in this case that the defendant was engaged in doing what it might lawfully do under its charter, and it does not appear that its servants acted without proper authority; but it is evident from the verdict of the jury that the American Bridge Company had no right to the possession of the plaintiff's land, nor any interest in the stone thereon, and could therefore confer none on the defendant, and for that...

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    ...cannot be bound beyond that amount, which will be sufficient for her indemnification." 12 Rob., at 677. Similarly, in Hunt v. City of Boonville, 65 Mo. 620 (1877), the Missouri Supreme Court held that a municipality could not be found liable for treble damages under a trespass statute, notw......
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    ...declined to intervene in this action. 3. It bears noting that in City of Newport, the Supreme Court relied in part upon Hunt v. City of Boonville, 65 Mo. 620 (1877). See City of Newport, 453 U.S. at 261-62, 101 S.Ct. 2748. In Hunt, the Missouri Supreme Court held that a municipality could n......
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