Collins v. The Mayor

Decision Date30 September 1882
PartiesCollins. vs. The Mayor, etc., of Macon
CourtGeorgia Supreme Court

Municipal Corporations. Damages. Dedication. Be-fore Judge SIMMONS. Bibb Superior Court. April Term, 1882.

Reported in the decision.

R. W. Patterson; W. Dessau, for plaintiff in error.

Hill & Harris; S. H. Jemison, for defendants.

Speer, Justice.

This was an action for damages by the plaintiff in error against the defendant, which was dismissed on demurrer, to which judgment exception was taken, and error as signed thereon.

The declaration alleged, that plaintiff was the owner of certain city lots in Macon, with dwellings thereon; that before he became the owner, and made said improvements, the defendant, "for the protection of the inhabitants in the neighborhood of their property, " constructed a levee, the distance of one hundred and fifty yards, on its own land, said levee being necessary for the protection of the people dwelling between the levee and 5th Street, which extends from the bridge northwardly, said levee being built and serving its purpose for more than fifteen years prior to 1st of January, 1876; that soon after that time defendant, over the protest of plaintiff, sold said land and levee constructed thereon, and conveyed the same to certain persons, who declared their intention of destroying said levee, which they did, —which destruction left the lots of petitioners exposed to every rise in the river, and the flooding and destruction of the same; and afterwards by reason of a rise in said river, the lots of defendant were overflowed and damaged, and his tenants forced to vacate the houses thereon for a long space of time, to his damage, etc.

By an amendment to his writ, ho further alleged said levee was constructed " for the purpose of protecting theeastern pier or abutment of the city bridge, over said stream, from the rise and overflow of the same, etc., and that said levee was constructed by defendant under its charter and within the scope thereof."

The question made here is, do the averments made in the declaration set forth such a cause of action as would entitle the plaintiff, on proof thereof, to a recovery? The court below held that they did not, sustained the demurrer and dismissed plaintiff's suit, to which he excepted.

1 Municipal corporations are the creatures of statute. They possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them or other statutes applicable to them. Powers and duties of a municipal corporation under its charter consist of acts which are legislative or judicial in their nature, and those which are purely ministerial. For the failure to perform the first, or for errors of judgment committed in their performance, the corporation is not responsible, for they are deemed to be a part of the state's power, and, therefore, under the same immunity. For ministerial acts the rule is different, as damages may be recovered either from the neglect to perform them, or from performing them in an unskillful, negligent or improper manner. 2 Thompson on Neg., 731; 20 111., 445; 9 N. Y., 459; 1 Sanford, S. C, 465; 65 Ga., 379. But this liability, for ministerial acts is further qualified, for if the act complained of lies wholly outside, of the general or special powers of the corporation as conferred, in its charter or by statute, the corporation can in no event be liable, whether it directly commanded the performance of the act, or whether it be done by its officers without this express command, for a corporation cannot, of course, be impliedly liable to a greater extent than it could make itself by express corporate vote or action.

But if the tortious act complained of be done by its officers under its previous direct authority, or when it has been ratified and adopted, expressly or impliedly, by itor when done by its agents or servants in the execution of corporate powers, or the performance of corporate duties of a ministerial nature, and was done so negligently or unskillfully as to injure others, then it would be liable. 2d Dillon, §968.

2. As to the property held by-. corporation, the rule is, that it Is liable for the improper management and use of its property to the same extent and in the same manner as private corporations and natural persons are, and unless they are acting under some valid special legislative authority, they must, like individuals, use their own so as not to injure that which belongs to another. 19 Pick., 511; 102 Mass., 489.

3. Under certain sections of the city charter, we are inclined to think the city had an implied permissive authority for the preservation and protection of its property from floods or overflows, as well as in promoting the security, welfare and health of the city, to erect this levee on its own land. Moreover, the general law of the state authorizes all persons who own, or may hereafter own lands, to ditch and embank them, so as to protect the same from freshets and overflows. Code, §2232. The city owned the lands upon which this levee was built, and the construction of it did no harm; but the complaint is that its permissive destruction by...

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4 cases
  • Knowles v. Housing Authority of City of Columbus
    • United States
    • Georgia Supreme Court
    • November 13, 1956
    ...Tounsel v. State Highway Department, 180 Ga. 112, 178 S.E. 285; Millwood v. DeKalb County, 106 Ga. 743, 32 S.E. 577; and Collins v. Mayor, etc. of Macon, 69 Ga. 542. Those cases are cited in the brief for the defendant and relied on for authority that the State Highway Department, a county,......
  • Dunaway v. Windsor
    • United States
    • Georgia Supreme Court
    • June 6, 1944
    ...may be made 'in writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use.' In Collins v. Mayor &c. of Macon, 69 Ga. 542, it was that: 'Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts show......
  • Dunaway v. Windsor, 14866.
    • United States
    • Georgia Supreme Court
    • June 6, 1944
    ...writing, or by parol; or it may be inferred from his acts, or implied, in certain cases, from long use." In Collins v. Mayor &c. of Macon, 69 Ga. 542, it was ruled that: "Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an ass......
  • Collins v. Mayor of Macon
    • United States
    • Georgia Supreme Court
    • October 31, 1882

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