Ashley v. City of Port Huron

• Decision Date: 03 January 1877
• Citation: 35 Mich. 296
• Court: Michigan Supreme Court
• Parties: George B. Ashley v. The City of Port Huron

35 Mich. 296

George B. Ashley v. The City of Port Huron

Supreme Court of Michigan

January 3, 1877

Heard October 25, 1876

Error to St. Clair Circuit.

Judgment reversed, with costs, and a new trial ordered.

Chadwick & Voorheis, for plaintiff in error, cited: Dillon on Mun Corp., 799; Aurora v. Reed, 57 Ill. 29; 56 Ill. 132; 41 Ill. 502; 9 Mich. 165; 32 N. Y., 489; 36 N. Y., 54; 25 Wis. 223; Livingston v. McDonald, 21 Ia. 160; Franklin v. Fish, 13 Allen 211; Turner v Dartmouth, 13 Allen 291; Flag v. Worcester, 13 Gray 601; Adams v. Walker, 34 Conn. 466; Ellis v. Iowa City, 29 Ia. 229.

W. F Atkinson, T. J. McSweeney and W. T. Mitchell, for defendant in error, cited: Angell on W. C., 108; 13 Gray 193, 601; Perry v. Worcester, 6 Gray 546; Wheeler v. Worcester, 10 Allen 591; Stone v. Augusta, 46 Me. 127; Benjamin v. Wheeler, 8 Gray 409; 13 Allen 211, 291; Bangor v. Lansel, 51 Me. 521; Radcliff v. Brooklyn, 4 N. Y., 203; Macy v. Indianapolis, 17 Ind. 267; Hoffman v. St. Louis, 15 Mo. 651; Simmons v. Camden, 26 Ark. 276; Pontiac v. Carter, 32 Mich. 164; Rex v. Bristol Dock Co., 6 B. & C., 181; 2 Dillon on Mun. Corp., 673, 753, 782; State v. Freeholders, 3 Zabr. 214; Mich. City v. Roberts, 34 Ind. 471; Sutton v. Clark, 6 Taunt. 42; 32 N. Y., 489; 1 Denio 595; Whart. on Neg., 181, 191; 11 N. Y., 432; 3 Gray 349; 17 Mo. 121; 25 Ill. 424; 22 Vt. 171; 12 C. B., 304.

OPINION

Cooley, Ch. J.

The action in this case was instituted to recover damages for an injury caused to the house of plaintiff by the cutting of a sewer under the direction of the city authorities, and under city legislation the validity of which is not disputed. The necessary result of cutting the sewer, the plaintiff claims, was, to collect and throw large quantities of water upon his premises which otherwise would not have flowed upon them; and it is for an injury thereby caused that he sues. The evidence offered on the part of the plaintiff tended to establish the case he declared upon, but the court instructed the jury that though they should find the facts to be as the plaintiff claimed, they must still return a verdict for the defendant. The ground of this decision, as we understand it, was, that the city, in ordering the construction of the sewer and in constructing it, was acting in the exercise of its legislative and discretionary authority, and was consequently exempt from any liability to persons who might happen to be injured. That is the ground that is assumed by counsel for the city in this court, and it is supposed to be the ground on which the case was decided in the court below.

In Pontiac v. Carter, 32 Mich. 164, the question of the liability of a municipal corporation for an injury resulting from an exercise of its legislative powers was considered, and it was denied that any liability could arise so long as the corporation confined itself within the limits of its jurisdiction. That was a case of an incidental injury to property caused by the grading of a street. The plaintiff's premises were in no way invaded, but they were rendered less valuable by the grading, and there was this peculiar hardship in the case, that the injury was mainly or wholly owing to the fact that the plaintiff's dwelling had been erected with reference to a grade previously established and now changed. In the subsequent case of City of Detroit v. Beckman, 34 Mich. 125, the same doctrine was reaffirmed. That was a case of injury by being overturned in a street in consequence of what was claimed to be an insufficient covering of a sewer at a point where two streets crossed each other. It was counted upon as a case of negligence, but the negligence consisted only in this, that the city had failed to provide for covering the sewer at the crossing of a street for such a width as a proper regard for the safety of people passing along the street would require. If this case is found to be within the principle of the cases referred to, the ruling below must be sustained, and that, we think, is the only question we have occasion to discuss.

The cases that bear upon the precise point now involved are numerous. In Proprietors of Locks, etc., v. Lowell, 7 Gray 223, it was held that a city was liable in an action of tort for draining water through sewers and drains into a canal owned by a private corporation, thereby causing injury to the canal; the conclusion being planted on the right of the corporation "to an unmolested enjoyment of the property." In Franklin v. Fisk, 13 Allen 211, it is said by Chapman, J.: "When highways are established they are located by the public authorities with exactness, and the easement of the public, which consists of the right to make them safe and convenient for travelers, and to use them for public travel, does not extend beyond the limit of the location. A surveyor of highways who fells a tree upon the adjoining land extra viam, is a trespasser (citing Elder v. Bemis, 2 Met. 299). Neither his office nor the existence of the highway gives him any authority to meddle with the land outside the limits of the highway." In Haskell v. New Bedford, 108 Mass. 208, a city was held liable to the owner of a private dock into which, to his injury, the mud and fifth from its sewer was discharged. In Wilson v. New York, 1 Denio 595, on facts substantially like those in the present case, it was denied that plaintiff had any redress against the city. This decision was afterwards questioned in the same court (Weet v. Brockport, 16 N.Y. 161, 170, note), and in some other cases to which reference will be made further on. In Lacour v. New York, 3 Duer 406, it was decided that a municipal corporation in the exercise of its authority over its property was as much bound to manage and use it so as to produce no injury to others as would be an individual owner, and that if the necessary result of an excavation in a public street was to injure the buildings on adjoining ground, the corporation must respond for such injury. In Conrad v. Ithaca, 16 N.Y. 158, a municipal corporation was held liable to one whose building was carried away in consequence of the negligent construction of a bridge by the corporation over a stream flowing through it. In Rochester White Lead Co. v. Rochester, 3 N.Y. 463, the city was made to respond in damages for flooding private premises with waters gathered in a sewer. This case is commented on in Mills v. Brooklyn, 32 N.Y. 489, and distinguished from one in which the injury complained of arose from the insufficiency of a sewer which was constructed in accordance with the plan determined upon. Obviously the complaint in that case was of the legislation itself, and of incidental injuries which it did not sufficiently provide against. The like injuries might result from a failure to construct any sewer whatever; but clearly no action could be sustained for a mere neglect to exercise a discretionary authority.--Compare Smith v. Mayor, etc., 6 Th. & C. 685; 4 Hun 637; Nims v. Mayor, etc., 59 N.Y. 500. Cases of flooding lands by neglect to keep sewers in repair, of which Barton v. Syracuse, 37 Barb. 292, and 36 N.Y. 54, is an instance, are passed by, inasmuch as it is not disputed by counsel for the defendant in this case that for negligent injuries of that description the corporation would be responsible. Those cases are supposed by counsel to be distinguished from the one before us in this: that here the neglect complained of was only of a failure to exercise a legislative function, and thereby provide the means for carrying off the water which the sewer threw upon the plaintiff's premises. The distinction is, that the obligation to establish and open sewers is a legislative duty, while the obligation to keep them in repair is ministerial. But it is not strictly the failure to construct sewers to carry off the water that is complained off in this case; it is of the positive act of casting water upon the plaintiff's premises by the sewer already constructed.

An action like the one at bar was sustained in Nevins v Peoria, 41 Ill. 502; Aurora v....