Briegel v. City of Philadelphia

• Decision Date: 28 May 1890
• Docket Number: 267
• Citation: 19 A. 1038,135 Pa. 451
• Parties: C. M. BRIEGEL v. CITY OF PHILADELPHIA
• Court: Pennsylvania Supreme Court

19 A. 1038

135 Pa. 451

C. M. BRIEGEL v. CITY OF PHILADELPHIA

No. 267

Supreme Court of Pennsylvania

May 28, 1890

Argued March 26, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 3. OF PHILADELPHIA COUNTY.

No. 267 January Term 1890, Sup. Ct.; court below, No. 105 September Term 1888, C.P. No. 3.

On September 6, 1888, Catharine M. Briegel brought trespass against the city of Philadelphia, to recover damages for injuries to the houses of the plaintiff, Nos. 3525 and 3527 Rockland street, alleged to have been caused by the negligence of the city in not properly constructing the plumbing and drainage connected with the privy well of a public school building, owned and maintained by the city. Issue.

The cause was submitted, under the act of June 16, 1836, P.L 717, to Mr. Henry M. Dubois, as referee, who reported in part as follows:

Jacob J. Briegel, son of the plaintiff, was acting as agent in looking after and renting the premises of the plaintiff, Nos 3525 and 3527 Rockland street, West Philadelphia. As early as August, 1882, the cellars of said houses were covered with water from eighteen to twenty-four inches, and the water had a very sickening odor. It was dirty-looking and scummy on top, and the cellars had water in them during the winter of 1882 and 1883. Early in 1883, the water complained of appeared in the cellars again, and continued until the summer of 1888.

To the east of No. 3525 Rockland street, is a lot upon which is erected a carpenter shop, to which there is no cellar. It has a brick wall on the east side and frame front and back. The carpenter shop occupies the entire width of the lot. To the east of the carpenter shop lot is a public schoolhouse property, and at the southwest corner of said property, next to the carpenter shop, is a privy well. Complaints were made to the board of school directors, board of health and board of education, that the said privy well was the cause of the water in the cellars. Promises were made to remove the cause and several efforts were made on their part to do so, but the water continued to flow into the cellars until the summer of 1888, when a cast-iron basin was substituted and the nuisance abated. . . .

The referee finds that the nuisance complained of was caused by and traced to the defectively-constructed privy well on the public-school grounds. . . .

Mr Briegel, agent of the houses, testified that, because of the said nuisance, the houses remained vacant for nine months, the loss being $150, and the loss in the reduction of rents was $257. He testified that the rent received now is $12 and $14 per month respectively; that prior to the existence of the nuisance the rent was $14 and $15 per month respectively. A number of witnesses produced by plaintiff testified that the houses were vacant, and tenants left the premises because of its wet and damp condition occasioned by the water in the cellars. . . .

The referee will allow the following items of damage:

Papering

$65 28

Carpentering

57 89

Plumbing and pumping water out of cellars

50 00

Paid to laborers, scrub woman, mortar floor

50 00

Loss of rent, houses vacant for nine months

150 00

Loss in reduction of rent of houses six years

257 00

Total damage

$630 17

Counsel for the defendant contended that the defendant is not liable in damages for the nuisance resulting from a defectively-constructed privy well on a public-school property, under the decision of Ford v. School Dist., 121 Pa. 543; Elliott v. Philadelphia, 75 Pa. 347; Boyd v. Insurance Patrol, 113 Pa. 269.

In the case of Ford v. School District, it was decided that school districts are but agents of the commonwealth, quasi corporations for the sole purpose of the administration of the commonwealth's system of public education; that this system is strictly and exclusively a state institution, and is a public charity; hence the defendant was not liable for injuries done by the janitor of the school to the plaintiff, one of the pupils; and it was also decided, that as the fund raised by taxation for school purposes can be used only in the ways mentioned in the statute, either for the erection of buildings or the conduct of the school itself, no recovery could be had against the defendant for that reason, and the further reason that public policy would not permit the school fund to be diminished for the benefit of any private individual.

It is contended by counsel for the plaintiff that the cases above cited have no application to this case, because the school district is not sued here, but the city of Philadelphia, which is the owner in fee of the school premises in question; that the act of May 8, 1854, § 28, P.L. 623, authorizes the several school boards of the commonwealth to levy and collect a tax to keep the schools of the district in operation; that in this case it is the city that owns the schoolhouse, the city that levies the taxes and that makes appropriations through its councils for maintaining the schoolhouse; that this is not a case where the entire resources of a district are appropriated to the maintenance of a school, and in that respect this case differs from the case of Ford v. School District.

The master is of the opinion that the case in question cannot be governed by the cases above cited by the defendant, because they have no application whatever to this case. But the legal maxim, sic utere tuo ut alienum non laedas, is the principle to be applied to the facts in this case. "A man must enjoy his own property in such a manner as not to invade the legal rights of his neighbor." "Every man is restricted against using his property to the prejudice of others." "And this rule of law applies to the public, in at least as full force as to individuals:" Broom's Leg. Max., 364.

The referee is of the opinion that the case of Shuter v. Philadelphia, 3 Phila. 228, determines the liability of the defendant to the plaintiff in this case. It was held in that case that a municipal corporation owning and using property for public purposes is subject to the rule, sic utere tuo ut alienum non leadas; that the city is liable for damages to a well for the erection of a gas reservoir. Sharswood, J., in that case said: "It does not follow that because a municipal corporation has the right to become the owner of an adjoining lot for some public purpose, they have a right to erect a nuisance on it. If they build a lock-up or a station-house, they cannot dig a privy, however skilfully they may do it and however convenient it may be, if the result is that the filth of it is discharged on their neighbors." It is true that that is but a dictum of the learned justice who delivered the opinion, but the referee accepts that as being sound law. In a number of cases, it has been decided that a municipal corporation is not liable for the misfeasance of its police officers, because the police power of the city is derived from the state; but Mr. Justice Sharswood declared that a police station owned by the city could not have a privy in it whose filth is discharged on the neighbors' premises, without being answerable in damages for the injury thus done.

In another respect does this case differ from the case of Ford v. School District. One reason in that case for holding that the defendant was not liable, was that the entire resources of the school district can be used only for the erection of buildings, or the conduct of the school itself; and, as these districts can have no fund out of which to pay damages, such as are claimed by the plaintiff in this case, their recovery would be to no purpose. But this suit is brought against a municipal corporation which has other property and funds than that which is contributed for a special charitable purpose.

Applying the facts as found by the referee to the law as laid down in Haugh's App., 102 Pa. 42, and Shuter v. Philadelphia, 3 Phila. 228, the referee awards the sum of six hundred and thirty (630) dollars and seventeen (17) cents to the said plaintiff, and against the said defendant, for the damages which said plaintiff has suffered by reason of the nuisance complained of, together with the costs of this suit.

Exceptions to the findings and conclusions of the referee, were dismissed by the court, after argument, and the report confirmed; whereupon the defendant took this appeal, specifying that the court erred:

1. In sustaining the report of the referee.

2. In finding for the plaintiff.

3. In not finding for the defendant.

4. In finding for the plaintiff in the sum of $630.17.

5. In allowing the plaintiff $257 for loss in reduction of rent during six years.

6. In allowing the plaintiff $150 for loss of rent on account of the houses being vacant for nine months.

7. In finding that the case of Shuter v. Philadelphia, 3 Phila. 228, determines the liability of the defendant in this case.

8. In not finding that the liability of the defendant is determined by Ford v. School Dist., 121 Pa. 545.

Judgment affirmed.

Mr. Leonard Finletter (with him Mr. Charles F. Warwick, City Solicitor), for the appellant:

1. An examination of Shuter v. Philadelphia, 3 Phila. 228 will disclose a wide difference between that case and the present one. The principle upon which the city was held liable therein, is a different one from that sought to be applied here. The injury in that case was caused by the erection of a reservoir for gas, and in the erection of gas works the city of Philadelphia is not acting in the same capacity as when it conducts the public schools. It is well settled that a municipal corporation, carrying on a business for profit, makes itself liable as a private corporation, so far as that business is concerned: Scott v. Mayor of Manchester, 1 H. & N. 49; Coe v. Wise,...