City of Denver v. Porter

• Decision Date: 27 November 1903
• Docket Number: 1,838.,1,837
• Citation: 126 F. 288
• Parties: CITY OF DENVER v. PORTER. DENVER, U. & P.R. CO. v. PORTER.
• Court: U.S. Court of Appeals — Eighth Circuit

126 F. 288

CITY OF DENVER v. PORTER.

DENVER, U. & P.R. CO. v. PORTER.

Nos. 1,837, 1,838.

United States Court of Appeals, Eighth Circuit.

November 27, 1903

Wm. W Field (E. O. Wolcott, J. F. Vaile, C. W. Waterman, and E. N Clark, on the brief) for plaintiff in error railroad company.

Geo Allan Smith (Henry A. Lindsley, on the brief), for plaintiff in error city of Denver.

Edwin H. Park, for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and HOOK, District judge.

HOOK District Judge.

This was an action brought by James R. Porter against the Denver, Utah & Pacific Railroad Company and the city of Denver to recover damages resulting from the destruction of a building belonging to him by fire alleged to have been caused by their wrongful acts and negligence. Porter recovered a judgment in the Circuit Court against both the railroad company and the city, and they severally prosecuted writs of error this court.

Porter was the owner of a small tract of land within the limits of the city of Denver, upon which had been erected the building in question. Contiguous to his premises was a tract of unplatted, low-lying land belonging to the railroad company, but which was not used by it for railroad purposes. About 20 years prior to the occurrence of the fire which destroyed Porter's building, the city authorities, with the assent and acquiescence of the railroad company, designated the land of the latter as a public dumping ground, and thereafter there was deposited thereon the refuse of the city, such as ashes, paper, straw, manure, boxes, and scrap metal, much of which was gathered by the city carts from the alleys and conveyed to this place of disposal. The garbage of the city, using that term in its restricted sense, was not deposited at this place. The municipal authorities delegated the supervision and control of the dumping ground to the health department, and officers or employees of that department were almost constantly present, charged with the duty of directing the placing and disposition of the waste materials in a proper manner for the confinement thereof within the limits of the dumping ground, and the prevention of combustion and the spreading of fire. On the 2d day of May, 1901, a fire originating in the dump escaped the control of those in charge, and driven by a high wind, spread over the intervening ground to Porter's building, causing the destruction and damage complained of.

The judgment against the railroad company can be upheld, if at all, only upon the ground that it was the owner of the premises upon which the fire originated and consented to the use thereof by the city for the purpose mentioned. There was no substantial evidence showing that the company retained or exercised any supervision or control over the actual conduct of the work. The mere fact that on one occasion during the long period of years in which the dump was maintained an official connected with the company made a suggestion as to the filling of the ground, and that servants of the company employed in that vicinity twice assisted in efforts to subdue fires which had broken out in the dump, is insufficient for that purpose. No fires were set out or maintained in the dump with the company's consent or for its benefit. The collection of the refuse or waste materials of a city, and the deposit thereof in suitable localities by or under the direction of its agents or representatives, is in the exercise of a proper municipal function. A disposition of the constant accumulation of such materials is not only lawful, but also necessary to the convenience of the public. The consent by an owner of land that the proper authorities of a city may use it for such purpose is a letting for a lawful use. The location of the land of the company and its topographical features made it well adapted to the purpose for which the city used it. No question is made concerning this. The maintenance of a public dump thereon was not in itself a nuisance. It was established under the express authority of the ordinances of the city, and pursuant to power delegated by the Legislature of the state. In the absence of negligent management, the presence of the dump was no more of a menace to neighboring buildings than any one of many manufacturing and business industries which are common in populous centers. If one lets the use of his premises to another for a lawful purpose, not inherently dangerous or noxious to his neighbors or their property, and reserves or exercises no supervision over the manner in which the business is conducted, he is not liable for damages arising from the mere negligent acts of the occupant. This rule is elementary, and the undisputed facts appearing in the record require its application in the case of the railroad company. In view of these considerations, it follows that the circuit court should have granted the request of the railroad company at the conclusion of the trial that the jury be instructed to return a verdict in its favor.

The mere fact that the fire which destroyed Porter's building originated on the land of the railroad company, and spread beyond its confines, does not, in the absence of other considerations, give rise to a liability for the damage done. The English authorities cited by counsel to the effect that a liability arises whether there was or was not negligence in the origin or spread of the fire, while illustrative of the rule of the ancient common law or custom of the realm, have not been followed in this country, and in England they are more valuable in their historical aspect than as legal precedents for the present day; their doctrine having been long since abrogated by acts of Parliament. The rule which now prevails, in the absence of special regulation by statute, is that liability depends upon the existence of negligence in the origin of the fire, or in its control after it has been started, or in some special cases in failing to provide means for its extinguishment. Without negligent act or omission, there can be no responsibility for the ensuing damage. Negligence in such cases is the gist of the action, and it is not presumed, but must be affirmatively alleged and proved. Musselwhite v. Receivers, 4 Hughes, 166, Fed. Cas. No. 9,972; World's Columbian Exposition Co. v. Republic of France, 91 F. 64, 33 C.C.A. 333; Bock v. Grooms (Neb.) 92 N.W. 603; Vansyoc v. Cemetery Ass'n (Neg.) 88 N.W. 162; Planters' Warehouse & Compress Co. v. Taylor, 64 Ark. 307, 42 S.W. 279; Sweeney v. Merrill, 38 Kan. 216, 16 P. 454, 5 Am.St.Rep. 734; McNally v. Colwell, 91 Mich. 529, 52 N.W. 70, 30 Am.St.Rep. 494; Callahan v. Railway Co., 23 Iowa, 562; Catron v. Nichols, 81 Mo. 80, 51 Am.Rep. 222.

In the case against the city there was a distinct complaint that its servants were guilty of negligence in the supervision and management of the dump, in that they permitted the deposit of ashes containing fire in the midst of large quantities of combustible material; that, when fires occurred in the dump, proper care and prudence were not exercised to prevent them from spreading; and that by reason of these acts and omissions the damage complained of was caused. Assuming for the moment that those in charge of the dump were the servants of the city in its private or corporate capacity, as distinguished from its character as a political subdivision of the state, it is sufficient to say that the issues as to the origin of the smouldering fires in the dump, the origin of the conflagration which spread to Porter's premises, whether the combustible refuse which led the flames over the intervening ground was blown there by the winds or placed there by Porter's tenants, and whether ordinary care and diligence were exercised by those servants, were determined by the jury against the contentions of the city, and the record does not show that their conclusion is unsupported by the evidence and such reasonable inferences as might be drawn therefrom.

It is contended with much earnestness and ability by counsel that in the gathering of the refuse and waste of the city, and the establishment, maintenance, and operation of dumping grounds for its ultimate disposal, the officers of the health department were not engaged in the performance of a duty imposed upon the city for its private or corporate profit pecuniary or otherwise, but that, on the contrary, those officers were the agents and representatives of the public, acting for the public benefit, and that therefore no liability for their negligence rested upon the city. that, although they received their appointment and derived their compensation from the municipality, nevertheless the essential character of their powers and duties determined the identity of their principal, whether the city, on the one hand, or the state, in its sovereign capacity, upon the other; that the powers they were exercising and the duties they were performing pertained to the general police power of the state; and that use was made of the city merely as a convenient mode of exercising a function of government-- of accomplishing the purpose of the state through local instrumentalities. In aid of this contention, the doctrine of Maxmilian v. Mayor, 62 N.Y. 160, 20 Am.Rep. 468, is invoked. In that case the plaintiff's intestate was run over by an ambulance driven by an employe of the commissioners of public charities and correction, and he died from the effect of the injuries he received. Upon a consideration of the nature of their duties and the source of their power, it was held that the commissioners were public officers of the state, and not of the city in its private or...