Collins v. Mayor of Macon
| Decision Date | 31 October 1882 |
| Citation | 69 Ga. 542 |
| Parties | COLLINS v. THE MAYOR, ETC., OF MACON |
| Court | Georgia Supreme Court |
September Term, 1882.
1. The powers and duties of municipal corporations are legislative or judicial and ministerial. For a failure to perform the first, o?? for errors of judgment committed in their performance, the corporation is not liable; for neglect to perform ministerial duties ?? for negligent, improper or unskillful performance thereof, the corporation is liable.
( a. ) Aliter, where the act complained of is entirely outside of the general or special powers of the corporation.
2. Cities (unless acting under some special grant of power) like individuals, must so use their own property as not to damage that ?? another.
3. All persons owning lands have power to ditch and embank them so as to protect them from freshets and overflows. But to render a city liable for allowing an embankment on its land to be destroyed, it must appear that there was an imperative duty to maintain the same.
4. Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed.
( a. ) The mere use of the corporate property of a city by it for a particular purpose, is not a dedication of such property for that purpose forever.
5. Without special statutory authority by which it is made the duty of a municipal corporation to erect, or, after erecting to maintain dykes, walls or levees to prevent the waters of a natural stream within the corporate limits from overflowing its banks and damaging a citizen's premises, no recovery can be had against the corporation for causing or permitting the destruction of such works voluntarily erected by it on its commons or the corporate domain, though they may have stood for a great length of time and been trusted to by the adjacent landholder both in making his original purchase and in making his improvements.
6. A duty to erect and maintain works to protect a bridge belonging to the corporation does not raise an obligation to keep such works on foot for other purposes, such as preventing damage to citizens by overflow.
Municipal Corporations. Damages. Dedication. Before 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.
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, he further alleged said levee was constructed " for the purpose of protecting the eastern 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 Ill. 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 i?? the tortious act complained of be done by its officers under its previous...
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