County Com'rs v. Wise
| Decision Date | 11 June 1889 |
| Parties | COUNTY COMMISSIONERS v. WISE ET UX. |
| Court | Maryland Court of Appeals |
Appeal from Baltimore court of common pleas.
Action by Wise and wife against the commissioners of Harford county for injuries to property occasioned by the washing away of a bridge. The declaration was demurred to because no venue was stated in the margin. Demurrer overruled, and on the trial a verdict and judgment were rendered for plaintiffs, and defendants appeal.
Argued before ALVEY, C.J., and BRYAN, MILLER, and MCSHERRY, JJ.
Wm. Young, John I. Yellott, and Jos. P Merryman, for appellants.
Thos. R. Clendinen, Geo. L. Van Bibber, and D. G. McIntoch, for appellees.
On the 11th day of February, 1885, Sarah A. Wise became the owner of a saw-mill and a grist-mill located on Deer creek, in Harford county. Prior to her purchase of the property the county commissioners changed the bed of a public road which formerly crossed the stream below the breast of the mill-dam, and located it some short distance above the dam. They constructed at the same time an iron bridge across the creek, connecting with this new road. On the 3d of August, 1885, a destructive freshet demolished the bridge. The milldam was partially swept away, and other injuries were done to the property of Mrs. Wise and her husband. They thereupon sued the commissioners, and the case, after having been removed first to Baltimore county and then to Baltimore city, was finally tried there in the court of common pleas. The plaintiffs below, who are the appellees here, insisted that the commissioners had been guilty of negligence in locating and constructing the bridge, and that in consequence of such negligence the bridge was washed from its abutments, and was driven by the flood upon the dam, destroying the latter and causing the other injuries particularly set forth in the record. Considerable testimony was adduced by the appellees tending to show that the abutments of the bridge had been unskillfully and carelessly constructed; that they had been built upon insufficient and improper foundations; that they had been placed too near to the margins of the stream, whereby the passageway for the water was seriously narrowed; and that they had not been, by several feet, elevated far enough above the surface of the stream to allow the water, when high and swollen, to pass freely under the bridge. The appellees also offered evidence tending to show that the bridge had been located at an unsuitable place over a bend or curve in the creek,--the worst point in that section of the county. There was, as is usually the case in such controversies as this, much conflict in the evidence on these subjects, but it is not material or necessary that it be noticed or referred to in considering the questions presented by this appeal.
When a municipal corporation undertakes, in the discharge of its duties, to construct or repair a bridge upon a highway, it is responsible for damage caused by the negligent, careless, or unskillful manner of performing the work. This liability has been asserted and enforced by this court in numerous adjudged cases, some of them of such recent date as to render it unnecessary to make citations from them, or to repeat here the reasons upon which they were determined. Kranz v Baltimore City, 64 Md. 491, 2 A. 908; Hitchins v. Mayor, etc., 68 Md. 100, 11 A. 826. All the authorities agree in holding that where the injury complained of is the result of the exercise by a municipal corporation of its quasi judicial powers, an action will not lie if there has been no negligence, carelessness, or unskillfulness in doing the work which caused the damage. 2 Dill. Mun. Corp. (2d Ed.) § 753, and cases cited in the note thereto. But what particular acts are to be regarded as discretionary or quasi judicial on the one hand, and what purely ministerial on the other, is a question often exceedingly difficult to determine, and one which the adjudged cases are by no means harmonious in deciding. It would be a hopeless task to attempt to reconcile these conflicting decisions. There are extreme ones in both directions. While it is important that the necessary powers of a municipality, conferred upon it for the public welfare, should not be unreasonably restricted, and should not be so construed as to subject the body corporate to liability in a civil action for an honest mistake of judgment made when acting in a quasi judicial character, it is no less incumbent on the courts to lay down no rule which shall, when applied in practice, deprive the individual of redress where his property has been damaged or invaded, or his person has been injured by the improper and negligent execution of these same discretionary powers. It is not easy, if, indeed, it be possible, to define with precision, except theoretically, the exact line which divides the quasi judicial from the ministerial powers of a public corporation, because they are often so dimly separated as to be apparently blended together. "All that can be done with safety," observed Mr. Justice FOOT in Lloyd v. City of New York, 5 N. Y. 369, "is to determine each case as it arises." However, the decision of the case at bar does not require that we should adopt any definition of these powers, broad and general enough to comprehend other questions than the ones involved in this controversy. A bridge, like a sewer, may be so located as inevitably to cause injury to another, no matter how skillfully put together; and it would be strange indeed if the municipality could be held for the damage resulting from the defective mechanical execution of the work when properly located, and should be exempted from liability for precisely the same damage to the same individual caused by the careless and unskillful location of the same structure when properly put together. The construction of a bridge at a place totally unsuited for it, because calculated to occasion an injury like that complained of, cannot be skillful in any sense of the term. It is undeniably true that a municipal corporation has no more authority than a private person to create a nuisance. Noonan v. City of Albany, 79 N.Y. 470. It has consequently no right to build its works in such a manner, and at such a place, as will inevitably cause injury to another. Inhabitants of West Orange v. Field, 37 N. J. Eq. 600; Railroad Co. v. Town of Norwalk, 37 Conn. 109. Where the injury resulted from the narrowness of the span of a bridge, it has been held to be due to a defect in construction. Perry v. City of Worcester, 6 Gray, 544. If it be occasioned by the insufficiency of the size of a sewer it is likewise such a defect in construction as will render the corporation liable. Hitchins v. Mayor, etc., 68 Md. 100, 11 A. 826; White Lead Co. v. Rochester, 3 N. Y. 463. If it be a result of the bridge or sewer being placed at such a locality as to produce the damage actually inflicted, it cannot be said that the construction was other than negligent and unskillful. Skillful construction means something more than...
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