District of Columbia v. Totten

• Decision Date: 04 May 1925
• Docket Number: No. 4072.,4072.
• Citation: 55 App. DC 312,5 F.2d 374
• Parties: DISTRICT OF COLUMBIA v. TOTTEN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 312, 5 F.2d 374 (1925)

DISTRICT OF COLUMBIA v. TOTTEN.

No. 4072.

Court of Appeals of District of Columbia.

Submitted December 2, 1924.

Decided May 4, 1925.

F. H. Stephens and R. L. Williams, both of Washington, D. C., for appellant.

H. E. Davis, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.

BLAND, Acting Associate Justice.

The appellee, Howe Totten, recovered a judgment in the Supreme Court of the District of Columbia against the District of Columbia, appellant, in the sum of $7,500, from which judgment appellant appeals.

The declaration charges the defendant with having maintained a nuisance as respects plaintiff in the use, occupation and enjoyment of his home. It declares that plaintiff was the owner and in possession of a certain tract of land in Fairfax county, Va., and had been in such possession for about five years prior to April 1, 1910, when the defendant began to use a neighboring and partly contiguous tract of land and to construct certain temporary structures thereon, to be used as a workhouse and place of detention for prisoners convicted of divers criminal offenses in the District of Columbia; that on or about September 1, 1910, the defendant began the erection of permanent structures and buildings for use as a workhouse and place of detention or prison; that there were about 300 prisoners detained there; that in the defendant's said operations it left the prisoners unguarded and, without guarding officers or agents and employees to watch them, and to keep them from harming and molesting plaintiff and his family; that the control over the prisoners was lax and inefficient; that a large number of the convicts sent to the place of detention escaped; that such escaped prisoners annoyed and frightened the employees of the plaintiff as well as his family; that the escaping prisoners were dangerous; that after escaping they would approach near the plaintiff's premises in large numbers, and would trespass upon plaintiff's land; that the unguarded prisoners wandered up and down the public highway in front of plaintiff's land, near his dwelling house; that the construction was done by prisoners, and that during the early portion of said construction period there were no adequate means provided for restraining them, either in the way of suitable prison buildings or guards; that the plaintiff was required to go armed on his own premises; that on account of the conditions complained of he and his family were compelled to abandon their premises and live elsewhere, and that he was thereby deprived entirely of the comfortable enjoyment of his home as a residence, and prevented from giving the time and attention necessary for the proper care and maintenance of certain valuable and pedigreed animals, which he was breeding and raising as a business; that by the reason of these facts he suffered irreparable damage in the use and enjoyment of his premises in the particulars heretofore related, and in the depreciation of the value of his land and premises.

The proof showed that the large tract of land, consisting of several thousand acres, upon which the prison was being constructed, was covered with woods and thick underbrush; that, in clearing the woods, prisoners had easy opportunity of escaping, and did escape in large numbers; that the prisoners were not shackled, nor handcuffed, nor had leg balls or other impediments which would prevent them from escaping; that they wore striped clothes; that the prison was located on the opposite side of the river from the village of Occoquan; that plaintiff's land was within one-half mile of the railroad station of Lorton, and four miles from the village of Occoquan; that the escaping prisoners most frequently, after escaping, traveled in the direction of Washington City, and in doing so passed over or near plaintiff's premises; that escaping prisoners and pursuing guards were on his place almost daily; that escaped prisoners broke into the tenement houses; that on account of the conditions complained of, after plaintiff moved from the premises, he could not get a tenant to live on the place rent free; that escapes from the prison were frequent and recaptures were infrequent; that the same condition applied to others owning land in the immediate neighborhood during the construction of the prison; and the evidence, we think, discloses that, on account of the frequency of the escapes of dangerous men, the entire neighborhood lived in fear and were prevented from leaving their homes and enjoying the occupancy of their premises.

The appellant assigns as error the refusal of the court to grant the motion of the defendant for a directed verdict in its behalf, and that the court erred in charging the jury to the effect that plaintiff could recover in the case on the evidence showing damages growing out of the establishment and maintenance of the workhouse and reformatory. Further assignments of error were predicated upon the refusal of the court to permit the defendant to show that the property values in and around the neighborhood of the workhouse and reformatory were enhanced by the establishment of the institution. It is also assigned as error that the court refused to grant certain instructions.

The instructions of the court, while not as clear as they should have been, in view of the allegation in the declaration that the value of the land and premises was greatly depreciated and reduced, we think reasonably and fairly confines the recovery of damages to those sustained by the plaintiff on account of his being deprived of the enjoyment of the use of his premises, on account of a nuisance maintained by the defendant in the manner in which it attempted to perform the function of keeping prisoners and using prison labor to build the prison in which to keep them. While the jury may have concluded that the market value of plaintiff's land had been greatly reduced, and while the admission of certain excluded testimony as to the market value of certain adjacent real estate might have removed this impression from the minds of the jury, we think the instructions, as a whole, tended to remove any such impression. The record does not disclose any attempt on the part of the defendant to have the declaration as to the reduced value of the real estate stricken from plaintiff's declaration, nor do we find any objection interposed, or motions to strike out of the evidence statements of witnesses tending to show depreciation in value.

We find no reversible error in the instructions given by the court, or in its refusal to give instructions offered by the defendant. Under the circumstances, it was not reversible error for the court to refuse to permit the defendant to show the enhanced value of real estate around the neighborhood of the workhouse after its establishment.

The two questions raised by the appellant are stated, in its brief, as follows: "(1) Is the District of Columbia exercising a governmental function in the operation and maintenance of its workhouse and reformatory located at Occoquan, Va.; and, if this be answered in the negative, (2) were the workhouse and reformatory so maintained and operated by the District of Columbia during the period of time complained of by the appellee as to constitute an actionable nuisance?"

There are few questions upon which the courts have passed that are so hopelessly in conflict and so unsatisfactorily settled as the question as to when a municipality is performing a governmental function. The rule is unmistakably laid down in numerous very respectable and apparently well-reasoned authorities that a municipality, while engaged in the exercise of its police power and acting in the performance of a governmental function, is not liable to answer in damages for the negligent omissions or commissions of its officers which result in damages to an individual.

While the decisions do not definitely nor satisfactorily settle the question as to just what acts a municipality may do in the performance of a governmental function without liability for the negligence of its servants and officers, we recognize that there has been a long-continued effort on the part of the courts to differentiate between acts done in the performance of a governmental function carrying out a legislative mandate, and those acts which are frequently referred to as municipal acts or the exercise of corporate powers. The difference seem to rest in the fact that in the first instance the municipality is performing the mandate of the Legislature as related to a public duty generally, and in the other instance it is related only to the exercising of its private rights as a corporate body.

Unquestionably the authorities agree that the conduct of a prison for the retention of criminals who prey upon society generally is the performance of a governmental function, in which the public generally is concerned, and in which the police power of the state is exercised. So, as far as the case at bar is concerned, leaving out the question of the authority of the District of Columbia to establish a prison outside of the District under a special act of Congress, we feel that we are well supported by the great weight of authority in holding that the acts of the District in actually maintaining a prison for the retention of prisoners is the performance of a governmental function. District of Columbia v. Tyrrell, 41 App. D. C. 463; Brown v. District of Columbia, 29 App. D. C. 273, 25 L. R. A. (N. S.) 98; Coates v. District of Columbia, 42 App. D. C. 194; Jones v. District of Columbia, 279 F. 188, 51 App. D. C. 319. (It will be noted that these cases apply the doctrine of governmental function in cases involving negligence.)

It may also be asserted, with reasonable assurance of verity, that the courts generally hold that a municipality is not liable for...