Duncan v. City Of Lynchburg

• Decision Date: 08 February 1900
• Citation: 34 S.E. 964
• Parties: DUNCAN. v. CITY OF LYNCHBURG.
• Court: Virginia Supreme Court

34 S.E. 964

DUNCAN.

v.CITY OF LYNCHBURG.

Supreme Court of Appeals of Virginia.

Feb. 8, 1900.

MUNICIPAL CORPORATIONS—CITY CHARTERS-CONSTRUCTION—POWERS AS TO PROPERTY-ROCK QUARRY — OWNERSHIP AND OPERATION — INJURY BY AGENT OR EMPLOYES — CITY'S LIABILITY—ACTION FOR NUISANCE— DEMURRER—JUDICIAL NOTICE.

1. The power conferred by Lynchburg City Charter, c. 6, § 7 (Acts Assem. 1895-96, p. 201), providing (subsection 3) that the council shall have power "to purchase, hold, sell, and convey real and personal property necessary for its uses and purposes, " must be exercised within the limits of the city.

2. It is not indispensable to the objects for which a municipal corporation was created that it should own and operate a rock quarry.

3. If the power to acquire and operate a rock quarry can be implied from Lynchburg City Charter, c. 6, § 7, authorizing the city (subsection 39), in connection with the county of Camp-bell, inter alia, to pave and macadamize the county highways within two miles of the city, it would not be liable for an injury caused by its agents or employés in the exercise of such power, as such section also provides that it shall not be construed to fix any liability for the improper exercise of the powers conferred, except damages for land condemned for public highways.

4. Whether or not the work in which city officials were engaged when a nuisance, complained of, was created, was within the powers of the city, may be raised by demurrer to the declaration, as judicial notice will he taken of its charter.

Error to corporation court of Lynchburg.

Case by one Duncan against the city of Lynchburg. From a judgment for defendant on sustaining a demurrer to the declaration, plaintiff appeals. Affirmed.

A. S. Hester, for plaintiff in error.

N. C. Mauson, for defendant in error.

BUCHANAN, J. This is an action on the case against the city of Lynchburg for creating and continuing a nuisance near the premises of the plaintiff, to the damage of the health and comfort of himself and family.

It is averred in the declaration that the defendant, while operating a rock quarry outside of the limits of the city, erected a privy for the use of its employes, including its chain gang, over a stream of water which runs under the front porch of the dwelling house occupied by the plaintiff, situated near by, and just below the quarry, and so polluted the stream as to render his premises unfit for habitation, and to cause serious sickness in his family.

The defendant demurred to the declaration upon the ground that the injury complained of was not caused by an act done within the scope of the power and authority of the city, but was the result of an ultra vires act, for which the city was not liable.

The trial court sustained the demurrer and gave judgment for the defendant To that judgment this writ of error was awarded.

The question presented for our determination is whether the nuisance complained of was created or continued by the agents or employes of the defendant city while engaged in a work which was within its corporate powers.

In order to render a municipal corporation liable in damages for the torts of its agents find employes, it is necessary, among other things, that the injury complained of be caused by, or result from, an act done in the exercise of some power conferred upon it by its charter or other positive enactment.

"If the act complained of, " says Judge Dillon, "necessarily lies wholly outside of the general or special powers of the corporation, as conferred in its charter or statute, the corporation can in no event be liable to an action for damages, whether it directly commanded the performance of the act, or whether it be done by its officers without its express command. * * * But, if the wrong ful act be not in this sense ultra vires, it may be the foundation of an action of tort against the corporation, either when it was done by its officers under its previous direct authority, or has been ratified or adopted expressly or impliedly by it, or when it was done by the officers, agents, or servants of the corporation in the execution of corporate powers or the performance of corporate duties of a municipal nature, and was done so negligently or unskillfully as to injure others, in which case the corporation is liable for the carelessness or want of skill of its officers or immediate servants or agents in the course of their authorized employment, without express adoption or ratifying act." 2 Dill. Mun. Corp. (4th Ed.) § 968; Smith v. City of Rochester, 76 N. Y. 506; Cavanagh v. City of Boston, 139 Mass. 426, 1 N. E. 417; Horn v. Mayor, etc., 30 Md. 218.

It is the settled law of this state that a municipal corporation possesses and can exercise the following powers, and none others; First, those granted in express words; second, those necessarily or fairly implied, or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, —not simply convenient, but indispensable. City of Winchester v. Redmond, 93 Va. 711, 714, 25 S. E. 1001; Railway Co. v. Dameron, 95 Va. 545, 548, 28 S. E. 951; 1 Dill. Mun. Corp. § 89.

By section 7, c. 6, of the charter of the city (Acts Assem. 1895-96, p. 201), it is provided that the council shall, in addition to the general powers vested in it by the laws of the state, have power "to purchase, hold, sell, and convey all real and personal property necessary for its uses and purposes" (subsection 3); "to erect in or near the city suitable workhouses, houses of correction or reformation and houses for the reception and maintenance of the poor and destitute" (subsection 5); "to establish and regulate public squares and parks in or near the city, " and to acquire, by purchase, condemnation; or otherwise, the land deemed necessary for such uses (subsection 6); "to establish water works or gas works within or without said city"; to acquire land for such purposes by purchase or condemnation; and to protect from injury or pollution by proper penalties said works or anything connected therewith within or without the city, "and under this authority to prevent the pollution of the water in the river by prohibiting the throwing of filth or offensive matter therein for a distance of six miles above the limits of the city" (subsection 7); "to establish or acquire by purchase and to operate within...