Grant v. City of Erie

• Decision Date: 30 October 1871
• Citation: 69 Pa. 420
• Parties: Grant <I>versus</I> The City of Erie.
• Court: Pennsylvania Supreme Court

69 Pa. 420

Grant versus The City of Erie.

Supreme Court of Pennsylvania.

October 18, 1871.

October 30, 1871.

October 18th 1871.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1870, No. 116.

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J. R. Thompson and C. H. Curtis, for plaintiff in error, cited Powell v. Salisbury, 2 Younge & Jervis 391; Conrad v. Ithaca, 16 New York Rep. 159; Hudson v. N. York, 9 Id. 163; Shearman & Redfield on Negligence 157, § 130; Rochester White Lead Co. v. Rochester, 4 Comstock's Rep. 468; Furze v. New York, 3 Hill 612; People v. Albany, 11 Wend. 543; McCombs v. Akron, 15 Ohio Rep. 567; Scott v. Hunter, 10 Wright 192; Davenport v. Ruckman, 37 N. York Rep. 568.

E. Babbitt, for defendant in error, cited Carr v. N. Liberties, 11 Casey 324; Fowle v. Alexandria, 3 Pet. Rep. 398; Ryan v. New York Central Railroad, 35 New York Rep. 210; Penna. Railroad v. Kerr, 12 P. F. Smith 353.

The opinion of the court was delivered, October 30th 1871, by SHARSWOOD, J.

We consider the principles involved in these assignments of error to have been authoritatively ruled in Carr v. The Northern Liberties, 11 Casey 324, and unless that decision is to be overruled the judgment below must be affirmed. In that case a power was conferred by its charter upon a municipal corporation "to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district." The municipality did proceed to build culverts in exercise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice Lowrie, before whom the cause was tried in the Court of Nisi Prius, at Philadelphia, without hearing any evidence for the defendants, entered a judgment of nonsuit and the judgment was affirmed by this court. The same learned judge before whom the case had been tried, in delivering the opinion affirming the judgment, said: "We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has a right to demand the exercise of a public function, and there is an officer, or set of officers, authorized to exercise that function, there, the right and the authority give rise to the duty; but when the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed." It is not easy to perceive any ground for a distinction between the facts of that case and of those presented upon this record.

By the ninth section of the Act of April 8th 1833, incorporating the borough of Erie, the burgess and councils of the said borough were, among other things, authorized and empowered "to make and establish a sufficient number of reservoirs to supply water in case of...