Hart v. Bd. of Chosen Freeholders of Union County

• Decision Date: 07 June 1894
• Citation: 57 N.J.L. 99,29 A. 490
• Parties: HART v. BOARD OF CHOSEN FREEHOLDERS OF UNION COUNTY et al.
• Court: New Jersey Supreme Court

29 A. 490

57 N.J.L. 99

HART

v. BOARD OF CHOSEN FREEHOLDERS OF UNION COUNTY et al.

Supreme Court of New Jersey.

June 7, 1894.

(Syllabus by the Court.)

Action by William J. Hart against the board of chosen freeholders of Union county and Thomas A. Nevins. Demurrer of defendant Nevins sustained and of the other defendant overruled.

Argued June term, 1893, before the CHIEF JUSTICE, and MAGIE and GARRISON, JJ.

W. R. Wilson, for plaintiff. Chandler Riker, for defendant Nevins. C. D. Ward, for defendant board of chosen freeholders of Union county.

MAGIE, J. The declaration in this case contains two counts, and each of the defendants has separately demurred. The question presented by the demurrer of the board of chosen freeholders of the county of Union will be first considered.

The first count charges that on September 26, 1890, a public highway in Union county was under the control of said board, having been acquired by it under the "Act to enable boards of chosen freeholders to acquire, improve and maintain public roads" (Laws 1889, p. 58), and that thereby it became the duty of said board to maintain said highway in good and safe condition for public use. It then avers that plaintiff on that day, while passing along the highway, which was out of repair and in an unsafe condition for public use, fell into a deep excavation made therein by defendants and left unguarded, and so was seriously injured. Without criticising the peculiar form of these averments, it is obvious that the pleader has designed to charge liability on the defendant the board of chosen freeholders, on the ground that it failed to perform a duty imposed by law in respect of the highway in question. It is equally obvious that the result of the neglect of duty charged was the creation of a common and public nuisance, for which an indictment would lie. Plaintiff, however, suffered special damage from the nuisance so created. The general rule is that one who suffers special damage from a common nuisance may have his action therefor against the creator of the nuisance, although the latter may be also liable to indictment. Co. Litt. 56A. But an exception to this general rule has long been established in this state. It has been uniformly held by our courts that, in the absence of statutory provisions, a municipal corporation charged with the performance of a public duty is not liable to an individual for neglect to perform or negligence in the performance of such duty, whereby a public wrong has been done for which an indictment will lie, although such individual has suffered special damage thereby. The cases are all collected by Judge Garrison in his opinion in Mayor, etc., v. Waters (N. J. Sup.) 28 Atl. 717, and the test of a right of action is declared to be the liability or nonliability to an indictment for a public wrong. For if the wrongdoing of the municipal corporation only creates a private nuisance, for which no Indictment will lie, one suffering special damage may have an action therefor. Jersey City v. Kiernan, 50 N. J. Law, 246, 13 Atl. 170. The exemption of municipal corporations from liability to such actions has been put by our courts on the ground of ancient precedent and public policy. Livermore v. Freeholders, 29 N. J. Law, 245; Id., 31 N. J. Law, 507. Tint public interest is deemed to be conserved by this exemption from liability seems apparent from the fact that the legislature may at any time impose such liability on municipal...