Parsons v. The Mayor

• Decision Date: 31 August 1849
• Docket Number: N0. 39.
• Citation: 7 Ga. 200
• Court: Georgia Supreme Court
• Parties: Bishop & Parsons, plaintiffs in error. vs. The Mayor and City Council of Macon, defendants.

7 Ga. 200

Bishop & Parsons, plaintiffs in error. vs. The Mayor and City Council of Macon, defendants.

N0. 39.

Supreme Court of the State of Georgia

AUGUST TERM, 1849.

Motion for new trial. Bibb Superior Court. Heard before Judge Floyd, January Term, 1849.

This was an action on the case, brought by the plaintiff in error against the defendants in error, for the recovery of $1,378 14. The declaration sets forth, that on the 20th day of August, 1844, the plaintiffs were in possession of divers goods, wares and merchandise, tools and other implements used in the tinware manufacture, of the value of $1,378 14; that on the day and year aforesaid, a fire broke out in the city of Macon, in a tenement in the vicinity of the one occupied by the plaintiffs, but that plaintiffs would have succeeded in removing all their goods, wares and merchandise to a place of safety, had not the Mayor and Council of the city of Macon caused divers kegs of powder to be deposited in the cellar and under the tenement occupied by the plaintiffs, long before it became necessary so to do, for the purpose of blowing up the building, to arrest the fire; that in consequence of the depositing the powder as aforesaid, the agents, servants, hirelings, and all other persons assisting plaintiffs in the removal of their goods, wares and merchandise, &c. were hindered and prevented from saving the same; and that the same were wholly consumed and burnt during the progress of the fire.

The defendants filed the plea of the general issue.

The cause came on to be tried on the appeal, at May Term, 1847.

The Jury returned a verdict in favor of the plaintiffs for five dollars and costs of suit.

Whereupon counsel for plaintiffs moved the Court for a new trial, on the grounds,

1st. Because the finding was contrary to the charge of the Court.

2. Because it was contrary to law.

3d. Because it was contrary to evidence.

The motion for a new trial was heard and overruled by Judge Floyd, at January Term, 1849, on the ground that this was not such a case of damages as would authorize the Court to grant a new trial.

To which decision of the Court counsel for plaintiffs excepted, and assigned error.

Hines and Gresham, for plaintiffs in error.

Poe, for defendants.

By the Court.— Lumpkin, J., delivering the opinion.

I shall not undertake to discuss the many grave questions which naturally arise upon this record. I shall assume, however,

1st. That it is now well settled, that in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity, the private property of an individual may be lawfully taken, and used or destroyed for the relief, protection or safety of the many. And in all such cases—while the agents of the public who officiate are protected from individual liability, the sufferers are nevertheless entitled, under the Constitution, to just compensation from the public for the loss. If the public necessity exists, and of this the constituted authorities are to judge, no trespass or wrong has been committed. 17 Wend.285. 18 lb. 126.

2dly. It is equally evident on the other hand, that if the private property of an individual, the whole or a part of which might otherwise have been saved to the owner, is taken or destroyed for the benefit of the public, or of the inhabitants of a particular county, city, town, or other smaller section of the community, those for whose supposed benefit the sacrifice was made, ought, in equity and justice, to make good the loss which the individual has sustained for the common advantage of all. And there is an implied assumpsit or undertaking on the part of the public, that adequate remuneration shall be made. Ib.

3dly. Where the same extent of loss or injury would have been sustained by the individual, as the necessary consequence ofthe fire or other public calamity, if his property had not been thus taken or destroyed for the protection of others, he would hardly seem entitled to compensation. For in such case, although others have been benefited, he has in fact sustained no damage, lb.

But passing by these questions, I shall confine myself strictly, and within the narrowest limits, to the single point in the case.

It seems that, during the fire which occurred in the city of Macon, on the night of the 20th of August, 1844, the plaintiffs were...