Smith v. Simmons

• Decision Date: 16 April 1883
• Citation: 103 Pa. 32
• Parties: Smith <I>versus</I> Simmons.
• Court: Pennsylvania Supreme Court

103 Pa. 32

Smith versus Simmons.

Supreme Court of Pennsylvania.

March 14, 1883.

April 16, 1883.

March 14th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Susquehanna county: Of January Term 1883, No. 262.

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Blakeslee (Davies and W. M. Post with him), for plaintiff in error.—The borough council had power to license the temporary use of the street for a necessary or reasonable private purpose, such as the laying of a pipe for conveying water for domestic use, and the act of the defendant and his contractor, in pursuance of such license, was not a nuisance per se. Such act would not have been a nuisance at common law: Commonwealth v. Passmore, 1 S. & R. 217; Philadelphia v. Collins, 18 P. F. S. 106. The contractor was, in this case, exercising an independent employment, and the defendant is not liable for damages caused by the negligence of the contractor or his servants in doing the work: Blake v. Ferris, 5 N. Y. 48; cited and approved in Painter v. The Mayor, 10 Wr. 221. The case of Chicago v. Robbins, relied on by the other side in the court below, is criticised in Painter v. The Mayor, and the doctrine on which it is founded said to be exploded. See also, 1 Thompson on Negligence 355; Homan v. Stanley, 16 P. F. S. 464.

McCollum (Watson with him), for the defendant in error. —A borough council has no authority under the law to grant permission to a private citizen for his own private benefit to commit a nuisance in a public street. It was not error in the court to term a dangerous opening in a frequented street a public nuisance: Beatty v. Gilmore, 4 Harris 463; Homan v. Stanley, 16 Smith 464.

Mr. Justice GORDON delivered the opinion of the court, April 16th 1883.

This case presents two main questions for our consideration and resolution, and these being determined, all others raised by the assignments may be passed as of minor consequence. Was the digging of the ditch in the public street of the borough of Susquehanna a nuisance per se? If not, if it was such a necessary work as was properly licensable by the borough council, then, as the second question, was the defendant chargeable with the negligence of his contractor who had charge of the work? It is certainly true, that if the premise assumed by the court below be correct, the conclusion adopted by it follows as a matter of course. If the ditch dug for and at the instance of Dr. Smith was a public nuisance, then he and all engaged in sinking it were responsible for all damages resulting from it, and the doctrine of respondeat superior is out of the case. But we do not think it was per se a nuisance; such a work that the borough council had no power to permit. This ditch was dug for the purpose of laying a pipe for the conveyance of water from a spring to one of the defendant's houses on Willow street. Water is one of those prime necessaries without which people cannot live, and the public streets of towns and cities have, from time immemorial, been used as a means for its production or conveyance. Formerly it was very common for the citizens of the various municipalities to sink wells for this purpose on the public thoroughfares, and this, as was said by Chief Justice GIBSON, in Barter v. Commonwealth, 3 P. & W. 253, was by sufferance, and in subjection to the corporate franchise. In these days, when water-works are common to all the larger towns, pipes are laid in the streets from which the water supply is drawn both for public and private uses, and although the right thus to lay pipes is usually accorded to a corporation, it by no means follows that it might not be done by private...