Thayer v. City of Bos.

• Decision Date: 26 June 1837
• Citation: Thayer v. City of Bos., 36 Mass. 511, 19 Pick. 511 (Mass. 1837)
• Parties: RUFUS THAYER et al. v. The City of BOSTON.
• Court: Supreme Judicial Court of Massachusetts

36 Mass. 511

19 Pick. 511

RUFUS THAYER et al. v. The City of BOSTON.

Massachusetts Supreme Judicial Court

OCTOBER TERM 1837

June 26, 1837

An action sounding in tort may be maintained against a municipal corporation.

A municipal corporation may he liable in an action of the case, for an act which would warrant a like action against an individual, provided that such act is done by the authority of the corporation, or of a branch of its government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or that after the act has been done, it has been ratified by the corporation by any similar act of its officers.

As a general rule, a municipal corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii; it must further appear, that the officers were expressly authorized to do the acts, by the corporation, or that they were done bona fide in pursuance of a general authority to act for the corporation, on the subject to which they relate, or that, in either case, they were adopted and ratified by the corporation.

THIS action was argued in connexion with the case of Stetson v. Faxon, ante, p. 147. It was an action on the case, brought by Rufus Thayer and Amasa Stetson.

The declaration contained two counts. The first sets forth, that the plaintiffs are seised in fee, as tenants in common, of a messuage in Boston, bounded southerly on Market square or North Market street, and along and over and by the southerly front of the messuage there long has been, and of right ought now to be, a free and open paved space, public street or passage way to and from the messuage, extending from the westerly end of Dock square along the range of buildings standing in line with the messuage, and running eastwardly to the street called Roebuck alley, which way the plaintiffs, by reason of their seisin and ownership of the messuage, had a right to enjoy; that the defendants, on the 1st of September, 1825, took up the pavement in front of the messuage and range of buildings, and dug up the soil, &c. and erected stalls, benches, &c. on the passage way, and obstructed the communication with the messuage, &c. per quod &c.

The second count avers that the defendants erected ana caused to be erected certain fences, buildings and obstructions in and upon that part of the passage way lying easterly of the messuage and of an alley running by the easterly side of another messuage belonging to Stetson, adjoining the messuage described in the declaration, by means of which this messuage has been obscured and darkened, and access to it obstructed, &c. and also deposited large quantities of earth, bricks, stones, &c. per quod &c.

The defendants pleaded the general issue.

It appeared at the trial, that the removal of the pavement &c. and the depositing of the earth, &c. in front of the plaintiffs' messuage, were acts done by officers of the city, having authority over streets and public lands, and claiming to act by authority of their office, and that the persons employed were paid from the city treasury; and that the erection of the stalls, booths, &c. and the occupation of the land in front of the plaintiffs' messuage, were by persons under permission from officers of the city, claiming authority as such; and that the city received rent therefor, claiming title to the locus in fee.

The defendants objected that this action could not be maintained against them for any of the acts alleged to have been done in the public street in question, because they were performed, not by the city, but by the surveyors of highways and other officers duly authorized by law; and if the officers were not so authorized, they, and not the city, were responsible for their unlawful acts; that the corporation could not be made answerable for any unauthorized trespasses of its officers, and that in fact it was incapable of committing a trespass. But for the purposes of the trial it was ruled, that the defendants were responsible for the acts of the officers of the city.

The jury rendered a verdict in favor of the plaintiffs, in which, by the consent of the parties, the damages were apportioned among the several causes of complaint.

If for any one or more of the causes of action set forth this suit could be maintained against the defendants, judgment was to be entered for the plaintiffs for such sum as the jury assessed for such cause or causes of action; but if the city was not responsible for any of them, the plaintiffs were to be nonsuited.

J. Pickering and C. P. Curtis, for the defendants, cited Riddle v. Locks and Canals &c., 7 Mass. R. 169; Russell v. The Men of Devon, 2 T. R. 667; Mower v. Leicester, 9 Mass. R. 247; Baker v. Boston, 12 Pick. 184, and the New York cases there cited.

Metcalf and C. G. Loring, for the plaintiffs, cited Lynn v. Turner, Cowp. 86; The King v. Bank of England, 2 Doug. 524; Sutton v. Bank of England, Ryan & Moody, 52; 3 Dane's Abr. c. 74, art. 9; Chestnut Hill Turnpike Co. v. Rutter, 4 Serg. & Rawle, 6; Smith v. Birmingham &c. Gas Light Co., 1 Adolph. & Ellis, 526; Yarborough v. Bank of England, 16 East, 6; Clark v. Washington, 12 Wheat. 40; 4 Amer. Jurist, 303.

SHAW C. J. delivered the opinion of the Court. This case, by consent, has been argued in connexion with the case of Stetson v. Faxon pending in Suffolk, and involves many of the same facts, which were presented in that case, and depends, to some extent, upon the same principles.

The passage way lying in front of the plaintiffs' estates and constituting part of what was formerly denominated Dock square, is variously described, in different counts in the declaration, as a passage way appurtenant to these estates, and as a public highway. We are apprehensive that some confusion has been thrown upon ...