City of Fort Worth v. Crawford

Watts, J. Com. App. In reference to the liability of municipal corporations for creating or failing to remove a nuisance, this distinction is to be observed: If the nuisance grows out of acts done exclusively in the interest of the public, such as the improvement of the sanitary condition of the city, then it would only be liable for a careless or negligent execution of the duty. But if the acts [204] out of which the nuisance originated or is continued were done for the private advantage or emolument of the municipal corporation, then, irrespective of the question of negligence, it would be liable for the injuries resulting therefrom. Bailey v. New York, 3 Hill, 531; Oliver v. Worcester, 102 Mass., 489; Pittsburgh v. Grier, 22 Pa. St., 54; Eastman v. Meredith, 36 N. H., 296; Trustees v. Gibbs, 11 H. L. Cases, 687. From the record it appears that the city authorities established this as a place for the deposit and burial of the bodies of dead animals, garbage, excrement, etc., for the purpose of improving and maintaining the sanitary condition of the city. This was done for and in the interest of the public, and not for the private advantage or emolument of the municipal corporation. And it also appears that, in establishing this deposit or burial ground, the city council, by appropriate ordinances, provided that all deposits should be buried in ditches from four to six feet deep, and made it a misdemeanor punishable by fine for any person to violate these ordinances. And some diligence upon the part of the city authorities in the enforcement of these ordinances is shown by the evidence. There is evidence in the "record also to the effect that, if these ordinances had been complied with by parties making deposits upon the designated ground, no injury would have resulted to appellee from the maintenance of that as a place of burial and deposit. Upon the case as made the court instructed the jury that, if the plaintiff in error created and maintained the nuisance, then to find for the defendant in error. This charge does not announce the law applicable to the case made by the evidence. The liability of plaintiff in error depended upon its negligence in the matter, and the court erred in failing to submit that as the test of liability. The other questions are not so presented as to require consideration. Our conclusion is that the judgment ought to be reversed and the cause remanded. Eeveesed ajstd bemanded. [Opinion adopted May 22, 1885.]