Ely v. City of Rochester

By the Court, Johnson, P. J. Neither the right of the public to a passage over the Genesee river, by means of a bridge, nor the right of the city, in its corporate character, to construct a bridge at the point where the bridge is about to be constructed, is denied, or in any manner drawn in question by the complaint. Indeed it appears plainly, on the face of the complaint, that the defendants are only proceeding to rebuild, upon the same site on which a bridge has been maintained and used, as a highway or public thoroughfare, for a great number of years past. The action is not to prevent the construction of a bridge, but only to restrain its construction upon the plan adopted. It is the plan, and not the structure [136] upon some other plan, which is complained of, and sought to be defeated. The ground of complaint, and of the action, is simply that the bridge, if constructed upon the present plan, will, when completed, cause an addition to the back water upon the plaintiffs' mills, in periods of high water, and occasion a detention of their mills, longer than they would otherwise be detained from that cause, and thus produce injury and damage to the plaintiffs for an indefinite period. The injury apprehended is to be occasional, and temporary only in duration, when it shall occur. This presents the question whether the law, for such an injury from such a cause, gives the injured party any right of action. The right which the defendants assume to exercise in the acts complained of, is manifestly that of eminent domain, which is necessarily conferred upon municipal corporations for such purposes. (Angell on Corp. § 457.) It is exercised in this instance, not in taking private property for public use, but in repairing, improving and fitting, for a safer and more convenient public use, that which has already and long since been taken. The power to do the act, where no limitation, is placed upon it by the sovereign authority by which it is granted, necessarily includes the right of determining upon the plan and mode of doing it. The material to be used, the • architectural design in reference- to cost, solidity, duration and convenience, are all within - the exclusive jurisdiction and control of the officers in whom the power is vested. If the right should be conceded to the plaintiffs, of interposing by action, to prevent the erection on the present plan, some other person might, for a similar reason, prevent the construction of another on the plan proposed by the plaintiffs, and the result might be that the public would be deprived, wholly, of the enjoyment of an indisputable and essential privilege. There is no pretense that the plan adopted is not, in every respect, suitable and proper for the bridge,, as respects the public interests and convenience. All that is claimed in this [137] respect is, that another plan might he adopted and carried out, with less prejudice to the interests of the plaintiffs. I am clearly of the opinion that the law affords to the plaintiffs no right of action in such a case. It is an established maxim that no action will lie for the consequences of an act done under lawful authority, if proper care and still are exercised in per- , forming such act. It will" scarcely be pretended, I think, that this action can be maintained, if the plaintiffs could maintain none for the injury after the bridge was completed. And that none could be maintained in that case, for such a cause, seems to me extremely clear. The case falls exactly within the principle which has been repeatedly and uniformly applied to the opening and grading of streets, and the. alteration, repairing and improvement of those already opened. The authority which the defendants are attempting to exercise is of a public nature, and for the interests, necessities and convenience of the public, and being lawful in its character, all private rights and interests are to a certain extent subordinate to it. The injury, if any, resulting to individual rights, from such acts, is damnum absque injuria, for which no action lies. [Monroe General Term, December 7,1857. The rule established in Wilson v. The Mayor &c. of New York, (1 Denio, 595,) Radcliff’s Ex’rs v. The Mayor &c. of Brooklyn, (4 Comst. 195,) Graves v. Otis, (2 Hill, 466,) Boulton v. Crowther, (2 Barn. & Cress. 703,) Plate Glass Co. v. Meredith, (4 T. R. 794,) is decisive of this action. It is unnecessaiy to notice the other questions raised. Order affirmed with costs. Johnson,, 1. R. Strong and Welles, Justices.]