Weed v. Borough of Greenwich

Pardee, J. In 1864 the legislature gave certain additional powers and privileges to the then existing borough of Greenwich by virtue of an amendment of its charter, which .was accepted by the corporation and was in the following words: “ The warden and burgesses are hereby authorized to direct the proprietors of lands fronting any street, highway, public walk or ground, to set out and straighten- his, her or their fences in such manner as said warden and burgesses may direct; and said warden and burgesses are hereby empowered, from time to time, to order the removal of all nuisances within the limits of the said borough, and all incumbrances, encroachments or obstructions erected, placed, laid, left, deposited or continued upon any highway, walk, or public ground in said borough; and the person or persons committing or continuing, erecting, placing, laying, leaving or depositing any such nuisances, encroachments or obstructions, -shall — 182 — remove the same upon being notified of such order; and in case such person or persons so committing or continuing, erecting, placing, laying, leaving or depositing any such nuisances, encroachments or obstructions as aforesaid, shall fail to remove the same upon being ordered so to do as aforesaid, then said warden and burgesses shall remove or cause to be removed all such nuisances, incumbrances, encroachments or obstructions; and said borough shall recover the expense of such removal from said person or persons so committing, continuing, erecting, placing, laying, leaving or depositing such nuisances, encroachments, incumbrances and obstructions as aforesaid.” In April, 1871, the warden, acting in his official capacity and pursuant to votes theretofore passed by the court of wardens and burgesses under the grant of power in said amendment relative to the removal of encroachments upon the highways within the borough, took down the fence standing along the front line of a lot belonging to the plaintiff; thereupon he instituted this action of trespass against the borough; and the finding is that the fence, not being an encroachment, was unlawfully removed. The court rendered judgment for the defendants; the plaintiff filed a motion in error. The governmental duty to keep highways within its limits in good and sufficient repair for public use is not placed upon the borough, but upon the town of Greenwich, which includes the former; but, for the purpose of enabling the borough at its pleasure to improve the appearance of the streets, and thus enhance the value of property within its limits, it asked for and received power to remove an encroaching fence, irrespective of the question whether or not in fact it constituted an obstruction to public travel. The corporation had legislar ive .permission to do such an act for its own advantage; it was under no legislative command to do it for the public safety. The court of warden and burgesses constitutes the borough legislature; to this court the accepted charter granted power to take action for the corporation upon the general subject of — 183 — encroachments, to which the particular act complained of relates; they exercised all the powers of the borough in this behalf, and in respect to all external relations must be considered as identical with the corporation; although the grant is in form to the warden and burgesses it is in reality to the borough, to be exercised for its benefit; acting at their pleasure, presumably they acted only when the special interests of the borough were tó be promoted; they wore not elected by the corporation in obedience to any statute, for the purpose of performing a governmental duty. Thus representing and acting for the borough they ordered the removal of the fence, and the borough should redress the wrong occasioned by the performance of an act in its particular interest, for municipal immunity does not reach beyond governmental duty. It is contrary to all principles of natural justice that the residents within certain territorial limits should seek for and obtain corporate powers for the more ready accomplishment of undertakings specially advantageous to themselves, but not at all necessary for the public, and in such powers find relief for responsibility for wrongs upon private rights. In the case before us, the warden and burgesses believed that the fence stood upon the highway and that they had the right to remove it; apparently the warden came to the execution of their mandate clothed with official authority and power, not intending any injury. In all like cases it is best for those concerned that the individual should respect that authority and submit to the exercise of it, having knowledge that if he can prove that he has suffered any wrong he can look to a responsible corporation rather than to an irresponsible individual for damages. In support of the conclusion reached by us we quote some expressions of judicial opinion in this and other jurisdictions, remarking that some of them reach beyond the necessities of the case before us. In Danbury & Norwalk Railroad Co. v. Town of Norwalk, 37 Conn., 109, the respondent town proposed so to construct a sewer, necessary for the drainage of a highway, as to dis-. charge water upon a building belonging to the petitioner. — 184 — This court advised, a permanent injunction, saying: “Upon the general question of the authority and duty of towns with respect to the proper maintenance of their highways there is no opportunity for controversy. The authority is clear and the duty imperative; always subject however to the salutary qualification, interposed for the protection of others, that this authority shall be so exercised, and this duty discharged in such a manner, as to occasion no wanton injury to the property or rights of other persons, natural or artificial. The question whether such a corporation as the respondent, in consequence of any immunity inherent in its municipal character, is exempt from those liabilities for malfeasance for which individuals and private corporations would be liable in a civil action by the party injured,"is no longer an open one. The acts of the character of those now in question involved in the necessary performance of a duty prescribed by a municipal ordinance are strictly ministerial, and when performed by an officer or agent by direction and for the benefit of the' corporation, no exemption from liability by the principal can be interposed, when from negligence or wilfulness they are so performed as to produce unnecessary damage to other parties.” In Thayer v. City of Boston, 19 Pick., 511, the officers of the defendant city had obstructed the plaintiff’s access to the street by the erection therein of stalls along the front of his premises; for this he brought his action on the case against the city; the latter pressed upon the court the argument that, if the officers of the corporation within their respective spheres act lawfully and within the scope of their authority, their acts must be deemed-justifiable, and nobody is liable for damages, and if any individual sustains loss by the exercise of such lawful authority it is damnum absque injurid. But if they do not act within the scope of their authority, they act in the manner which the corporation have not authorized, and in tiiat case the officers are personally responsible for such unlawful and unauthorized acts. Shaw, C. J., said: “But the court are of opinion that this argument, if pressed to all its consequences and made the foundation of an inflexible — 185 — practical rule, would often lead to very unjust results. There is a large class of cases in which the rights both of the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done whether it is lawful or not. The event of a legal inquiry in a court of justice may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time, if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature of the duties and functions with which they are charged by their offices, to act upon the general subject matter, and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage, reason and justice obviously require that the city in its corporate capacity should be liable to make good the damage sustained by an individual in consequence of the acts thus done. It would be equally injurious to the individual sustaining damage, and to the agents and persons employed by the city government, to leave the party injured no means of redress except against agents employed, and by what at the time appeared to be competent authority, to do the acts complained of, but which are proved to be unauthorized by law. And it may-be added, that it would be injurious to the city itself in its corporate capacity, by paralyzing the energies of those charged with the duty of taking care of its most important rights, inasmuch as all agents, officers and subordinate persons might well refuse to act under the direction of its government in all cases where the act should be merely complained of and resisted by any individual as unlawful, on whatever weak pretence; and conformably to the principle relied on, no obligation of indemnity could avail them. The court are therefore of opinion that the city of Boston may be liable in an action on the case, where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the city government, or of those branches of the city government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or where, after the act has been done, it has — 186 — been ratified by the corporation, by any similar act of its officers.” This decision received the approval of the Supreme Court of the United States in Barnes v. District of Columbia, 1 Otto, 540. In Hildreth v. City of Lowell, 11 Gray, 349, the officers of the city entered the plaintiff’s close for the purpose of constructing a sewer, without giving to him such previous notice as the city ordinances required; for this act he sued the city. The court said: “There is no doubt that an action of tort may be maintained against a town or city to recover damages for a trespass committed by any of its agents or officers acting under its authority or in pursuance of directions given them, upon the property or'estate of another party;” and cites Thayer v. City of Boston approvingly. In Hawks v. Charlemont, 107 Mass., 414, the selectmen entered the close of the plaintiff and took stone for repairing a bridge, and thereby exposed the land to be washed and damaged by a river. The court said: “ It is manifest that the acts of the selectmen were tortious, and if they wére done by the authority of the town an action of tort will lie against the town. Where officers of a town acting as its agents do a tortious act with an honest view to obtain for the public some lawful benefit or advantage, reason and justice require’ that the town in its corporate capacity should be liable to make good the damage sustained by an individual in conser quence of the acts thus done.” In the case of Lee v. Village of Sandy Hill, 40 N. York, 442, the charter of the village provided that its officers should be five trustees, and that such trustees should be commissioners of highways of the village, and have the same powers and be subject to the same duties as to the roads of the village as commissioners of highways in towns. Under a written resolution and order of such trustees the overseer of highways wrongfully entered upon the land of the plaintiff and moved back a fence erected by him in front of his lot, the trustees in making the order acting in good faith, erroneously supposing the plaintiff’s fence was an encroachment.upon the street, and that they were proceeding in pursuance of the authority — 187 — conferred upon them by the charter. The court held that to render a municipal corporation liable for the tortious acts of their servants and officers, it is enough that it should appear, either that they were expressly authorized by such corporation, or that they were done bond fide in pursuance of a general authority to act for the corporation on the subject in relation to which they were performed; and that the plaintiff could maintain trespass against the village for such removal, whether the trustees were to be regarded as mere agents of the corporation or it was deemed an act of the corporation itself. In Buffalo & Hamburgh Turnpike Co. v. City of Buffalo, 58 N. York, 639, the city in making certain changes in one of its highways injured a bridge belonging to the plaintiff; the court held that a municipal corporation is liable for the tortious acts of its agent, where it appears that the agent was expressly authorized to do the acts, or that they were done in good faith, in pursuance of a general authority to act for the corporation on the subject to which they relate. In Sheldon v. Kalamazoo, 24 Mich., 383, the president and trustees of the village directed the committee on streets to notify the plaintiff that his front fence encroached upon the highway and that he must remove it; this he refused to do, and the marshal removed it upon the order of the committee. The court below refused to hear evidence that the plaintiff’s fence stood upon the line, for the reason that the president and trustees acted in the capacity of public officers and not municipal agents, and that the corporation is not liable for their acts in the premises. In granting a new trial the Supreme Court said: “The doctrine is entirely untenable that there can be no municipal liability for unlawful acts done by municipal authorities to the prejudice of private persons. In this respect public corporations are as distinctly legal persons as private corporations.” In Crossett v. City of Janesville, 28 Wisconsin, 421, the city entered upon-the plaintiff’s lot and began to construct a highway over it without compliance with the terms of its charter, which provided that no street should be graded with — 188 — out a recommendation in writing signed by a majority of the resident owners of property situated thereon. The court held that the city was liable to the plaintiff for injury to his lot from the grading of a street by order of the council without such a recommendation. In Soulard v. City of St. Louis, 36 Missouri, 546, the corporation opened a street through the land of the plaintiff without first having the land condemned and damages assessed in the manner provided by its charter. The court said: “Accordingly it has been held that a municipal corporation will be liable where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the city government invested with jurisdiction to act for .the corporation upon the subject to which the particular act relates, or where after the act has been done it has been ratified by the corporation.” In Allen v. City of Decatur, 23 Illinois, 332, the city council by resolution directed the city supervisor to open a street across the plaintiff’s lot without authority of law. The court said: “We shall in this opinion devote our attention to the principal question which has been argued in the case, which is, whether a municipal corporation can be sued in an action of trespass for acts done in obedience to an order of the corporation. The law is now so well settled that it is nowhere controverted that such coi’porations may be sued in case for tortious acts done under the instructions of such corporations.” In Woodcock v. City of Calais, 66 Maine, 234, the city government of Calais passed an order “that the street commissioner be directed to cause all fences now on the public streets to be removed.” The street commissioner 'employed a surveyor to run a line between the plaintiff’s land and the street. The line, as run, proved to be outside of the street limits and upon the plaintiff’s land. The commissioner, believing the line to be correctly ascertained, moved back the plaintiff’s fence in accordance therewith, removed from the plaintiff’s land earth and rocks, and built a side-walk thereon. The court, in holding that the principle of respondeat superior applied, and that the city was liable to the plaintiff in trespass for the damages, said that the fact that the street commis — 189 — sioner “was expressly directed by the city government to cause all fences on the street to be removed, and that while attempting to follow these directions ho committed the trespass which is the foundation of this action, withdraws this case from the application of the principle applicable to cases of public officers. For, while he was a public officer, and had lawful authority to act in the premises without any directions from the city, still the city was responsible for the safe condition of the streets, and chose by positive, formal vote to direct the commissioner. Whether he was obliged to follow the direction or not is immaterial. He did act, and in his action he became quoad hoe the city’s agent; and we are of the opinion that the superior must respond.” In Cumberland & Oxford Canal Co. v. City of Portland, 62 Maine, 504, which was an action on the case for obstructing the plaintiff’s canal, the court said that “ the declaration avers, and therefore the demurrer admits, that the city of Portland did the acts complained of. Those acts are primd fade acts of trespass. No, justification or excuse being shown, the plaintiffs are entitled to judgment.” In Inman v. Tripp, Treasurer of the City of Providence, 11 R. Island, 520, an action upon the case for discharging surface water upon the land of the plaintiff, the court, in holding that “ the doctrine that a municipality cannot be held liable for the consequences of an act which is legally authorized or is required to perform, will not justify an invasion of private property, even if the invasion is only consequential,” said: — ■ “ The plaintiff’s property has been invaded, and the question is whether he is entitled to any remedy against the city for the invasion. There are cases which hold or seem to hold that no action lies against the city even for such an injury. The ground of these decisions is that a city cannot be answerable at law for the consequences of an act which it is legally authorized or required to perform. But we think this doctrine, the abstract truth of which cannot well be gainsaid, is misapplied when it is held to sanction an invasion of private property, even though the invasion is only consequential.” In Ashley v. Port Huron, 35 Mich., 296, Cooley, C. J., says, that “ it is very manifest from this reference to authori — 190 — ties that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by a corporate apt .which is in the nature of a 'trespass upon him. The right of an individual to the. occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a pi’ivate individual. If the corporation s&nd people with 'picks and spades to cut a street through it Avithout first acquiring the right of way, it is liable for a tort.” In Rowe v. City of Portsmouth, 56 N. Hamp., 291, the court said that the question whether municipal corporations in this country, and corporations in England having some of the powers and charged with some of the duties usually exercised by municipal corporations here, are liable for negligence, carelessness or misfeasance, both in the performance of their legal duties and the doing of voluntary acts within the scope of their authority, has been much considered by the courts on both sides of the Atlantic; and the decided weight of modern' authority is, that in this respect they stand like private individuals or corporations.” In City of Chicago v. McGraw, 75 Illinois, 566, the court says: “That an action of trespass lies, in a proper case, against a municipal corporation, is not an open question in this court. * * But to render it liable in any case for torts committed by persons claiming to act for it, or by its authority, it must appear that they were expressly authorized to do the acts by the municipal government, or that they were done bond fide in pursuance of a general authority to act for the municipality on the subject to Avhich they relate; or that, in either case, the act was adopted and ratified by the corporation. Thayer v. City of Boston, 19 Met., 571.” There is error in the judgment complained of. The Superior Court should render judgment for the plaintiff to recover of the defendants the sum of one hundred dollars damages and his costs. In this opinion Carpenter and Granger, Js., concurred; Park, C. J., and Hovey, J., dissented.