Dermont v. Mayor

By the Court, Willson, J. The argument of the counsel for the plaintiff in error was based- upon the assumption, that the Court charged in substance, that the defendants were not liable for injuries occasioned by their negligence or nnskillfulness in the construction of sewers, so long as they acted in good faith and without malice; and we are clearly of opinion, that the charge is not liable to such construction. The rule is well settled, that to charge a person, or a Corporation, in an action in the case, for negligence in the performance of any public work, whereby any person has sustained any special damage, the law must have imposed a duty, so as to make that neglect culpable. (Esp. N. P. Tit., Trespass on the case; The Mayor, etc., vs. Cunliff, 2 Comst, 165; 1 Chit. Pl., 133.) By the bill of exceptions, it appears that the plaintiff’s private drain from his cellar was connected with and opened into Congress street sewer, and that, in consequence of the improper connection of that sewer with the sewer on Woodward avenue, the water set back irom the sdvvtr into the — 442 — plaintiff’s drain, by which his cellar was flooded, and the damage complained of ensued. The fact that the damage complained of happened wholly from the private drain being connected with the public sewer, must have an important bearing in determining the rights and liabilities of these parties. The hill of exceptions also shows, that the plaintiff paid the defendants a yearly sum for the privilege of thus connecting his drain with the public sewer. Such a state of facts naturally suggests two questions for onr determination. 2<rirst. "Would the defendants have been liable had nothing been paid by the plaintiff for the privilege or license thus granted ? and, secondly. Does the payment made create a liability, if none before existed? In regard to the first question, we think it very clear that the defendant cannot be made liable upon any principle of law, whether as applied to Municipal Corporations or individuals. The powers granted to Municipal Corporations for the laying out and making of highways, and for opening and grading streets, and the construction of sewers, involve the bxercise of discretion on the part of the municipal authorities, and should he employed for the benefit of the public at large, and not for the private convenience or advantage of individuals ; nor are the officers of a Municipal Corporation justified in the exercise of those powers, except in reference to the public demands. The sewers are built as well for sanitary purposes as for drainage for the benefit and advantage of the public at large ; and the city owes no legal duty or obligation to individuals in their contsruction, maintenance or repair. As was well said on the argument, the sewers are built by general tax; not for any particular individual, hut for the general welfare ; not with the view, perhaps, of any perfect good to any one, but of the greatest good to the greatest number. The law is well settled, in. this country; and in England, — 443 — tbat towns and boroughs are not liable to individuals for defects in their roads or bridges, except by some statute; and it is obvious that the powers granted to and exercised by the defendants in laying out streets and constructing sewers, are identical with those of Highway Commissioners in establishing highways and building bridges. It is manifest then', we think, that the defendants are not liable at the suit of a private individual for damages arising from the insufficiency or defective construction of its public sewers, when such damages result directly to the party injured from his use and occupation of the same, for his private advantage and convenience. Any other doctrine would lead to the unwarantable conclusion, that Municipal Corporations in their public works were not bound to act solely in reference to the public good, but in reference to individual convenience. Had the plaintiff’s damage happened directly in consequence of the defendants’ want of prudence or skill in the construction of their .sewers, instead of by reason of his private drain being connected with the sewer, the case would have merited a very different consideration. Or had it occurred in consequence of the imprudent and unskillful construction of the Congress street sewer with the Woodward avenue sewer, or if from the want of capacity of the sewer the water had flooded the plaintiff’s cellar, by flowing up through the apertures from the surface, instead of flowing back through his private drain, made by himself for his own private convenience, a very different question from the present would have been presented., A different conclusion would impose upon the city the obligation to furnish private drainage for individuals; and the question presented to its officers would not be, what the public exigencies demanded in reference to its capacitj1', but how they might best discharge its legal obligations to individuals. We believe that no different rule applies to a Municipal Corporation in the construction of its public works and within the scope .of its authorized — 444 — powers, than would attach to an individual doing a lawful act on his own land ; and no one, we think, would contend that, if A should dig a drain on his own land (however careless and unskillful he might have been in doing the work), and permit B to connect his drain with it, and in consequence of which connection the land of B is overflowed, A would be liable to him in damages. ' Such a proposition could not be entertained for one moment. To hold then, in this case, that the Corporation assumed some legal duty, or obligation, because they permitted the plaintiff to drain into"the public sewer, would, upon principle, impose a liability upon the individual in the case supposed. We conclude, then, that as the plaintiff’s damages accrued by reason of his private drain, made by himself for his private convenience, the defendants are not liable unless made so by the payment of the sum annually, for the privilege of draining into the public sevter; and the question of negligence or unskillfulness in the defendants, upon the case presented, is immaterial. Seeondh/: Does the payment of the sum required by the ordinance create a liability, if none before existed ? If the payment by plaintiff imposed any legal obligation on the part of the defendants, it must be on the ground of an express or implied undertaking of the defendants to furnish ample drainage for bis premises. From the case presented, such an undertaking was manifestly not contemplated by the parties ; but that the sum paid was for the license or permission, and not for any express or implied obligation assumed by the defendants. No express contract is claimed, and we are at a loss to know upon what principle the Court could imply one. And, if it be implied in this case, why not in any case of license or joermission granted for a consideration ? Why not as well, in case A permits B to use his private way for a consideration, imply that A thereby undertakes to indemnify B for any loss or damage suffered in consequence of — 445 — such private way being out of repair? If we can imply, from the payment made to the defendants, an undertaking on their part, what are we to presume to be its terms and conditions, and the several duties imposed on the parties? But, even suppose the defendants had made an express contract with the plaintiff to guaranty to him perfect drainage for the sum paid, it would, not avail the plaintiff' in this or any other action brought for its breach; because it would clearly exceed the powers of the Common Council, and therefore would not be binding on the defendants. The Common Council would manifestly have as much right to insure against damages by fire, as against damages by water. Their acts and contracts are only binding on the city when they keep within the scope of their authority; and no such authority is conferred by their charter. A Corporation and an individual, in regard to the power of making contracts, stand upon a very different footing. The latter existing for the general good of society, may do all acts, and make all contracts, which ai*e not, .in the eye of the law, inconsistent with the great purpose of his creation; whereas, the former, having been created for the specific purpose, not only can make no contract forbidden by its charter, which is, as it were, the law of its nature, but in general can make no contract which is not neeessary, either directly or incidentally, to enable it to answer that purpose. Hence, where a Company was incorporated for the purpose of establishing and conducting a line or lines of steamboats, vessels and stages, or other carriages for the conveyance of. passengers between certain places, a contract by such Company, for the breaking of ice and towing of vessels through the track broken, to another place, is invalid, and cannot be enforced. Nor is a Corporation, in such case, where an action is brought against them on contract, estopped from denying their competency to make the contract; for if so, the estoppel would — 446 — apply equally to the other contracting party, and the limitations upon the power of the Corporation would be of no avail. (Angell & Ames on Corp., § 256; 8 Gill & Johnson, 248.) We are, therefore, clearly of opinion, that there is no error in the record, and the judgment of the Coui’t below must be affirmed, with costs. Present, Willson, Green, Bacon, Copeland, and Johnson, J. J. ,