Boye v. City of Albert Lea

MITCHELL, J. The allegations of the complaint are that the defendant city, without right to do so, has caused to be constructed and maintained within its corporate limits a. dam across the waters of Shell Bock river, a natural and unnavigable stream, by means of which the waters of the river were so stopped and set back as to overflow plaintiff’s land, to his damage. By its charter the defendant is granted power “to regulate and control the flowage of the waters of Fountain Lake in said city.” Sp. Laws 1889, c. 10, sube. 4, § 5, subd. 50 (p. 314). This is a public act, which need not be pleaded. Fountain Lake is a part of Shell Bock river, being formed by damming the stream.' The defendant demurred to the complaint on the ground that it did not state a cause of action. The contention of its counsel is that the tort alleged is not one which the city as a municipality could commit under any circumstances; in other words, that it was wholly ultra vires, and hence that the city was not liable. Municipal corporations, in the execution of their corporate powers, fall within the rule of respondeat superior when the requisite elements of liability co-exist. To create such liability it is fundamentally necessary that the act done which is injurious to others must be within the scope of the corporate powers as prescribed by the charter; in other words, it must not be ultra vires in the sense that it is not within the power or authority of the corporation to act in reference to it under any circumstances. If the act complained of lies wholly outside of the general or special powers of the corporation as conferred by its charter, the corporation can, in no event, be liable for the acts of its officers, for a corporation cannot be impliedly liable to a greater extent than it could make itself liable by express corporate vote or action. But if the wrpngful act be not, in this sense, ultra vires, but is within the general scope of the powers of the municipality, and was so done in the execution of corporate powers of a ministerial nature, but in an [234] improper and unlawful manner, as to injure others, it may be the foundation of an action in tort against the corporation. 2 Dillon, Mun. Corp. § 968. In this case it not only does not appear that the act complained of was ultra vires, in the sense above stated, but, on the contrary, it affirmatively appears from the complaint, read in connection with the city charter, that the act was done by the city in the execution of its corporate powers, to wit, the regulation and control of the flowage of the waters of Fountain Lake, but in such a negligent or unlawful way as to injure the plaintiff by overflowing his land. We use the term “corporate powers” to distinguish them from those public services not peculiarly local or corporate imposed by statute on municipal officers, but in which the corporation, as such, has no interest except as a part of the general public. Our conclusion is that the complaint states a cause of action. Judgment reversed.