Oliver v. City of Worcester

The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public.

To render municipal corporations liable to private action* for omission or neglect to perform a corporate duty imposec by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate capacity, an express statute is doubtless necessary. Such is the well settled rule in actions against towns or cities for defects in highways. 5 Edw. IV. 2, pl. 24. Riddle v. Proprietors of Locks & Canals, 7 Mass. 169, 187. Mower v. Leicester, 9 Mass. 247. Holman v. Townsend, 13 Met. 297. Brady v. Lowell, 3 Cush. 121. Providence v. Clapp, 17 How. 161, 167. The same rule has been held to govern an action against a town by a legal voter therein, for an injury suffered while attending a town meeting, from the want of repair in the town-house erected and maintained by the town for municipal *500purposes only; or by a child, attending a public school, for an injury suffered from falling into a dangerous excavation in the school-house yard, the existence of which was known to the town, and which had been dug by order of the selectmen to obtain gravel for the repair of the highways of the town and to make a regular slope from the nearest highway to the schoolhouse. Eastman v. Meredith, 36 N. H. 284. Bigelow v. Randolph, 14 Gray, 541.

But this rule does not exempt towns and cities from the liability to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus where a special charter, accepted by a city or town, or granted at its request, requires it to construct public works, and enables it to assess the expense thereof upon those immediately benefited thereby, or to derive benefit in its own corporate capacity from the use thereof, by way of tolls or otherwise, the city or town is/liable, as any other corporation would be, for any injury done to any person in the negligent exercise of the powers so conferred. Henley v. Lyme, 5 Bing. 91; S. C. 3 B. & Ad. 77; 1 Scott, 29; 1 Bing. N. C. 222 ; 2 Cl. & Fin. 331; 8 Bligh, (N. S.) 690. Weet v. Brockport, 16 N.Y. 161 note. Weightman v. Washington, 1 Black, 39. Nebraska City v. Campbell, 2 Black, 590. Perley, C. J., in Eastman v. Meredith, 36 N. H. 289-294. Metcalf, J., in Bigelow v. Randolph, 14 Gray, 543. Child v. Boston, 4 Allen, 41, 51.

So where a municipal corporation bolds or deals with property as its own, not for the direct and immediate use of the public, but for its own benefit, by receiving rents or otherwise, in the same way as a private owner might, it is liable to the same extent as he would be, for the negligent management thereof to the injury of others. In Thayer v. Boston, 19 Pick. 511, it was held that a city was liable for the acts of its agents, previously authorized or afterwards ratified by the city, in obstructing a highway to the special and peculiar injury of an individual, by erecting buildings under a claim of title in the fee of the land, for which the city received rent. In Anthony v. Adams, 1 Met. 284, cited for the defendant, the town was held not liable, solely *501because the act which occasioned the injury was one which the town had not authorized, and was not required by law to do. In Bailey v. New York, 3 Hill, 531, Chief Justice Nelson clearly stated the distinction between acts done by a city or town as a municipal or public body, exclusively for public purposes, and those done for its own private advantage or emolument; and assumed, as unquestionable, that “ municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers and dealt with accordingly.” In Pittsburgh v. Grier, 22 Penn. State, 54, a city was held liable to a private action for an injury suffered by an individual by reason of a defect in a wharf, of which the city had the exclusive control, and for the use of which it received wharfage. In Eastman v. Meredith, 36 N. H. 295, 296, Chief Justice Perley said, !/ Towns and other municipal corporations, including counties in this state, have power, for certain purposes, to hold and manage property, real and personal; and for private injuries, caused by the improper management of their property, as such, they have been held to the general liability of private corporations a&d natural persons that own and manage the same kind of property.” “ So far as they are the owners and managers of property, there would seem to be no sound reason for exempting them from the general maxim which requires an individual so to use his own that he shall not injure that which belongs to another.” And in Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 687; S. C. Law Rep. 1 H. L. 93; the house of lords, upon an elaborate revision of the English cases, held that the trustees of the docks at Liverpool, incorporated by act of parliament for the purpose of making and maintaining docks and warehouses for the use of the public, with authority to receive rates for such use, which were to be applied exclusively to the maintenance of the docks and warehouses and the payment of the debt incurred in their construction, were liable to an action by an individual for an injury to .lis vessel in entering one of the docks, by striking upon a bank of mud which their servants and agents had negligently suffered to accumulate at and about the entranca.

*502In the case at bar, it appears from the report of the learned judge who presided at the second trial, that the evidence tended to show that the plaintiff, while walking, using due care, upon a footpath which had been used by the public for more than twenty years, and had been laid out and graded from time to time and prepared and cared for by the town and city of Worcester, and was within the public common which had been used by the inhabitants of the town for a much longer period, fell into a deep excavation, made by direction of a joint committee of the city council, under the authority and at the expense of the city, in the course of repairing and improving a building standing within the common, used by the city principally for municipal purposes, but a substantial portion of which, both before and after the time of the accident, the city leased, and received rent for, either from private persons or from the county, and which was therefore held and used by the city, not for municipal purposes exclusively, but in considerable part as a source of revenue; and that this excavation was within a few feet of the building, and was carelessly left unguarded. If, in the course of repairing this building, the servants and agents of the city, acting by its authority, negligently suffered the adjoining land within its control to be in a dangerous condition, without proper notice to persons exposed to the danger, coming there rightfully under an implied invitation and license, and using due care, the city was responsible, as any private owner would be, for an injury sustained by such a person by reason of such negligence; and it is immaterial whether the title in the land was or was not in the defendant. Carleton v. Francoria Iron & Steel Co. 99 Mass. 216. The case should therefore have been submitted to the jury. New trial ordered.