setts, cannot be sued for neglect of duty in any case in which the remedy is not given by statute.1 And this view obtains, not only in New England,2 but throughout the country, so far as concerns townships, counties, school districts, road districts, and similar divisions of the state, though they have corporate capacity, and power to levy taxes. At the same time, it is declared by Metcalf, J., when illustrating the Massachusetts law, that the rule is "of limited application. It is applied

in the case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs when a special duty is imposed upon it, with its own consent, express or implied, or a special authority is conferred on it, at its request."5 And the distinction, based as it is on the supposition that a town is a political division of the commonwealth, subsides, as has been seen, when a town, by taking upon itself, at its own request, specific remunerative duties, places itself in the attitude, not of an integral portion of the commonwealth, but of a subordinate business agency.

§ 267. When liable for negligence of servants. - This point has been already independently discussed."

1 Mower v. Leicester, 9 Mass. 247; Bigelow v. Randolph, 14 Gray, 541.

2 See Eastman v. Meredith, 36 N. H. 284, and cases hereafter cited, § 906 et seq.

3 Dillon on Munic. Corpor. 2d ed. § 762; citing Treadwell v. Commis. 11 Ohio St. 190; Hedges v. Madison Co. 1 Gilm. Ill. 567; Freeholders v. Strader, 3 Harr. (N. J.) 108; Van Eppes v. Commis. 25 Ala. 460; Larkin

16

v. Saginaw Co. 11 Mich. 88; Bray v. Wallingford, 20 Connect. 416; Governor v. Justices, &c. 19 Ga. 97; Haygood v. Justices, 20 Ga. 845; Com. v. Brice, 22 Pa. St. 211.

4 Bigelow v. Randolph, 14 Gray, 541.

5 See also remarks of Gray, J., supra, § 250.

6 See supra, § 190-195.

241

CHAPTER VII.

PRIVATE CORPORATIONS.

Charter or license no defence to collateral | Remedies given by charter do not exclude nuisance, § 271. remedies at common law, § 278.

Legislative authority to maintain public Liability for acts of servants, § 279. works and to receive tolis imposes the

duty to keep such works in repair, § 272.

§ 270. PRIVATE corporations are generally subject to the same liabilities for negligence as are individuals. There are, however, several qualifications, peculiar to this branch of the law, which will now be noticed.

§ 271. Charter or license no defence to collateral nuisance.— A license from the state to permit a particular act to be done in a particular way is a defence for doing such act in such a way, even though the result be a nuisance, or a dangerous alteration of a highway.1 But where the work is done negligently, even an approval by the town engineer will be no defence, though the ordinance authorizing the work required that the work should be done to his satisfaction; he not being invested with the power of determining the ultimate question of negligence.2 And generally, a license or charter from the sovereign will be no defence to proceedings for a nuisance when such nuisance is not necessary to the exercise of the power.3

§ 272. Legislative authority to maintain public works and to receive tolls from them, imposes the duty to keep such works in repair. The English law, as stated by Mr. Campbell, is, that

1 Young v. Inhab. of Yarmouth, 9 Gray, 386, a case where it was held that the erection of telegraph poles, as approved by the selectmen of the town, under a general act of the legislature, could not be the basis of a suit against the telegraph company by a person who was injured by driving against one of the poles.

2 Delzell v. Indianapolis, &c. R. R. 32 Ind. 46.

8 Del. Canal Co. v. Com. 60 Penn. St. 367; R. v. Morris, 1 B. & A. 441; State v. Buckley, 5 Harring. 508; Conn. v. Church, 1 Barr, 105; State v. Mulliken, 8 Blackf. 260; Com. v. Reed, 10 Casey, 275; Com. v. Kidder, 107 Mass. 188; People v. N. Y. Gas Light Co. 64 Barb. 55. 4 Negligence, § 17.

where "a person or corporation is by statute intrusted with the making and maintenance of works, and entitled to demand toll for the use of those works, there is then a duty upon that person or corporation to the public (or at least to all persons lawfully using the works),1 to take care that the works are so constructed and maintained with reasonable efficiency for the public purpose for which they are authorized to be made." Thus, in a conspicuous English case,2 the plaintiff sued for damage to a ship and cargo caused by the ship grounding upon a bank of mud at the mouth of the dock. At the trial the Chief Baron Pollock directed the jury that, "if the cause of injury was a bank of mud in the dock, and if the defendants by their servants had the means of knowing the state of the dock, and were negligently ignorant of it, they were liable." A bill of exceptions was tendered to this ruling, and the jury having found for the plaintiffs, the question whether the chief baron's ruling was right in point of law came before the exchequer chamber, and afterwards on appeal to the house of lords. It was argued for the defendants, at the final hearing, that, to establish a case of liability against them, it was not enough that they were proved to have the means of knowledge of the obstruction, unless they were also proved to have actual knowledge of the existence and dangerous nature of the bank. But this defence did not avail. it was held that a body incorporated by statute, with the right to levy tolls for the profit of its members, in consideration of making and maintaining a dock or a canal, is liable in its corporate capacity to make good to the persons using it any damage occasioned by neglect in not keeping the works in proper repair. Nor were the defendants regarded as relieved from liability on the ground that they were not authorized to receive tolls for their own profit, since by the constitution of the corporation the profits of their undertaking were dedicated to the benefit of the public and of the shipping interest using the docks. It was held unanimously by the learned lords present, following the joint opinion of the consulted judges (delivered by Blackburn, J.), that the circum

1 Shoebottom v. Egerton, 18 L. T. (N. S.) 889.

2 Mersey Docks and Harbor Trustees v. Gibbs and others, decided in

And

1865 in the house of lords, on appeal from the court of exchequer chamber. Reported L. R. 1 H. of L. 93.

87 H. & N. 329; 1 H. of L. 93.

stance of the profits being thus ultimately applied to public purposes made no difference.1

§ 273. So in another English case, the defendants had, by act of parliament, the right to construct a canal and take tolls thereon; and had built the same across an ancient highway, having made a swivel bridge across the canal for the passage of the highway. A boatman having opened the swivel bridge to allow his boat to pass through in the night-time, a person walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. "It has been urged," said Pollock, C. B., "that what was done by this Canal Company was done by them under the authority of an act of parliament, passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the statute, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought or doing, in an improper manner, what they are allowed to do." § 274. The same result was reached in a case peared that the trustees of a turnpike road converted an open ditch which used to carry off the water from the road into a covered drain, placing catchpits, with gratings thereon, to enable the water to enter the drain. Owing to the insufficiency of such gratings and catchpits, the water in very wet seasons, instead of *running down the ditch, as it formerly did before the alterations by the trustees, overflowed the road, and made its way into the adjoining land, and injured the colliery of the plaintiff. Upon this it was held, that the trustees were liable for such injury, if 1 Mersey Docks Trustees, &c. v. 2 Manley v. St. Helen's Canal and Gibbs, L. R. 1 H. of L. 93; see also Railway Company, 2 Hurls. & Norm. Coe v. Wise, L. R. 1 Q. B. 711. As 840. to Railway Companies, see Grote v. Chester & Holyhead Ry. Co. 2 Ex. 251; and Virginia, &c. Ry. Co. v. Sanger, 15 Grat. 230.

3 where it ap

3 Whitehouse v. Fellows. 10 Com. B. N. S. 765; 30 L. J. C. P. 305.

they were guilty of negligence in respect of such gratings and catchpits.1

§ 275. So also a corporation having statutory power to maintain and repair the towing-path of a river, and to take tolls therefor, is bound to take reasonable care of the towing-path, so that it may be in a fit condition to be used, and is liable for neglect in the performance of this duty.2 And this results, apart from all other considerations, from the general principle that a person receiving toll for making or repairing a bridge, canal, or thoroughfare of any kind, is liable for defective work. "It (the duty to repair) is a condition attendant upon a grant of the

1 See to same effect Coe v. Wise, Law R. 1 Q. B. 711; Clothier v. Webster, 5 B. & S. 970 (a case of not filling up a trench); Cumberland Valley R. R. v Hughes, 1 Jones (N. C.), 140. Selden, J., in West v. Brockport, 16 N. Y. 161, says: "Whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect." In Bessant v. Great Western Railway Company, 8 C. B. (N. S.) 368, sheep were damaged by straying through a fence which the Railway Company were, by their act, bound to maintain as an accommodation work to a neighboring proprietor. It was held that in such a case the company warrant to the occupier the sufficiency of the fence for all purposes required for good husbandry.

In Coe v. Wise, L. R. 1 Q. B. 711, damage was caused to the plaintiff's land, by the bursting of a sluice through the negligence of the resident engineer and sluice-keeper in the service of the commissioners, a body con

stituted by statute with the duty of making and maintaining the sluice. The commissioners were held liable. "These all seem to be cases," says Mr. Campbell, in his Treatise on Negligence, § 17, "where the question is not merely that of ordinary negligence. In considering the effects of these statutory duties we must, however, consider whether the enactment is conceived in the interest of the public at large, or is merely in the nature of a covenant with the adjoining owners or occupiers. A statutory enactment of the latter class will not ground a remedy in favor of a stranger." Manchester, &c., Railway Company v. Wallis, 14 C. B. 213 (case of cattle straying on a highway adjoining the railroad.) As to how the obligation to maintain fences, &c., may be constituted by award in pursuance of statute see Lockhart v. Irish Northwestern Railway Company, 14 Irish C. L.

385.

2 Winch v. Conservators of the Thames, L. R, 7 C. P. 458; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93.

3 Nichol v. Allen, 1 B. & S. 916; Mayor of Lyme Regis v. Henley, 1 Bing. N. C. 222; 2 Cl. & Fin. 331; Parnaby v. Lancaster Canal Co. 11 Ad. & El. 230; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93.