Goodloe v. City of Cincinnati.

tionate part of that valuation, the money must be paid to the sheriff, and the sale must be confirmed by the court, and a deed ordered to the purchaser. Section 4 provides that the proceedings shall not "affect the right of any person or persons who may set up any claim to such mortgaged premises, by purchase from or under the mortgagor, or otherwise, and which claim, in law, shall be paramount to the claim of such mortgagee." There seems no ground of doubt but that the legislature, when they made this provision, intended that interests not paramount to that of the mortgagee, such as interests subsequently derived from the mortgagor, should be concluded by the proceedings on the scire facias. We think these two sections, taken together, must be so interpreted as to place the purchaser, at sheriff's sale, under the judgment on the mortgage, in the position occupied by the mortgagor when the mortgage was executed. Any other construction would convert the judicial proceedings authorized by the *law, into a means of practicing fraud on the purchaser. It [500 would discourage bidders at sheriff's sales, lessen public confidence in titles held under sheriff's deeds, and prevent the improvement of lands so held. This seems to have been the construction of the Pennsylvania courts upon a law of similar import. And the same construction appears to have prévailed the Ohio. This is the first bill we recollect filed by a subsequent purchaser from the mortgagor, to be let in to redeem, against a purchaser at sheriff's sale, under a previous mortgage. Had such bills been thought maintainable, we should have heard of them before. The bill must be dismissed.

JAMES GOODLOE v. CITY OF CINCINNATI.

When the corporation of a town acts illegally and maliciously, to the prejudice of an individual, an action on the case, for damages, may be sustained against such corporation.

THIS cause was adjourned here for decision, by the Supreme Court of Hamilton county. It was an action on the case, for an injury done to the real estate of the plaintiff.

The declaration states that the plaintiff, prior to the injuries received, was seized and possessed of a lot of land (describing it by

Goodloe v. City of Cincinnati.

number), and a brick house thereon, situated on the north side of Water street, in the said city; that he, the plaintiff, had expended large sums of money in erecting the walls of his said house, in placing a cellar under the same, in fitting and accommodating the doors, windows, cellar, and every part of his said house for the convenience and accommodation of himself and family as a place of residence; and for the same purpose, and at like expense, had paved the said street and side-ways thereof, next to and adjoining his said dwelling, as well for the accommodation of his said family, as for the convenience and accommodation of those with whom they held intercourse. To make the said conveniences com. plete, and render the house valuable for the purposes intended, its doors, walls, windows, ways, walks, etc., were all finished with an express view to the level and grade of said Water street, as pre501] viously made by the defendants. That the defendants, while the plaintiff was so enjoying his house and lot, maliciously and without cause, etc., dug up and destroyed said street, pavements, ways, etc., to the depth of five feet; took and removed the stone, earth and gravel, etc., by reason of which the walls of his house were injured, his cellar destroyed, and himself and family deprived of the use of his house, etc.

The defendants demurred generally, and the cause was adjourned for decision on the demurrer.

Fox and STORER, in support of the demurrer:

As a general principle it is admitted that an action of trespass on the case will lie against a corporation for all acts of non/easance; but for acts of misfeasance in a corporation, the right to sue must depend upon the peculiar circumstances of the case. The present defendants, who compose the corporation of Cincinnati, by the law of 1827, which was in force at the time of the acts complained of, were authorized "to cause the streets, lanes, alleys, and commons of the city to be kept open and in repair, and free from all kinds of nuisance." "They have the power to appoint supervisors of the highways, and the exclusive control and care of such streets." The right, then, to enter upon, to improve and repair the public highways, by her agents and servants, must be conceded to the city; and having thus a right to act, a discretion is necessary, on the part of these agents, in order to act efficiently. The power thus conferred is a beneficial one; and to effect fully

Goodloe v. City of Cincinnati.

the object for which it is given, great liberality of construction is due whenever its exercise is called in question. We therefore conclude that in all cases where a corporation, similar to the present, is sued for a misfeasance, it must appear in the declaration that the act for which reparation is sought was either negligently or maliciously done. It must also appear what the injury is, its nature and extent.

Let us inquire, in the first place, what power was delegated to the city, and how far their officers and agents are to be protected in its exercise. The right to direct all public improvements is wisely confided to the city council, who may legislate upon [502 the matter, with a full knowledge of the necessities, as well as of the resources of the community. This right implies, and, in fact, supposes a liberal discretion to be employed by those who are called on to act. In the laying out of new, and in the repair of old streets, many circumstances must exist to determine the conduct of the corporation as to the extent of the work to be performed as well as the mode in which it is to be executed. The public health may require that the sewers should be constructed on a different plan from that hitherto followed. The cleanliness, convenience, and safety of the public, may require that the streets should be wide ned, their surfaces graduated, and various alterations made, which can be understood by those only to whom the immediate charge is given. Having these duties to perform, it would follow that any change in the structure of the pavements, any excavations in the streets, any alterations in the sewers, would be a legitimate exercise of power, subject, however, to the supervision of a court of law, whenever the injury is wantonly done, or the jurisdiction of the corporation is exceeded.

In the case of the Governor and Company of the British Cast Plate Manufacturers v. Meredith and others, 4 D. & E. 794, it is decided that when an act authorizes commissioners to pave, by reason of which an individual is injured in his property, and there is no excess of jurisdiction on the part of the commissioners, neither they nor their servants acting under them are liable for such injuries. Lord Kenyon discusses the question on the only safe and just ground upon which it can be placed. He says: "That where the officers do not exceed their jurisdiction, no action will lie. Some individuals suffer an inconvenience under all these acts of parliament; but the interests of individuals must

Goodloe v. City of Cincinnati.

give way to the public accommodation." And Judge Buller, in the same case, says: "There are many cases in which individuals sustain an injury for which the law gives no remedy; for instance, pulling down houses, or raising bulwarks for the preservation and defense of the kingdom, etc. This is one of those cases to which the maxim applies: Salus populi, suprema est lex.' If the thing complained of was lawful at the time, no action can be sustained against the party doing the act."

503] *In Sutton v. Clarke, 6 Taunt. 42, the action was against the trustees under a turnpike act, for cutting a drain through certain lands. The consequence was considerable damage to the plaintiff's estate; yet it was held that the defendants, acting within their jurisdiction, and according to the best of their information, could not be answerable for the consequences of their

acts.

In Harman v. Tappenden et al., 1 East, 555, it was held, "that an action does not lie against individuals, for corporate acts, erroneously done, from which injury happens to the plaintiff, unless there is evidence of malice."

In Steele v. The Western Island Lock Navigation Company, 2 Johns. 286, the court decided, if the company, in making the canal, acted under the authority of a legislative act, unless they exceeded their jurisdiction, no action would lie against them for any damages occasioned by the cutting of the canal.

In Cossler v. The Corporation of Georgetown, 6 Wheat. 593, where a bill was filed to prevent the corporation from cutting down a street, by the plaintiff's land, on the ground that the street had already been graduated, and improvements made accordingly, it was held that the corporation had a right to fix the grade, whenever, in their discretion, it should be deemed proper. Chief Justice Marshall observes: "There can be no doubt that the power of graduating and leveling streets ought not to be capriciously exercised. Like all powers, it is susceptible of abuse, but is trusted to the inhabitants themselves, who elect the corporate body, and who may, therefore, be expected to consult the interests of the town." The whole opinion of this eminent man is full to the point for which we contend.

In Callinder v. Marsh, 1 Pick. 418, the Supreme Court of Massachusetts decided, "that a surveyor has authority, by the statute, to dig down or raise a street; and if he does it with dis

Goudloe v. City of Cincinnati.

cretion, and not wantonly, a party injured can not maintain a suit against him, nor any other person." In this case the action was brought against the defendant, for digging down the street by the plaintiff's dwelling house, in Boston, and taking away the earth, so as to lay bare the foundation walls of the house, and endanger its falling; in *consequence of which the plaintiff [504 was obliged, at great expense, to build up new walls, and otherwise secure the house, and render it safe and convenient of access as before. The defendant justified as surveyor of the highways; and under his general power to act as such, he committed the act complained of. Chief Justice Parker very elaborately examined the matter in dispute, and came to the conclusion already referred to. He answers, it seems to us, every objection, and establishes his decision upon the soundest arguments as well as the clearest authority.

Having thus explained the right and power of the defendants, not only from the reason of the thing, but by adjudged cases, we will inquire, in the second place, how far the plaintiff has entitled himself to recover by the facts stated in the declaration. The authorities already cited, establish the principle, that unless the power is abused, or the jurisdiction exceeded, no action will lie.

The plaintiff alleges, "that defendant entered upon the street adjoining his premises, and by his agents and servants, cut down, and dug, and tore up the same to the depth of six feet; whereby the sidewalk has become useless, his bouse materially injured, his cellar ruined and made unhealthy, and liable to the influx of water, and the convenience of passing and repassing destroyed." It will be seen there is no allegation of malice, or of negligence, or of an abuse of power on the part of the defendants; and as these constitute the gist of the action, they must be averred, or no case is made.

In Harman v. Tappenden et al., 1 East, 555, an action on the case for depriving plaintiff of his office of a freeman, in the company of "Free Fishermen," the judges expressed great doubt as to the propriety of a suit against the corporation, and explicitly held, that unless there was an allegation of malice, on the defendants' part, no action could be maintained. Lord Kenyon and Justice Lawrence declare, that no error of judgment can furnish grounds for a suit; and decide the direct point, that the defendants can not be made liable, unless they acted willfully and maliciously.