not well arise under which such a corporation would be liable. The argument was strongly pressed that if the officers of the corporation, within their respective spheres, act lawfully and within the scope of their authority, their acts must be deemed justifiable, and nobody is liable for damages, and if any individual sustains loss by the exercise of such lawful authority, it is damnum absque injuria. But if they do not act within the scope of their authority, they act in a manner which the corporation has not authorized, and in that case the officers are personally responsible for such unlawful and unauthorized acts. But it was universally held that this argument, if pressed to all its consequences, and made the foundation of an inflexible practical rule, would often lead to very unjust results. There is a large class of cases, in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known at the time the act is done whether it is lawful or not. The event of a legal inquiry in a court of justice may show that it was unlawful. Still, if it was not known and understood to be unlawful at the time, if it was an act done by the officers having competent authority, either by express vote of the city government, or by the nature of the duties and functions with which they are charged, by their offices, to act upon the general subject matter, and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage, reason and justice obviously require that .the city, in its corporate capacity, should be liable to make good the damage sustained by an individual, in consequence of the acts thus done.16 It is accordingly now well established that a municipal corporation may be liable in an action sounding in tort where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the municipal government, or of those branches thereof invested with jurisdiction to act for the corporation, upon the subject to which the particular act relates, or where after the act has been done, it has been ratified, by the corporation, by any similar act of its officers.17

371. Use of Municipal Real Estate Constituting Nuisance.-A municipal corporation as an owner of land owes the same obligations to the owners of neighboring land with respect to the use of its

note.

16. Thayer V. Boston, 19 Pick. 831 and note; Forbell v. New York, (Mass.) 511, 31 Am. Dec. 157 and 164 N. Y. 522, 58 N. E. 644, 79 A. S. R. 666 and note, 51 L.R.A. 695; Persons v. Valley City, 26 N. D. 342, 144 N. Ŵ. 675, Ľ.R.A.1916D 1079 and note; Hollman v. Platteville, 101 Wis. 94, 76 N. W. 1119, 70 A. S. R. 899

17. Faucheux v. St. Martinville, 124 La. 959, 50 So. 809, 35 L.R.A.(N.S.) 435 and note; Thayer v. Boston, 19 Pick. (Mass.) 511, 31 Am. Dec. 157 and note; Viliski v. Minneapolis, 40 and note. Minn. 304, 41 N. W. 1050, 3 L.R.A.

own, except so far as it has specific authority from the legislature to the contrary, as that of any private owner of land, and it is accordingly well settled that if a municipal corporation makes such use of its own land as to constitute a private nuisance at common law it is liable to the owner of land specially injured by such nuisance, without regard to the character of the use which the municipality is making or whether it is engaged in a governmental or private function.18 The reason underlying this rule, which seems to throw greater protection over real estate than over personal safety, although it has seldom been expressed by the courts, is doubtless not so much the sanctity of private rights in real estate as that the permanent use of real estate owned by a municipal corporation is a matter within the control and observation of the governing body of the corporation, and not merely of the subordinate officials in charge of the particular piece of property, so that a creation of a nuisance may fairly be called the act of the corporation itself, whereas the defective condition of public property by reason of which an individual suffers personal injuries is usually due to the negligence of an individual caretaker, for which the municipality may not be liable.19

372. Construction of Public Improvements Generally.-It is well settled that if a municipal corporation negligently constructs a public improvement or negligently maintains one properly constructed

18. Denver v. Davis, 37 Colo. 370, 86 Pac. 1027, 119 A. S. R. 293 and note, 11 Ann. Cas. 187 and note, 6 L.R.A. (N.S.) 1013 and note; Atlanta v. Warnock, 91 Ga. 210, 18 S. E. 135, 44 A. S. R. 17, 23 L.R.A. 301 and note; Long v. Elberton, 109 Ga. 28, 34 S. E. 333, 77 A. S. R. 363 and note, 46 L.R.A. 428; Haag v. Vanderburgh County, 60 Ind. 511, 28 Am. Rep. 654; Valparaiso v. Moffitt, 12 Ind. App. 250, 39 N. E. 909, 54 A. S. R. 522; Clayton v. Henderson, 103 Ky. 228, 44 S. W. 667, 44 L.R.A. 474, 57 S. W. 1, 22 Ky. L. Rep. 283, 53 L.R.A. 145; Henderson v. O'Haloran, 114 Ky. 186, 70 S. W. 662, 102 A. S. R. 279, 59 L.R.A. 718; Louisville v. Hehemann, 161 Ky. 523, 171 S. W. 165, L.R.A.1915C 747 and note; Franklin Wharf Co. v. Portland, 67 Me. 46, 24 Am. Rep. 1; State v. Portland, 74 Me. 268, 43 Am. Rep. 586; Baltimore v. Fairfield Imp. Co., 87 Md. 352, 39 Atl. 1081, 67 A. S. R. 344, 40 L.R.A. 494; Nichols v. Boston, 98 Mass. 39, 93 Am. Dec. 132; Aldworth v. Lynn, 153

Mass. 53, 26 N. E. 229, 25 A. S. R. 608 and note, 10 L.R.A. 210 and note; Miles v. Worcester, 154 Mass. 511, 28 N. E. 676, 26 A. S. R. 264, 13 L.R.A. 841; Lane v. Concord, 70 N. H. 485, 49 Atl. 687, 85 A. S. R. 643; Hines v. Rocky Mount, 162 N. C. 409, 78 S. E. 510, Ann. Cas. 1915A 132 and note, L.R.A.1915C 751; Mansfield v. Bristor, 76 Ohio St. 270, 81 N. E. 631, 118 A. S. R. 852, 10 Ann. Cas. 767, 10 L.R.A. (N.S.) 806; Briegel v. Philadelphia, 135 Pa. St. 451, 19 Atl. 1038. 20 A. S. R. 885; Johnson Co. v. Philadelphia, 236 Pa. St. 510, 84 Atl. 1014, Ann. Cas. 1914A 68, 42 L.R.A. (N.S.) 512 and note; Fort Worth v. Crawford, 74 Tex. 404, 12 S. W. 52, 15 A. S. R. 840 and note; Suffolk v. Parker, 79 Va. 660, 52 Am. Rep. 640 and note.

Notes: 93 A. S. R. 848; 7 L.R.A. 156; 1 L.R.A. (N.S.) 120-131; 3 Ann. Cas. 885.

And see DRAINS AND SEWERS, vol. 9, p. 670 et seq.; NUISANCES. 19. See infra, par. 401.

so as to injure private citizens or their property, it will be liable in damages for the injury thus occasioned.20 It is liable for the carelessness or neglect of its agent on the same principle that a natural person is liable for damages resulting from his carelessness, unskilfulness, or wrongdoing. Though not liable for injury resulting from the adoption of an improper plan, after the plan has been adopted, the duty of carrying it into effect is purely ministerial and with respect to such duty no exemption from liability is recognized.* 373. Injuries Inflicted under Legislative Authority; Unlawful or Negligent Acts.-A municipal corporation, even when in the course of the construction of a public improvement according to the plan specifically authorized by its governing body it inflicts an injury

3. Johnston v. District of Columbia, 118 U. S. 19, 6 S. Ct. 923, 30 U. S. (L. ed.) 75; Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Arndt v. Cullman, 132 Ala. 540, 31 So. 478, 90 A. S. R. 922 and note; Judd v. Hartford, 72 Conn. 350, 44 Atl. 510, 77 A. S R. 312 and note; Atlanta v. War- 95 et seq.

upon private land which would be actionable if caused by a private individual, cannot be held liable at the suit of the injured party if the construction of the improvement in the way in which it was actually constructed was expressly or impliedly authorized by the legislature. What the legislature, acting within the constitutional limits of its power, has authorized cannot be a tort; and it is well settled that it is within the constitutional power of the legislature of a state, without providing for compensation, to authorize the erection of public works within the limits of such state that will inflict injury upon adjacent land that would be actionable if inflicted without such authority. When, however, the legislature authorizes a municipality to inflict such severe injury upon private property as to deprive the owner of all beneficial use thereof, unless compensation is provided the statute is unconstitutional and furnishes no justification for the acts which it purports to authorize, and the municipal corporation may be held liable in tort for attempting to act thereunder. So also, in many of the states, constitutional provisions have been

and note; Brand v. Multnomah County, 38 Ore. 79, 60 Pac. 390, 62 Pac. 209, 84 A. S. R. 772, 50 L.R.A. 389; Green v. Reading, 9 Watts (Pa.) 382, 36 Am. Dec. 127; Humes v. Knoxville, 1 Humph. (Tenn.) 403, 34 Am. Dec. 657; Stearns v. Richmond, 88 Va. 992. 14 S. E. 847, 29 A. S. R. 758; Home Bldg., etc., Co. v. Roanoke, 91 Va. 52, 20 S. E. 895, 27 L.R.A. 551.

4. Goszler v. Georgetown, 6 Wheat. 593, 5 U. S. (L. ed.) 339; Smith v. Washington, 20 How. 135, 15 U. S. (L. ed.) 858; Northern Transportation Co. v. Chicago, 99 U. S. 635, 25 U. S. (L. ed.) 336; Simmons v. Camden, 26 Ark. 276, 7 Am. Rep. 620; Fellowes v. New Haven, 44 Conn. 240, 26 Am. Rep. 447 and note; Dorman v. Jacksonville, 13 Fla. 538, 7 Am. Rep. 253; Selden v. Jacksonville, 28 Fla. 558, 10 So. 457, 5. Nevins v. Peoria, 41 Ill. 502, 89 29 A. S. R. 278, 14 L.R.A. 370: Quincy Am. Dec. 392 and note; Hendershott v. Jones, 76 Ill. 231, 20 Am. Rep. 243; v. Ottumwa, 46 Ia. 658, 26 Am. Rep. Shawneetown v. Mason, 82 II. 337, 25 182; Miles v. Worcester, 154 Mass. Am. Rep. 321; Cummins v. Seymour, 511, 28 N. E. 676, 26 A. S. R. 264, 13 79 Ind. 491, 41 Am. Rep. 618; Davis L.R.A. 841; Ashley v. Port Huron, 35 v. Crawfordsville, 119 Ind. 1, 21 N. Mich. 296, 24 Am. Rep. 552; VanderE. 449, 12 A. S. R. 361 and note; Bur- lip v. Grand Rapids, 73 Mich. 522, 41 lington v. Gilbert, 31 Ia. 356, 7 Am. N. W. 677, 16 A. S. R. 597 and note. Rep. 143; Keasy v. Louisville, 4 Dana 3 L.R.A. 247 and note; Thurston v. St. (Ky.) 154, 29 Am. Dec. 395; Willis v. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Winona City, 59 Minn. 27, 60 N. W. Broadwell v. Kansas City, 75 Mo. 213. 814, 26 L.R.A. 142; Imler v. Spring- 42 Am. Rep. 406; Seifert v. Brooklyn, field, 55 Mo. 119, 17 Am. Rep. 645; 101 N. Y. 136, 4 N. E. 321, 54 Am. Churchill v. Beethe. 48 Neb. 87, 66 N. Rep. 664; Inman v. Tripp, 11 R. I. W. 992, 35 L.R.A. 442; Wilson v. New 520, 23 Am. Rep. 520; Barron v. MemYork, 1 Denio (N. Y.) 595, 43 Am. phis, 113 Tenn. 89, 80 S. W. 832, 106 Dec. 719 and note; Radcliff v. Brook- A. S. R. 810; Jordan v. Benwood, 42 lyn, 4 N. Y. 195, 53 Am. Dec. 357 and W. Va. 312, 26 S. E. 266, 57 A. S. R. note; Sauer v. New York, 180 N. Y. 27, 859, 36 L.R.A. 519; Pettigrew v. 72 N. E. 579, 70 L.R.A. 717, affirmed Evansville, 25 Wis. 223, 3 Am. Rep. 206 U. S. 536, 27 S. Ct. 686, 51 U. 50. And see EMINENT DOMAIN, vol. S. (L. ed.) 1176; Bush v. Portland, 19 10, pp. 71, 124 et seq. Ore. 45, 23 Pac. 667, 20 A. S. R. 789

adopted, requiring compensation to be paid when property is damaged for the public use, as well as when it is taken, and in such states, when property is damaged in the constitutional sense by the construction of a public work in accordance with the statutory authority, if no special provision is made for the determination and payment of compensation, the owner of the property may recover his damages in an action of tort. Even, however, if the injury authorized by the statute would be unconstitutional if no provision were made for compensation, if provision is made for the ascertainment and payment of compensation and a special remedy pointed out by the legislature for the enforcement of this right,, which the injured party may invoke, the owner of property taken or damaged cannot maintain an action of tort against the municipality." When a municipal corporation sets up as a defense to an action of tort brought by an individual for an injury to his land inflicted by the construction of a public improvement that the injury was authorized by the legislature, and contends that the injured party either has no remedy at all, or has only the special remedy which the legislature has provided, to sustain such defense the corporation must show that it has acted within the statutory authority, and if it appears that the corporation exceeded the authority given to it by the statute, or failed to comply with the requirements of law enacted to protect the rights of the property owner, 10 or has acted negligently, and inflicted injury upon private property which was not necessary to the construction of the work in a reasonably careful manner, its justification will fail, and it will be held liable to the same extent and in the same manner as if no statute in relation to the improvement had been enacted.11

6. Hickman v. Kansas City, 120 Mo. 110, 25 S. W. 225, 41 A. S. R. 684, 23 L.R.A. 658; Searle v. Lead. 10 S. D. 312, 73 N. W. 101, 39 L.R.A. 345; Swift v. Newport News, 105 Va. 108. 52 S. E. 821, 3 L.R.A. (N.S.) 404; Johnson v. Parkersburg, 16 W. Va. 402, 37 Am. Rep. 779. And see EMINENT DOMAIN, vol. 10, p. 227.

It

MAIN, vol. 10, p. 223 et seq.
8. Stack v. East St. Louis, 85 Ill.
377, 28 Am. Rep. 619.

9. Bailey v. Osborn, 80 N. J. L. 333, 78 Atl. 9, Ann. Cas. 1912A 454.

10. Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N. E. 324, 32 A. S. R. 263; Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520.

11. Chicago Sanitary Dist. v. Ray, 199 Ill. 63, 64 N. E. 1048, 93 A. S. R. 102; Perry v. Worcester, 6 Gray (Mass.) 544, 66 Am. Dec. 431; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Imler v. Springfield, 55 Mo. 119, 17 Am. Rep. 645; Stork v. Philadelphia, 195 Pa. St. 101, 45 Atl. 678, 49 L.R.A. 600.

7. Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N. E. 324, 32 A. S. R. 263; Perry v. Worcester, 6 Gray (Mass.) 544, 66 Am. Dec. 431 and note; Brown v. Beatty, 34 Miss. 227, 69 Am. Dec. 389; Hickox v. Cleveland, 8 Ohio 543, 32 Am. Dec. 730; Foote v. Cincinnati, 11 Ohio 408, 38 Am. Dec. 737; Akron v. McComb, 18 Ohio 229, 51 Am. Dec. 453; Kensington v. Wood, 10 Pa. St. 93, 49 Am. Dec. 582; Parish v. Yorkville, 96 S. C. 24, 79 S. E. 635, L.R.A. p. 1915A 282. And see EMINENT Do

Note: 66 Am. Dec. 437.

And see EMINENT DOMAIN, vol. 10, 225 et seq.