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13. A statnto prohibited tha ma in dties and towns of a certain size, of anj
building not then so in use, for carrying on the '* bosineBS of slanghtering
cattle, sheep, or other animals, or for melting or rendering establishments, or
for other noxioos and offensive trades or occapations," without the permission
of the mayor, etc. Eeid^ a constitutional exercise of the police power of the
legislature. 1872. 2nluib%tant$ofWatertoumY.Mapo{l(^MMB.9l5)^

14. Sfieot of act appropriating lands to pabUc use— what is ^pnbUo use"
— railroads. By tiie act of congress laying off the city of Burlington it was
provided " that a quantity of land, of proper width, on the river bank, at the
town of Burlington, and running with the said river the whole length of said
town, shall be reserved from sale for public use, and remain forever for public
use as a public highway, and for other public uses." BM^ (1) that the effect
of this act was to restrict the power of absolute disposition by the government,
and the dty toolc the land subject to the trusts and conditions expressed in the
act ; (2) that the natural accretions from the river to the reserved strip partook
of the same nature as the original reservation, and was held by the same
tenure and subject to the same use and conditions ; (8) that the owners of lots
abutting on this reservation did not, by their purchase, acquire the title to it,
but that they acquired such rights as would enable them to enjoin a diversion
of it to uses and purposes foreign to and inconsistent with the act of congress;
and (4) that the construction of a railway upon a reservation would be a
" public use " within the meaning of the act, but that the dty had no right to
make an unqualified disposition of it to a railway company to be held and used
as its private property, although it might lawfully convey the right of way to
a railway company. 1870. Oook v. The OUy of Burlington (30 Iowa, 94),
VI, 649.

16. An act requiring tha taxation of a town to pay for a bounty to a volun-
teer and the expense of unsuccessful suits to recover the same is not for a
munidpal purpose and is void. 1872. 8Me v. lappan (29 Wis. 664), IX, 622.

16. The legislature cannot constitutionally authorize a town to loan

its credit to persons who will, in consideration thereof, maintain a manufac-
turing enterprise in the town for their own private emolument. 1872. Atten
▼. Inhabitants of Jay (60 Me. 124), XI, 185.

IL By-laws and ordhiakobb.

17. Intozioating liquors. An ordinance of a town declaring a nuisance all
intoxicating liquors kept within the limits of the town for the purpose of being
sold or given away as a beverage to be drunk within said town, and directing
the police officers to abate said nuisance by removing the liquors beyond the
town limits, will not justify such officers in seising and carrying away liquors
until it has been determined by a court of justice that the ordinance has been
violated. 1869. J>ar«« ▼. Ps(?pie (51 m. 286). U. 801.

18. «— A dty ordinance for regulating the sale of intoxicating liquors pro-
Tided tliat druggists might sell such liquors for certain purposes, but required

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them, under a heavy penalty, to famish a qaarter-yearly statement verified by
their own and their clerks' and serrents' affidavit <:. showing the kind and
quantity of liqaor sold, when and to whom sold, etc In a prosecution under
this ordinance to recover the penalty for failing to i i raish the statement, A«M,
that the city council had no power to pass the ordinance ; that it was unreason-
able and oppressive and an invasion of the sanctity of private business. 1871.
OUy of CUntan v. PhiUips (58 Ul. 102), XI, 62, and note, 54.

19. Regulating the oreotion of buildings. A municipal corporation was
authorized by its charter to make by-laws regulating the erection of buildings.
Held, that a by-law requiring a building license and imposing a license fee was
vaUd. 1872. Welch v. HokhkiiB (89 Conn. 140). XH, 883.

20. Fire limits. Plaintiff declared against the corporation of Atlanta, alleg-
ing that it had by ordinance defined fire limits in the city within which the
erection of wooden buildings were prohibited. That while the ordinance was
in force the dty council authorised F. to erect a wooden building in the said
limits, which taking fire caused the destruction of plaintiflTs building. Held,
on demurrer, that the action could not be maintained. 1872. Fortyth v. Ma^irr
(46 Ga. 152), XII, 676.

21. Obstruction of street cars. Where a city ordinance gave to the street
cars of the dty precedence over all other vehicles, persons or things upon the
railroad track, and provided that *' if any person shall unnecessarily obstract
or impede the running of the cars on such track,'* he shall be liable to a fine for
such offense, hdd, that any obstruction or impediment to the free and unre-
stricted ose of the track, not the result of necessity, for any length of time,
however short, was an offense under the ordinance. 1871. 8MU v. Foley (81
Iowa, 527), VU, 166.

22. Unreasonable restraint of trade *- arrest under void ordinance. A
village charter empowered the trustees to enact and enforce ordinances " for
the government and good order of the village, for the suppression of vice, for
the benefit of trade and commerce and for the good health thereof/' The
trustees enacted an ordinance prohibiting the sale, without license, at tempor-
ary stands or tables, " of any lemonade," etc. Plaintiff was arrested for a vio-
lation of the ordinance. HM, that the ordinance was void, as an unreasonable
restraint of trade, and afforded no justification for the arrest. 1871. BarUniQ
V. West ^29 Wis. 307), IX, 576.

23. Regulating Tefaioles. A dty was authorized by its charter to provide
by ordinance for *' licensing, taxing and regulating hacks, drays, wagons and
other vehicles, used within the dty for pay." HM, that an ordinance, licens-
ing and taxing vehicles used in hauling into and out of the dty was void, as
not being authorized by the charter, and, somble, that the legislature could give
no authority to pass such an ordinance. 1872. OUy of 8t. OharlsB v. IfolU (51
Mo. 122), XI. 440.

24. Regulating bridges. A dty, authorized by its charter to build and reg-
ulate bridges over a navigable river fiowing through it, provided, by ordinance,
that the draws of the bridges should be dosed every ten minutes, if necessary
for the passage of persons and teams, and that any person navigating the river

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who Bhoald attempt to paas any bridge, or should approach so near as to ooca-
Bion ii^ary, while the draw waa so cloeed* should be subject to a penalty pre-
scribed. HM, that the ordinance was reasonable and valid. 1869. Ohioago
▼. McGinn (51 IlL 266), II, 295.

III. Rights akd liabilttibs.

1, AMio ttreeti and highu>ay9.

26. Neither a county nor a town is liable to a private action for ii^uries
occasioned bjr reason of the neglect of its officers to keep a bridge in repair.
1871. Whits V. County of Bond (58 Ul. 297), XI, 65 ; Town of WaUham ▼.
Kemper (55 111. 846), VIII, 652.

26. A city Is not liable in a private action to an injured person for neglect
to keep a crosswalk in repair. 1870. Detroit v. Blakeby (21 Mich. 84), IV, 450,

27. It is the duty of a city not only to keep its streets in repair, but to
erect barriers and protections to prevent travelers from passing without its
limits, but, in its general directions, into dangers and obstructions. Per Bbok«
J. 1870. Mandereehid v. CUy of Dubuque (29 Iowa, 78). IV, 196.

28. In an action against a city to recover for personal injuries, it

appeared that the plaintiff, while walking across a public common upon a foot-
path which had been prepared and cared for by the city, and used by the pub-
lic for more than twenty years, fell- into a deep excavation made by the direc-
tion of the city in the course of repairing a building used and rented by the
dty, standing within the common. The excavation was carelessly left
unguarded by the servants of the city employed in the work of repairing the
building. Held, that the city was liable, altbough the path was not a highway
by the law of Massachusetts, on the ground that the city, like a private owner,
was liable for injuries caused by the negligence of its servants, to a person
coming on grounds under its control, rightfully and by an implied invitation
and license. 1869. Oliver v. Woreeet&r (102 Mass. 489), III, 485.

29. In an action against a city for the value of ahorse lost by plaintiff

in consequence of a defect in a bridge, alleged to be part of a highway, which
the city was bound to keep in repair, it appeared that the way had been
dedicated to the city, but that no acts of acceptance had been performed
before the loss, other than public user, but that, after the loss, the
dty had repaired the bridge and the embankment adjacent. Held, that
plaintiff could recover. Williams, J., dissenting. 1870. MandereeAid v.
CWy of Dubuque (29 Iowa, 73), IV, 196.

30. Snow and ioe. The plaintiff was injured while passing along defend-
ant's street by a fall, occasioned by an accumulation of snow and ice upon the
sidewalk ; held, that defendant was liable. 1871. CoUine v. Oity of Oouned
Buffs (82 Iowa, 824), VII, 200, and note, 206. See Uiohwats.

31. Notioa of defects. In an action against a dty to recover damages for
an injury sustained from a defect in a highway, it must be shown that the
dty authorities had notice of the defect or that it was of snch a nature and
had existed for such a length of time that knowledge on thdr part most b«

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preBomed. 1869. Goodnaugh ▼. OUy of (khkoth (^ Win. 549), 1, 20d; Bequa
V. City ofRochHt^r (46 N. Y. 189), VI. 52.

32. If a latent defect caoBing an injary ooald have been detected bj

proper and careful ezaminationB bj skilled persons employed by the anthor-
ities, the corporation will be liable. 1871. Bapho, ete, ▼. Moore (68 Penn. St
404), Vm, 202.

33. Whether notice can be inferred from length of time a defect has

continued is a question for the jury. 1869. OoUey ▼. InhabitarUs of Wat'
brook (57 Me. 181), II, 80.

34. damages. Where a pedestrian received personal injuries arising

from a defective plank in a sidewalk of a city, and the officers of such dty
knew, at the time the accident occurred, that the general condition of the walk
was such that from mere decay such an accident was liable to happen at any
moment, Tietd, (1) that the city was liable for such injuries, and chargeable
with negligence in omitting to repair, without bringing home to the authorities
actual knowledge of the looseness of the particular plank which occasioned
the injuries ; (2) that the party so iiyured, where the injury is permanent, can
recover prospective, as well as past damages, not exceeding the amount claimed
in the complaint. 1870. WeUenberg v. OUy of Appleton (26 Wis. 56), VII, 89,
and note, 48.

36. In an action against a municipal corporation for injuries occas-
ioned by a defect in a sidewalk, the damages should not be vindictive or
punitive, but only compensatory. 1869. CfUy of Ohieago v. Langlau (52 Dl.
256), IV, 608.

36. Damages in grading street. An action will not lie by an individual
against a dty for damages to his premises resulting from the exercise, by the
city, of a lawful authority to grade the streets, there being no want of care or
skUl aUeged. 1870. Simmona v. Oity of Camden (26 Ark. 276), VTI, 620, and
note, 260.

37. Under a clause of the city charter giving to the common council

power to regulate, improve, alter and extend streets, and to cause the removal
of obstructions, etc., " making the parties injured by an improvement a just
oompensation, and charging upon those benefited a reasonable assessment, to
be ascertained in such manner as shall be agreed upon by the parties, or by a
jury of twelve men, to be organized in such manner as, by ordinance, the city
council may provide," the council of the dty of Jacksonville, in making im-
provements in a street of that dty, caused injury to an adjoining lot, by digging
away the sidewalk, removing shade trees, etc, for which no compensation was
made to the owner. Held, (1) that the dty was not liable at common law for
the damages sustained by parties in consequence of making ingirovements
under authority of law, and that the common law giving no remedy, that given
by the legislature must be pursued ; (2) that in an action to recover such
damages, a declaration alleging that the defendant, " contriving and unjustly
intending to injure, prejudice and aggrieve the plaintiff," dug away his side-
walk, destroyed his shade trees, and created a nuisance in front of his premiseiv
states a cause of action at common law, the acts thus chaiged being in violation

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of law, and that Bucb declaration is not demnrrable as stating no cause of
action. 1871. Dorman v. The CUy of JaeJaormUe (18 Fla. 588), VU, 253, and
TioU, 260.

38. Cannot turn toifiio* water on a4Joining lands. A manicipal corpora-
tion cannot so adjust the grade of its streets as to tarn surface water upon the
lots of adjacent owners ; nor can It lawfully permit property owners on a street
to fill up a portion thereof in front of their lots in such a manner as to turn
the surface water upon the property of others. 1870. Oily of Aurora ▼. Reed
ijyt 111. 29), XI, 1.

39. Removing soil from streeft The common council of the city of D.
ordered a certain street to be filled, and directed that another street should be
cut down in order to obtain earth for filling. Held, that the common council
had no power to direct the cutting down of the latter street for the purpose of
improving the former ; and that the city was liable for damages to an owner
of land adjoining the street cut down. 1871. OUy ofBei/phi ▼. SkoM (86 Ind.
90), X, 12, and noU, 19.

40. The owners of lots abutting on streets and alleys in a city have an

interest in the streets and alleys, and the right to their use as they were when
the lots were purchased, subject to the paramount power of the common council
in the mode prescribed by law to improve them. And the city authorities have
no power to order the removal of earth from a street, unless it is done in pur
suance of an order for the improvement of such street, id.

41. But where a municipal corporation laid out a public street over

defendant's land and appraised his damages, KM, that in reducing such street
to the proper grade said corporation had an exclusive right as against the
defendant to carry the soil therefrom and deposit it on a street in another part
of the city for a necessary purpose. 1871 . OiJty of New Haven v. Sargent (88
Conn. 50), IX, 860.

42. lilability for senrloas on highway. In an action by contractors for
services performed in changing the route of a public road by direction of the
supervisors, it appeared that the supervisors had no authority to change the
route, but that the contractors had no knowledge of this want of authority.
Held, that the town was liable. It seems that the town has a remedy over
against the sopervisors. 1870. Cook v. Deerfleld (64 Penn. St 445), III, 605.

43. An ii^lunotlon will Ue, at the suit of the proprietor, to restrain a muni-
cipal corporation from opening a new street on his land, and collecting a sum
of money out of him, assessed as his benefit of the proposed improvement,
and his contribution of the cost of opening the street, when the proceedings
of the corporation appear to be regular, and their invalidity is to be shown by
extrinsic evidence. 1872. Miffer v. 2£ayor (47 Ala. 168), XI, 768.

44. Railroad in street — duty of railroad to repair. A railroad company, in
part consideration of certain franciiises, gave a bond to a dty wherein they cov-
enanted to keep the pavement of streets, through which their road ran, ** in
thorough repair within the tracks, and three feet on each side thereof, with the
best water-stone, under the direction of such competent authority as the oom-

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mon council might designate." In an action on the bond for a breach of the
covenant, hM, that the railroad company was bound to keep the paTement in
^ thorough repair/' and that the designation of " competent authority " to super-
intend such repairs was not a condition precedent ; also, that the dtj could
recover of the railroad company the amount of a judgment obtained against it
by a traveler who had sustained injuries in consequence of the failure of the
railroad company to keep the pavement in repair as required by the bond.
1873. CUy qf Brooklyn v. Brooklyn City RaUroad Co. (47 N. Y. 475). VU, 469.
46. Falling signs. Municipal corporations are not liable for injuries occa-
sioned to a traveler in a street or highway, by the falling of a sign insecurely
fastened over a sidewalk by the owner of a building, even though the danger-
ous condition of the sign had been brought home to the notice of the authori-
ties. 1866. Taylor v. Peckham (8 R. L 849), V, 578 : Jones v. Boston (104 Mass.
75), VI, 194 ; Hewison v. CUy of Neu> Ha/om (37 Conn. 475). IX, 842.

2. Sewers.

46. Defendant, a municipal corporation, constructed, in a lawful and careful
manner, a sewer, by making the excavation for which the lateral support to
plaintiff's house was withdrawn, so that the foundation walls gave way. Held,
that defendant was not liable in damages. 1871. CUy of CiticinnaH v. Penny
(21 Ohio St. 499), VIII, 73.

47. The defendants, a municipal corporation, built a sewer, which was defect-
ive, and plaintiff's land was flooded and Injured thereby. Held, that this was
a taking of plaintiff's property within the meaning of the constitution, for
which compensation was due, and that defendants were liable irrespective of
negligence. 1878. Thurston v. CUy of 8t. Joseph (51 Mo. 510), XI, 463.

8. Fire department.

48. Liability for defeotive fire department A city, authorized by statute
to establish a fire department and procure engines, etc., necessary to extinguish
fires, is not liable to an individual whose house has been burned, for any defect
in the execution of such power, nor for a neglect of duty on the part of fire
companies or their ofllcers. 1869. Wheeler v. CUy of Cincinnati (19 Ohio St
19), U, 868.

49. In the absence of express statute, municipal corporations are not

liable for personal injuries occasioned by reason of the negligence of the fire
department in using or keeping in repair fire engines. 1870. Fisher v. CUy of
Boston (104 Mass. 87), VI, 196.

60. By an act of the legislature, a city was empowered to make a suffi-
cient number of reservoirs " to supply water in case of fire." Under this act a
reservoir was constructed, but was afterward partially destroyed by the city,
so that when a fire occurred on plaintiff's premises, near by, there was no water
in the reservoir to extinguish it. In an action against the city for damages,
held, that plaintiff could not recover, on the ground that it was discretionary
with the city to construct or maintain the reservoir. 1871. Ora$U v. City of
Ehie (69 Penn. St. 420), VIII, 272, and note, 275.

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6L Aoti of firtmtii. A dtj aathorixad bj its charter to establish and reg-
ulate a fire department is not liable for injaries occasioned hj the negligence
of a fireman while engaged in the discharge of his duties, although such fire>
man is employed and paid by the city. 1871. JewU ▼. OUp of Neto Hapten (88
Conn. 868), IX, 888.

62. A municipal corporation is not liable for damages caused by the acts

of a voluntary association of firemen while engaged in extinguishing a fire
within the corporate limits. 1871. IMnuh r. Oify of Norwich (88 Conn. 325),
IX, 896.


63, Of propttrty benefited — strict oomplianoe with charter. The legislature
may authorise a municipal corporation to assess the whole or any portion of
the expenses of local improvements on the property benefited ; but when the
charter provides that if the common council of a city shall deem any such
improvements necessary, they shall so declare by resolution, such declaration
must be made before the improvement is ordered. 1869. Hoyt v. City of
Saginaw (19 Mich. 89), II, 76.

6^ For repaying streets when void. A statute authorised the improvement
of a street, already paved and in good condition, for a public drive, at the
expense of adjacent owners, hM, unconstitutional as imposing local assess-
ments for public benefit. 1870. HammtU v. Philadelphia (65 Penn. St. 146),
m, 615.

66. But the foregoing case was distinguished, and assessments for repav

ing or reconstructing a street already constructed at the cost of adjoining own.
ers, were held valid ; and it was further Md, that a provision in a charter that
" after the first improvements, repairs were to be made at the expense of the
dty," was not a contract, and that a subsequent charter anthorixing local
assessments for repairs was constitutional. 1870. Bradley v. MeAtee (7 Bush.
667), in, 809. 1871. Broadway Baptiet Church v. IfeAlee (8 Bush. 508),

66. Of fiurm lands. The legislature has no authority to compel the owners
of f^rm lands, lying within one mile on each side of a public highway, to pay
for grading, macadamising and improving it, by an assessment upon their lands
by the acre. 1871. Woihington Avenue (69 Penn. St. 852), VIII, 255.

67. Of property ci charitable and reUgioiis corporations. The constitu^on
and statutes of Indiana provide for the exemption from assessment and taxa-
tion of property used for religious purposes. Held, that the tax contemplated
is entirely distinct from an assessment for local purposes, and that such assess-
ment does not come within the exception. 1871. Ftrel Preebyterian Church
V. The City of Fort Wayne (86 Ind. 888), X, 85.

68. A charitable corporation, which is, by its charter, " exempted from taxa-
tion of every kind," is not exempted from special assessments against its
property for improvements in a street on which it abuts. 1872. Shehan v. The
Good Samaritan Hoepital (50 Mo. 155), XI, 412; Broadway BapHet Church v.
McAtee (8 Bush. 508), Vin, 481, and note, 487.

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69. Bj the ■odotj's chArter, it is enacted thmt the property of the aodety
" shall not be subject to taxes or assessments." HM, that the word " taxes/*
in the exempting danse of the charter, most in the absence of any dear indi-
cation to the contrary, be onderstood to refer exdosivelj to the ordinary public
taxes ; and that the word " assessments " has reference to burdens of the same
general character as those expressed by the word " taxes/' and was not
intended to include local assessments for munidpal purposes. 1871. State v.
Maifor, etc., of Jfewark (W N. J. 167), X, 238 ; reversed (86 N. J. 478), 18 Am.
Rep. 423.

60. A dty charter directed that the assessment for local improvements should
not in any year exceed ten per cent of the value of the property as valued and
assessed on the tax duplicate for State, county and dty taxes. Eeld, that as
property for religious purposes could not be valued and assessed upon the tax
duplicate, there was no mode for determining the rate of assessment to which
it was liable for the construction of a sewer, and that such sssessment could
not be made. 1871. First Pretbytmian Church r. City of Fort Wayne (86
Ind. 888). X, 85.

61. Of railroad. A dty laid out a new street running parallel with a rail-
road, and appropriating throughout its whole extent some portion of the land
embraced in the charter of the railroad. The railroad was assessed for bene-
fits arising from the construction of the new street, upon the ground that by
reason of the improvement the lines of sight would be extended and the com-
pany would be enabled to, run their trains faster with less danger of casualties,
and would not be put to the inconvenience of keeping gates and flagmen at the
crossings. Held, (1) that in absence of proof of an existing necessity, the dty
had no right to appropriate the land induded in the charter of the railroad
oompany as a highway ; (3) that the benefits could not be assessed upon the
" franchises " of the company ; and (3) that the benefits were too contingent
and consequential to be assessed on the '* corporation " or any of its property.

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 34 of 51)