OlorntU ICam ^rliaol IGtbrarg 
 
Cornell University Library 
 KF 1302.A2W72 
 
 The liability of municipal corporations 
 
 3 1924 019 387 434 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019387434 
 
THE LIABILITY 
 
 OF 
 
 MUNICIPAL CORPORATIONS 
 FOR TORT 
 
THE LIABILITY 
 
 OP 
 
 MUNICIPAL CORPORATIONS 
 FOR TORT 
 
 TREATINa FULLY MUNICIPAL LIABILITY 
 FOB NEaLiaENGE 
 
 BY 
 
 WATERMAN L.V1LLIAMS, A.B., LL.B. 
 
 AUTHOK OF "STATDIORT TORTS IN MASSACHUSETTS" 
 
 BOSTON 
 
 LITTLE, BKOWN, AND COMPANY 
 
 1901 
 
'"Vopfright, 1901, 
 By Little, Beown, and Company. 
 
 SanibrasftH Presa: 
 John Wilson and Son, Cambridge, U. S. A. 
 
TABLE OF CONTENTS. 
 
 Paoe 
 
 Table or Cases vii 
 
 Chaptek 
 
 I. The General Principles op the Liability ... 1 
 
 II. The Liability for Ultra Vires Torts .... 24 
 
 III. The Liability for the Acts op Officers and 
 
 Agents 26 
 
 IV. The Liability as a Property Owner 58 
 
 v. The Liability relative to Bridges 70 
 
 VI. The Liability relative to Streets and Highways 96 
 
 Part I. The Liability growing out of their Coustruc- 
 
 tion 96 
 
 II. The Liability growing out of their Mainten- 
 ance 105 
 
 III. Statutory Notice of the Accident .... 241 
 
 IV. Evidence 250 
 
 VII. The Liability relative to Drains and Sewers . 256 
 
 VIII. The Liability relative to Waters 273 
 
 Part I. Surface Waters 273 
 
 II. Watercourses 280 
 
 IX. The Liability for Private Property injured or 
 
 destroyed 290 
 
 Part I. By Mobs or Riotous Assemblages of People 290 
 II. By Officers or Agents of the Corporation, 
 
 to prevent the Spread of Fire .... 300 
 III. By Officers or Agents of the Corporation, to 
 
 abate a Public Nuisance 303 
 
Tl CONTENTS. 
 
 Chapter Page 
 
 X. The Liability relative to Nuisances .... 305 
 
 XI. The Liability relative to Public Health, Char- 
 ities, AND Schools 309 
 
 XII. The Liability relative to Ordinances . . . . 313 
 
 INDEX 319 
 
TABLE OF CASES. 
 
 ' Page 
 Abbbtt v. Johnson County (114 
 
 Ind. 61) 5, 107 
 
 Abilene v. Cdwperthwait (52 
 
 Kan. 324) 188, 204 
 
 Adams v. Chicopee (147 Mass. 
 
 440) 162 
 
 V. Natiuk (14 Allen, 429) 191, 192, 
 
 194 
 
 Addy V. Janesville (70 Wis. 401) 275 
 
 Adsit V. Brady (4 Hill, 630) 22 
 
 Agnew V. Corunna (55 Mich. 428) 
 
 138, 158 
 Ahem v. Kings County (89 Hun, 
 
 148) 6 
 
 Akron v. Chamberlain Company 
 
 (34 Oh. St. 328) 102 
 
 Albany v. CunlifE (2 N. Y. 165) 24, 
 
 82 
 V. Sikes (94 Ga. 30) 274 
 
 Albee v. Floyd County (46 la. 
 
 177) 72 
 
 Alberts v. Vernon (96 Mich. 549) 
 
 210, 254 
 Albrecht v. Queens County (84 
 
 Hun, 399) 6 
 
 Albrittin v. Huntsville (60 Ala. 
 
 486) 17, 22, 96, 109, 119, 214, 241 
 Alcorn v. Philadelphia (44 Pa. St. 
 
 348) 48 
 
 Alden v. Minneapolis (24 Minn. 
 
 254) 98, 275 
 
 Aldrich v. Gorham (77 Me. 287) 
 
 167, 175 
 
 V. Pelham (1 Gray, 510) 251, 252 
 
 V. Tripp (11 R. I. 141) 28, 85, 51, 
 
 67 
 
 Alexander v. Big Rapids (76 
 
 Mich. 282) 150 
 
 V. Milwaukee (16 Wis. 247) 282 
 
 V. Mt. Sterling (71 111. 366) 202 
 
 V. New Castle (115 Ind. 51) 165, 
 
 170 
 
 V. Oshkosh (33 Wis. 277) 182 
 
 V. Vicksburg (68 Miss. 564) 44 
 
 Alexandria v. Young (20 Ind. 
 
 App. 672) 195 
 
 Alger V. Easton (119 Mass. 77) 46 
 V. Lowell (3 Allen, 402) 168, 192, 
 238 
 Alleghany County v. Broad- 
 waters (69 Md. 533) 232, 233 
 Allegheny County v. Gibson (90 
 Pa. St. 397) 291, 292, 294, 296, 297, 
 
 298 
 Allen V. Boston (159 Mass. 324) 265 
 V. Chippewa Falls (52 Wis. 
 
 430) 15, 262 
 
 V. Cook (45 Atl. Rep. 148) 165 
 V. Hancock (16 Vt. 230) 222 
 
 Allen County u. Bacon (96 Ind, 
 
 31) 4, 91, 92, 95 
 
 V. Creviston (133 Ind. 89) 74, 75, 
 77, 78, 88 
 Allentown v. Kramer (73 Pa. St. 
 
 406) 98, 258, 276, 278 
 
 Allison V. Middletown (101 N. Y. 
 
 667) 160 
 
 Alton V. Hope (68 111. 167) 265 
 
 Americus v. Chapman (94 Ga. 
 
 711) 150 
 
 u. Eldridge (64 Ga. 524) 260 
 
 V. Mitchell (79 Ga. 807 ) 303, 304 
 
 Anderson v. Bath (42 Me. 346) 167 
 
 V. East (117 Ind. 126) 12, 154 
 
 V. Wilmington (8 Houst. 516) 109 
 
 Anna v. Boren (77 111. App. 408) 130 
 
 Anne Arundel County v. Duck- 
 
 ett (20 Md. 468) 4, 108 
 
 !A. Duvall (54 Md. 350) 5 
 
 Anthony v. Adams (1 Met. 284) 24, 32 
 Arey v. Newton (148 Mass. 598) 
 
 137, 144 
 Argus V. Sturgis (86 Mich. 344) 233 
 Arkadelphia v. Windham (49 
 
 Ark. 139) 111, 112, 113 
 
 Armstrong v. Brunswick (79 Mo. 
 
 819) 12, 13, 808 
 
 Am V. Kansas City (14 Fed. Rep. 
 
 236) 274 
 
 Arnold v. San Jos^ (81 Cal. 618) 110 
 Aron V. Wausau (74 N. W. Rep. 
 354) 299 
 
Vlll 
 
 TABLE OF CASES. 
 
 Page 
 Aryman v. Marshalltown (90 la. 
 
 350) 215 
 
 Asbestine Tiling, etc. Co. v. Hepp 
 
 (39Fecl. Eep.324) 48 
 
 Ashborn v. Waterbury (70 Conn. 
 
 551) 238, 246 
 
 Ashby V. Erie (85 Pa. St. 286) 33 
 Asliley V. Port Huron (35 Mich. 
 
 296) 98, 269, 279 
 
 Askew V. Hale County (54 Ala. 
 
 639) 4, 106 
 
 Aston V. McClure (102 Pa. St. 
 
 322) 130 
 
 V. Newton (134 Mass. 507) 128, 
 
 145, 247 
 
 Atchison v. Challiss (9 Kan. 603) 14, 
 
 ' 257 258 271 
 
 a. King (9 Kan. 550) 21,'l69,'l70, 
 
 181 
 
 V. Twine (9 Kan. 350) 295, 296, 
 
 299 
 
 Atherton v. Bancroft (114 Mich. 
 
 241) 182 
 
 Atlanta v. Buchannan (76 Ga. 
 
 585) 207 
 
 V. Perdue (53 Ga. 607) 20, 210 
 V. Wilson (59 Ga. 544) 172, 193 
 Attaway v. Cartersville (68 Ga. 
 
 740) 88 
 
 Attwood V. Bangor (83 Me. 582) 259 
 
 Augusta V. Cone (91 Ga. 714) 188 
 
 V. Hafers (59 Ga. 151) 151 
 
 V. Hafers (61 Ga. 48) 201, 250 
 
 V. Hudson (94 Ga. 135) 72, 73, 
 
 80, 86, 172 
 
 Aurora v. Bitner (100 Ind. 396) 20 
 
 V. Brown (12 111. App. 122) 250 
 
 V. Colshire (55 Ind. 484) 129 
 
 t>. Dale (90 111. 46) 232, 235 
 
 u. Hillman (90 III. 61) 20, 205, 
 
 234 238 
 
 W.Love (93 III. 521) '262 
 
 V. Parks (21 111. App. 459) 161, 
 
 163 
 
 V. Pulfer (56 III. 270) 97, 137 
 
 V. Keed (57 III. 29) 104 
 
 V. Rockabrand (149 111. 399) 
 
 195, 199 
 V. Seidelman (34 III. App. 
 285) 150, 229 
 
 Austin V. Colgate (27 S. W. Eep. 
 
 896) 204, 207 
 
 ^. Ritz (72 Tex. 391) 130, 134, 
 143, 145, 202, 221 
 Ayer v. Norwich (39 Conn. 376) 
 
 156, 157 
 Ayres v. Hammondsport (130 N.Y. 
 665) 169 
 
 Page 
 Baecook v. Buffalo (1 Sheld. 317) 304 
 i: Guilford (47 Vt. 519) 243, 245 
 Babson v. Rockport (101 Mass. 93) 167 
 Bacon v. Boston (3 Cush. 174) 252 
 V. Boston (154 Mass. 100) 270 
 Bagley v. Ludlow (41 Vt. 425) 138, 
 
 139 
 Bailey v. Centerville (108 la. 20) 253 
 V. Everett (132 Mass. 441) 247 
 V. Lawrence County (5 S. 
 
 Dak. 393) 6, 107 
 
 V. New York (3 Hill, 531) 11, 18, 
 
 26, 28, 51, 66 
 
 V. Spring Lake (61 Wis. 227) 202 
 
 Baker v. Boston (12 Pick. 184) 304 
 
 V. Grand Rapids (111 Mich. 
 
 447) 200, 203, 224, 225, 231 
 u. North East Borough (151 
 
 Pa. St. 234) 157 
 
 V. Portland (58 Me. 199) 125 
 Baldwin v. Springfield (141 Mo. 
 
 205) 128, 151 
 
 Ball V. Winchester (32 N. H. 435) 47, 
 
 121 
 
 V. Woodbine (61 la. 83) 12, 13, 
 
 30, 314 
 
 Baltimore v. Holmes (39 Md. 243) 236 
 
 V. Marriott (9 Md. 160) 109 
 
 V. Merryman (86 Md. 584) 283 
 
 V. Pendleton (15 Md. 12) 18, 140, 
 
 150, 177 
 
 V. Poultney (25 Md. 107) 290, 295 
 
 Baltimore County v. Baker (44 
 
 Md. 1) 4, 108 
 
 Bamber u. Rochester (26 Hun, 
 
 587) 42, 310 
 
 Bannagan v. District of Columbia 
 
 (2 Mackey, 285) 15, 259 
 
 Barber v. Essex (27 Vt. 62) 231 
 
 V. Roxbury (11 Allen, 318) 154, 
 
 156 
 
 Barbour v. Ellsworth (67 Me. 294) 310 
 
 Barbour County v. Horn (48 Ala. 
 
 566) 4 
 
 Barden v. Portage (79 Wis. 126) 286 
 Barnes v. Chicopee (138 Mass. 
 
 67) 193, 194 
 
 V. District of Columbia (91 
 
 U. S. 540) 3, 8, 19, 28, 110 
 V. Marcus (96 la. 675) 226 
 
 V. Newton (46 la. 567) 132, 203 
 Barnett v. Contra Costa County 
 
 (67 Cal. 77) 5 
 
 Barney v. Lowell (98 Mass. 570) 47 
 Barns v. Hannibal (71 Mo. 499) 286 
 Barr v. Kansas City (105 Mo. 550) 
 
 182, 203, 223, 224 
 Barrett v. Hammond (87 Wis. 
 654) 216 
 
TABLE OP CASES. 
 
 IX 
 
 Barron v. Chicago, etc. R. Co. (89 
 
 Wis. 79) 84 
 
 Barry v. Lowell (8 Allen, 127) 265, 
 
 272 
 
 V. St. Louis (17 Mo. 12-1) 55, 140 
 
 Barstow v. Berlin (34 Wis. 357) 211 
 
 Bartle v. Des Moines (38 la. 4 14) 28, 
 
 241 
 Bartlett v. Clarksburg (45 W. 
 
 Va. 393) 34 
 
 V. Crozier (17 Johns. 439) 6 
 
 u. Hooksett (48 N. H. 18) 156, 
 
 157, 1S8 
 
 V. Kittery (68 Me. 358) 201, 208 
 
 Barton v. Montpelier (30 Vt. 650) 170 
 
 (..Springfield (110 Mass. 131) 233 
 
 u. Syracuse (36 N. Y. 54) 19, 263, 
 
 265 
 
 Bartram v. Sharon (71 Conn. 686) 
 
 118, 167, 170, 230 
 
 Bassett v. St. Joseph (53 Mo. 200) 18, 
 
 134, 151, 169, 170, 
 
 193, 236 
 
 Bates V. Westborough (151 Mass. 
 
 174) 265 
 
 Batty V. Duxbury (24 Vt. 155) 151 
 Bauer v. Indianapolis (99 Ind. 56) 
 
 251, 252 
 Baxter v. Cedar Eapids (103 la. 
 
 599) 212, 226 
 
 (,. Winooski Turnpike Co. 
 (22 Vt. 114) 7, 107, 111 
 
 Beall V. Athens Tp. (81 Mich. 
 
 586) 158, 165 
 
 Beardsley v. Hartford (50 Conn. 
 
 529) 126, 151, 190, 192 
 
 Beaton w. Milwaukee (97 Wis. 416) 162 
 Beaudean v. Cape Girardeau (71 
 
 Mo. 392) 127, 128 
 
 Beazan u. Mason City (58 la. 
 
 233) 109 
 
 Bedell v. Sea CliEE (18 N. Y. App. 
 
 IMv. 261) 
 Bell V. West Point (51 Miss. 262) 
 
 279 
 18, 
 109 
 162 
 
 V. York (31 Neb. 842) 
 Belleville v. Hoffman (74 111. App. 
 
 503) 169, 172 
 
 Beltz v. Yonkers (148 N. Y. 67) 
 
 139, 180 
 Bemis v. Arlington (114 Mass. 
 
 507) 159, 167 
 
 Bennett v. Fifield (13 R. L 139) 157 
 (.. New Orleans (14 La. An. 
 120) 12, 98 
 
 Benson v. Madison (101 Wis. 312) 
 
 244, 246 
 Benware v. Pine Valley (53 Wis. 
 527) 243 
 
 Page 
 Berrenberg v. Boston (137 Mass. 
 
 231) 253 
 
 Bieling v. Brooklyn (120 N. Y. 98) 152 
 Bigelow V. Randolph (14 Gray, 
 
 541) 7, 9 
 
 V. Rutland (4 Gush. 247) 223, 224 
 V. Weston (3 Pick. 267) 137, IBO 
 Biggs V. Huntington (32 W. Va. 
 
 55) 113, 193 
 
 Bill V. Norwich (39 Conn. 222) 207, 
 
 210 
 Billings i'. Worcester (102 Mass. 
 
 329) 141, 162, 203 
 
 Bills V. Kaukauna (94 Wis. 310) 
 
 136, 196, 198, 224, 
 231, 237 
 Birmingham «. Lewis (92 Ala. 
 
 352) 150, 186, 241 
 
 V. McCary (84 Ala. 469) 150, 223 
 
 u. Starr (112 Ala. 98) 224 
 
 Bishop V. Centralia (49 Wis. 669) 126 
 
 u. Goshen (120 N. Y. 337) 110, 
 
 163 
 
 V. Macon (7 Ga. 200) 300 
 
 V. Schuylkill (8 Atl. Rep. 449) 20 
 
 Bitting V. Maxatawny Tp. (177 
 
 Pa. St. 213) 79, 80, 81, 86 
 
 Black V. Columbia (19 S. C. 412) 13, 
 
 14 
 Blair v. Pelham (118 Mass. 420) 251, 
 
 255 
 Blaisdell v. Portland (39 Me. 113) 
 
 131, 1.32 
 Blake v. Lowell (143 Mass. 296) 201, 
 
 254 
 
 V. Newfield (68 Me. 365) 142, 143 
 
 V. St. Louis (40 Mo. 569) 18, 109, 
 
 119 
 
 Blank v. Livonia Tp. (79 Mich. 1) 81, 
 
 88, 93, 94, 95 
 
 Blessington v. Boston (153 Mass. 
 
 409) 177 
 
 Bliss V. South Hadley (145 Mass. 
 
 91) 122 
 
 Blizzard u. Danville (175 Pa. St. 
 
 479) 266, 282 
 
 Blodgett V. Boston (8 Allen, 237) 122, 
 
 123 
 
 V. Syracuse (36 Barb. 562) 298 
 
 Blood V. Bangor (66 Me. 154) 265 
 
 V. Tyngsborough (103 Mass. 
 
 509) 224, 235 
 
 Bloomington v. Annett (16 111. 
 
 App. 199) 212 
 
 V. Bay (42 111. 503) 18, 126, 169, 
 
 170 
 
 V. Brokaw (77 111. 194) 104, 274 
 
 u. Costello (65 111. App. 407) 270, 
 
 287 
 
TABLE OP CASES. 
 
 Page 
 Bloor V. Delafleld (69 Wis. 273) 157, 
 158, 182, 206 
 Bluffton V. Matlien-s (92 Ind. 
 
 213) 165 
 
 Ely V. Haverhill (110 Mass. 520) ' 
 
 IBO, 237 
 Blyhl u. Waterville (57 Minn. 
 
 115) 147, 176 
 
 Bogie V. Waupun (75 Wis. 1) 143 
 
 Bohan v. Avoca Borough (154 
 
 Pa. St. 404) 279 
 
 Bohen «. Waseca (32 Minn. 176) 18, 
 
 152, 154 
 
 Boltz V. Sullivan (101 Wis. 608) 137, 
 
 144 
 Bond V. Biddeford (75 Me. 538) 253, 
 
 254 
 Bonebrake v. Huntington County 
 
 (141 Ind. 62) 71, 77 
 
 Bonine v. Richmond (75 Mo. 4.37) 201 
 Boone County v. Mutchler (137 
 
 Ind. 140) 76, 80, 86, 92 
 
 Borst 0. Sliaron (24 N. Y. App. 
 
 Div. 599) 242, 243 
 
 Boucher v. New Haven (40 Conn. 
 
 456)' 150, 188, 189, 202 
 
 Bouga V. Weare Tp. (109 Mich. 
 
 520) 235 
 
 Boulder v. Niles (9 Col. 415) 18, 109, 
 200, 219 
 Bourget v. Cambridge (159 Mass. 
 
 388) 208 
 
 V. Cambridge (156 Mass. 391) 154 
 
 Bowditch V. Boston (101 U. S. 16) 302 
 
 Bowes V. Boston (155 Mass. 344) 159 
 
 Bowman v. New ()rleans (27 La. 
 
 An. 501) 274 
 
 V. Omaha (59 Neb. 84) 61 
 
 Boyd o. Insurance Patrol (113 
 
 Pa. St. 269) 45 
 
 Boye V. Albert Lea (74 Minn. 
 
 230) 25 
 
 Boyland i: New York (1 Sandf. 
 
 27) 314 
 
 Brabham v. Hinds County (54 
 
 Miss. 363) 6 
 
 Brackenridge v. Fitchhurg (145 
 
 Mass. 160) 222 
 
 Bradbury v. Benton (69 Me. 194) 
 
 129, 248 
 V. Falmouth (18 Me. 64) 219 
 
 Bradford o. Anniston (92 Ala. 
 
 349) 181, 182, 205 
 
 BranchK.Libbey (78Me. 321) 251 
 Brant v. Plumer (04 la. 33) 120 
 
 Brayton v. Fall River (113 Mass. 
 
 218) 279,289 
 
 Breed V. Lynn (126 Mass. 367) 305 
 Bremner v. Newcastle (83 Me. 415) 251 
 
 Page 
 Brendlinger v. New Hanover 
 
 Tp. (148 Pa. St. 93) 141,236 
 
 Brennan v. St. Louis (92 Mo. 482) 
 
 132, 151, 169 
 Brightman v. Bristol (65 Me. 426) 
 
 294, 298, 299 
 Brinkmeyer v. Evansville (29 Ind. 
 
 187) 13, 36 
 
 British Cast Plate Co. v. Meredith 
 
 (4 T. R. 794) 98 
 
 Britton v. Cumiiiington (107 Mass. 
 
 347) 122, 175, 223 
 
 Broadwell K.Kansas City (75 Mo. 
 
 213) 55 
 
 Broburg v. Des Moines (63 la. 
 
 523) 161, 163, 214 
 
 Bronson v. Southbury (37 Conn. 
 
 199) 228 
 
 V. Wallingford (54 Conn. 513) 276 
 Brooks V. Petersham (16 Grav, 
 
 181) 2-iO, 253 
 
 V. Somerville (106 Mass. 271) 203 
 Brooksville v. Arthurs (130 Pa. 
 
 St. 501) 110 
 
 Brower v. New York (3 Barb. 254) 60 
 
 Brown v. Atlanta (66 Ga. 71) 20 
 
 u. Glasgow (57 Mo. 156) 171 
 
 V. Jefferson County ( 16 la. 
 
 339) 4 
 
 V. Laurens County (38 S. C. 
 
 282) 174 
 
 V. Lawrence (120 Mass. 1) 130 
 .;. Mount Holly (69 Vt. 364) 213 
 </. Skowhegan (82 Me. 273) 118, 
 121, 142 
 V. Southbury (53 Conn. 212) 247 
 V. Swanton (69 Vt. 5-3) 208 
 
 V. Vinalhaven (65 Me. 402) 6, 42 
 Brown County t. Butt (2 Oh. 
 
 Rep. 348) 6 
 
 Browning v. Owen County (44 
 
 Ind. 11) 31 
 
 V. Springfield (17 111. 143) 18, 109 
 Brownlee v. Alexis (39 111. App. 
 
 135) 215 
 
 Brunswick v. Braxton (70 Ga. 
 
 193) 202 , 
 
 Brusso V. Buffalo (90 N. Y. 679) 196, 
 203 225 
 Bryant v. Biddeford (39 Me. 193)'l39, 
 
 144 
 
 a. Randolph (1.33 N. Y. 70) 196 
 
 ,,. St. Paul (33 Minn. 289) 28, 33, 
 
 42, 310 
 
 Buck V. Biddeford (82 Me. 433) 203 
 
 V. Glens Falls (4 N. Y. App. 
 
 Div. 323) 162 
 
 Bullock V. Durham (64 Hun, 380) 86, 
 
 94 
 
TABLE OF CASES. 
 
 XI 
 
 Page 
 Bunch V. Edenton (90 N. C. 431) 110, 
 190, 193 
 Bunker v. Gouldsboro (81 Me. 
 
 188) 207 
 
 Bureau Junction v. Ijong (56 111. 
 
 App. 458) 171, 191 
 
 Burford v. Grand Rapids (53 
 
 Mich. 08) 156 
 
 V. New York (26 N. Y. App. 
 
 Div, 225) 249 
 
 Burleson v. Reading (110 Mich. 
 
 512) 181 
 
 Burnhara v. Boston (10 Allen, 
 
 290) 198 
 
 Burns u. Bradford (137 Pa. St. 
 
 361) 178, 202, 214 
 
 V. Elba (32 Wis. 605) 176, 223, 
 238, 241 
 V. Farmington (31 N. Y. App. 
 
 Div. 364) 157 
 
 V. Schenectady (24 Hun, 10) 250 
 J!. Yonkers (83Hun, 211) 193 
 Burr V. Leicester (121 Mass. 
 
 241) 100 
 
 V. Plymouth (48 Conn. 460) 145 
 Burrell Tp. v. Uncapher (117 Pa. 
 
 St. 353) 108, 193 
 
 Burrill « Augusta (78 Me. 118) 45 
 Burritt v. New Haven (42 Conn. 
 
 174) 97 
 
 Burrows v. Lake Crystal (61 
 
 Minn. 3,57) 254 
 
 Burton v. Chattanooga (7 Lea, 
 
 739) 279 
 
 Bush V. Dubuque (69 la. 233) 304 
 V. Portland (19 Oreg. 45) 276 
 Butchers', etc. Co. v. Philadelphia 
 
 (156Pa. St. 54) 269,306 
 
 Butler V. Bangor (67 Me 385) 150, 
 
 196 
 V. Edgewater (6 N. Y. Supp. 
 
 174) 288 
 
 V. Malvern (91 la. 397) 253 
 
 <;. Oxford (69 Miss. 618) 212 
 
 V. Worcester (112 Mass. 541) 287 
 
 Buttrick v. Lowell (1 Allen, 172) 31, 
 
 38, 39, 40 
 
 Byerly v. Anamosa (79 la. 2041 170, 
 
 223 
 Byrne v. Farmington (64 Conn. 
 
 367) 275 
 
 Byrnes v. Cohoes (67 N. Y. 204) 258, 
 
 279 
 
 Cain r. Syracuse (95 N. Y. 83) 13, 
 36, 307, 308, 313 
 Cairncross v. Pewaukee (78 Wis. 
 
 66) 157, 158 
 
 V. Pewaukee (86 Wis. 181) 208 
 
 Calder v. Walla Walla (6 Wash. 
 
 377) 162, 164 
 
 Caldwell v. Prunelle (57 Kan. 511) 39 
 Calkins u. Hartford (33 Conn. 
 
 57) 251 
 
 Callender v. Marsh (1 Pick. 418) 98 
 Calvert County v. Gibson (36 
 
 Md. 229) 4, 108 
 
 Calwell 0. Boone (51 la. 687) 31, 38, 
 
 40 
 Campbell v. Fair Haven (54 Vt. 
 
 336) 202 
 
 V. Kalamazoo (80 Mich. 655) 
 
 209, 215 
 
 K. Montgomery (53 Ala. 527) 12. 
 
 38, 155, 299 
 
 V. Stillwater (32 Minn. 308) 172, 
 
 187 
 
 Canavan v. Oil City (183 Pa. St. 
 
 611) 148, 149, 178, 199 
 
 Canterbury v. Boston (141 Mass. 
 
 215) 244 
 
 Canton v. Dewey (71 111. App. 
 
 346) 195 
 
 Cantwell u. Appleton (71 Wis. 
 
 463) 226 
 
 Card V. Ellsworth (65 Me. 547) 156, 
 157, 158, 165 
 Carey v. Hubbardston (172 Mass. 
 
 106) 143 
 
 Carleton t'. Caribou (88 Me. 461) 86 
 Carlisle v. Brisbane (113 Pa. St. 
 
 544) 231 
 
 Carll V. Northport (11 N. Y. App. 
 
 Div. 120) 258 
 
 Carniichael v. Texarkana (94 Fed. 
 
 Rep. 561) 270 
 
 Carney v. Marseilles (136 111. 401) 90, 
 
 Carr v. Ashland (62 N. H. 665) 245 
 V. Northern Liberties (35 Pa. 
 St. 324) 12, 15, .36, 98, 2.57, 
 271 
 Carrington v. St. Louis (89 Mo. 
 
 208) 41, 20ii, 212, 218 
 
 Carroll v. Allen (20 R. I. 541) 212, 
 
 218 
 V. St. Louis (4 Mo. App. 191) 36 
 Carroll County v. Bailey (122 
 
 Ind 46) 5 
 
 Carswell v. Wilmington (2 Marv. 
 
 360) 150 
 
 Carter v. Monticello (68 la. 178) 205, 
 
 217 
 V. Wilds (8 Houst. 14) 5 
 
 Carterville v. Cook (129 HI. 152) 169 
 Cartright v. Belmont (58 Wis. 
 
 370) l.SO, 145 
 
 Case V. Waverly (36 la. 545) 109, 140 
 
Xll 
 
 TABLE OF CASES. 
 
 Cason V. Ottumwa (102 la. 99) 206 
 Cassedy v. Stoukbridge (21 Vt. 
 
 391) 1.39, 144 
 
 Cavanagh v. Boston (139 Mass. 
 
 426) 32 
 
 Centerville v. Woods (57 Ind. 
 
 192) 18 
 
 Centralia v. Krouse (64 111. 19) 20 
 Chaeey v. Fargo (5 N. Dak. 173) 215 
 Cliadbourne v. Newcastle (48 
 
 N. H. 196) 295, 296, 298 
 
 Chadron v. Glover (43 Neb. 732) 133 
 Chalkley y. Richmond (88 Va. 
 
 402) 266 
 
 Chamberlain v. Enfield (43 N. H. 
 
 356) 156, 157, 159 
 
 V. Oshkosh (84 Wis. 289) 162 
 Champaign v. Mclnnis (26 111. 
 
 App. 338) 1.32 
 
 V. Patterson (50 111. 61) 18, 129, 
 252 
 Champion v. Crandon (84 Wis. 
 
 405) 259, 278 
 
 Champlin v. Penn Yan (34 Hun, 
 
 33) 156, 158 
 
 Chandler v. Fremont County (42 
 
 la. 58) 72 
 
 Chapman v. Cook (10 R. I. 304) 191 
 V. Macon (55 Ga. 566) 213 
 
 V. Milton (31 W. Va. 384) 203 
 V. Nobleboro (76 Me. 427) 245 
 «. Rochester (HON. Y. 273) 
 
 270, 306 
 Chase v. Cleveland (44 Oh. St. 
 
 505) 162, 165 
 
 V. Lowell (149 Mass. 85) 154 
 
 Chatsworth v. Ward (10 111. App. 
 
 75) 201 
 
 Cheeney v. Brookfield (60 Mo. 
 
 53) 32 
 
 Chicago V. Apel (50 111. App. 
 
 132) 148 
 
 V. Babcock (143 111. 358) 221, 226 
 
 r. Crooker (2 111. App. 279) 211 
 
 u. Dermody (61 111. 431) 48, 55, 
 
 62 
 
 V. Fowler (60 111. 322) 154 
 
 V. Gallagher (44 111. 295) 147, 
 
 190, 195 
 
 V. Hesing (83 111. 204) 150, 228 
 
 V. Hoy (75 111. 530) 20, 156, 181, 
 
 182, 212 
 
 ■a. Joney (60 111. 383) 55 
 
 f.Keefe (114 111. 222) 109,124, 
 
 228 
 
 V. Langlass (66 111. 361) 147 
 
 V. Major (18 111. 349) 210 
 
 «. McCuUoch (10 III. App. 
 
 459) 211,219 
 
 Page 
 Chicago V. McDonald (57 111. 
 
 App. 250) 148 
 
 V. McGiven (78 111. 347) 20 
 
 V. McGraw (75 111. 566) 30, 52 
 D. McLean (133111. 148) 223 
 
 V. Powers (42 111. 169) 148, 253, 
 254 
 u. Richardson (75 111. App. 
 
 198) 160 
 
 V. Robbins (2 Black, 418) 19 
 
 V. Smith (48 III. 107) 162 
 
 Chidsey v. Canton (17 Conn 475) 5, 
 
 106, 111, 121 
 
 Child V. Boston (4 Allen, 41) 14, 18, 
 
 36, 259, 265 
 
 Childrey v. Huntington (34 W. 
 
 Va. 457) 166, 170 
 
 Childs V. Crawford County (176 
 
 Pa. St. 139) 83, 88, 90, 91, 93 
 
 Chope V. Eureka (78 Cal. 588) 264 
 Chosen Freeholders v. Hough (55 
 
 N. J. L. 628) 72, 87, 94 
 
 <;. Strader (18 N. J. L. 108) 72, 
 
 107 
 
 Churchill v. Beethe (48 Neb. 87) 275 
 
 Cincinnati v. Penny (21 Oh. St. 
 
 499) 102 
 
 Cincinnati, etc. R. Co. v. Cum- 
 
 minsville (14 Oh. St. 523) 102 
 
 Circleville v. Neuding (41 Oh. 
 
 St. 465) 151, 177, 225 
 
 u. Sohn (59 Oh. St. 285) 147 
 
 City V. Hays (93 Pa. St. 72) 31 
 
 Clancy v. Byrne (58 Barb. 449) 66 
 Clapp V. Ellington (51 Hun, 58) 77, 
 79,85 
 Clapper v. Waterford (62 Hun, 
 
 170) 241 
 
 Clark u. Adair County (79 Mo. 
 
 536) 6, 107 
 
 0. Barrington (41 N. H. 44) 169, 
 170, 171, 180 
 V. Commonwealth (4 Pick. 
 
 125) 142 
 
 V. Easton (146 Mass. 43) 47, 52 
 V. Epworth (66 la. 462) 109 
 
 ('. Lincoln County (1 Wash. 
 
 518) 7, 107 
 
 V. Lockporl (49 Barb. 580) 19 
 
 V. Manchester (62 N. H. 577) 111 
 
 ■0. Peckham (9 R. I. 455) 269 
 
 ... Peckham (lOR. L35) 270, 
 
 305 
 
 V. Richmond (83 Va. 355) 143, 
 
 191, 193 
 
 V. Saybrook (21 Conn. 313) 97 
 
 «. Syracuse (13 Barb. 32) 304 
 
 V. Wilmington (5 Harr. 243) 97, 
 
 105, 276 
 
TABLE OP CASES. 
 
 XIU 
 
 Page 
 Clark County u. Brod (3 Ind. 
 
 App. 585) 71,75,77,78 
 
 Claybargh v. Chicago (25 III. 535) 50 
 Clayton v. Brooks (150 111. 97) 232, 
 
 235 
 Clear Lake, etc. Co. v. Lake 
 
 County (45 Cal. 90) 293 
 
 Clenienue i: Auburn (66 N. Y. 
 
 334) 109 
 
 Cleveland v. King (132 D. S. 295) 
 
 177, 188 
 V. St. Paul (18 Minn. 279) 151, 
 204, 209, 210 
 Cline !; Crescent City R. Co. (41 
 
 La. An. 1031) 150 
 
 Cloughessey v. Waterbury (51 
 
 Conn. 405) _ 162, 246 
 
 Coan V. Marlborough (164 Mass. 
 
 206) 264 
 
 -Coates V. Canaan (51 Vt. 131) 234, 
 
 253 
 Cobb V. Standish (14 Me 198) 224 
 Coburn v. Bossert (13 Ind. App 
 
 359) 256 
 
 V. San Mateo County (75 Fed. 
 Rep. 520) 8 
 
 Codner v. Bradford (3 Cliand. 
 
 291) 130 
 
 Coffin V. Nantucket (5 Gush. 269) 302 
 Coggswell V. Lexington (4 Cusli. 
 
 307) 146, 192 
 
 Cohea v. Coffeeville (69 Miss. 561) 76, 
 
 91 
 Cohen u. New York (113 N. Y. 
 
 532) 110, 140, 190 
 
 Cole V. Kegler (64 la. 59) 303, 304 
 V. Medina (27 Barb. 218) 12, 36 
 Coley V. Statesville (121 N. C. 301) 38 
 CoUey V. Westbrook (57 Me. 181) 211 
 Collins V. Council Bluffs (82 la. 
 
 324) 163 
 
 V. Dorchester (6 Cush. 396) 251, 
 
 253 
 
 V. Macon (69 Ga. 542) 284 
 
 V. Philadelphia (93 Pa. St. 
 
 272) 15, 259 
 
 Columbus V. Ogletree (96 Ga. 177) 
 
 204, 206 
 V. Ogletree (102 Ga. 293) 206 
 V. Sims (94 Ga. 483) 148, 149 
 t!. Strassner (124 Iiid. 482) 205 
 V. Woolen Mills Co. (33 Ind. 
 435) 269, 287 
 
 Comanche v. Zettlemoyer (40 S. 
 
 W. Rep. 641) 278 
 
 Commissioners of Highways o. 
 
 Martin (4 Mich. 557) 6 
 
 Condict V. Jersey City (46 N. J. 
 L. 157) 43, 310 
 
 Page 
 
 Cones V. Benton County (137 Ind. 
 
 404) 5 
 
 Congdon u. Norwich (37 Conn. 
 
 414) 139, 160, 232, 234 
 
 Conlon V. St. Paul (70 Minn. 216) 147 
 Conniff v. San Francisco (67 Cal. 
 
 45) 283 
 
 Connors v. New York (11 Hun, 
 
 439) 13 
 
 Conrad v. Ithaca (16 N. Y. 158) 18, 
 
 112 
 Conway v. Beaumont (61 Tex. 10) 1 
 Cook V. Anamosa (66 la. 427) 21 
 
 V. Charlestown (13 Allen, 
 
 190) 159 
 
 t. Charlestown (98 Mass. 80) 159 
 
 V. Macon (54 Ga. 468) 38 
 
 V. Milwaukee (24 Wis. 270) 162, 
 
 164 
 
 V. Montague (115 Mass. 571) 159 
 
 V. New Durham (64 N. H. 
 
 419) 250 
 
 Cooley 1'. Freeholders of Essex 
 
 (27 N. J. L. 415) 6 
 
 Coombs V. Topsham (38 Me. 204) 167, 
 
 174 
 Cooper V. Mills County (t9 la. 350) 81, 
 
 82 
 
 V. Milwaukee (97 Wis. 458) 210, 
 
 213 
 
 Coots V. Detroit (75 Mich. 628) 57, 
 
 124, 125 
 
 Corbett v. Troy (53 Hun, 228) 163 
 
 Corcoran >'. Benicia (96 Cal. 1) 276 
 
 Corlett V. Leavenworth (27 Kan. 
 
 673) 236 
 
 Corsicanai;. White (57 Tex. 382) 38 
 Corts V. District of Columbia (18 
 
 D. C. 277) 236 
 
 Cotes V. Davenport (9 la. 227) 18, 50 
 Coulter V. Pine Tp. (164 Pa. St. 
 
 543) 77. 79 
 
 Covington v. Bryant (7 Bush, 248) 150 
 Covington County v. Kinney (45 
 
 Ala. 176) 4, 106 
 
 Cowley i: Sunderland (6 H.&N. 
 
 565) 60 
 
 Craig V. Charleston (180 111. 154) 39 
 
 V. Sedalia (63 Mo. 417) 18, 21, 
 
 29, 137, 139 
 
 Cramer v. Burlington (39 la. 512) 207 
 
 0. Burlington (42 la. 315) 2.38 
 
 Crawford u. Delaware (7 Oh. St. 
 
 459) 101, 102, 103 
 
 Crawfordsville v. Bond (96 Ind. 
 
 2.36) 258, 279 
 
 V. Smith (79 Ind. 308) 169, 172 
 Crites o. New Richmond (98 Wis. 
 55) 234 
 
XIV 
 
 TABLE OF CASES. 
 
 Cromarty v. Boston (127 Mass. 
 
 329) 138 
 
 Cronin v. Boston (135 Mass. 110) 244 
 Cross V. Elmira (86 Hun, 467) 245 
 Crossett u. Janesville (28 Wis. 
 
 420) 105 
 
 Crowell V. Sonoma County (25 
 
 Cal. 313) 5 
 
 Crystal v. Des Moines (65 la. 502) 
 
 1.35, 150, 195 
 Cullman v. McMinn (109 Ala. 
 
 614) 125 
 
 Culver V. Streator (130 111. 238) 40 
 Cumberland v. Willison (50 Md. 
 
 138) 30, 276 
 
 Cumberland, etc. Canal Co. v. 
 
 Portland (62 Me. 504) 52 
 
 Cumisky v. Kenosha (87 Wis. 286) 235 
 Cummings v. Hartford (70 Conn. 
 
 115) 188, 201, 206 
 
 V. New Rochelle (38 N. Y. 
 App. Div. 583) 226 
 
 Cummins v. Seymour (79 Ind. 
 
 491) 15, 105, 260, 264 
 
 Cunningham v. Denver (23 Col. 
 
 18) 201, 242 
 
 Curran v. Boston (151 Mass. 505) 59 
 Currier v. Concord (68 N. H. 294) 245 
 Curry v. Mannington (23 W. Va. 
 
 14) 110 
 
 Cushing u. Bedford (125 Mass. 
 
 526) 24, 160 
 
 Cuyler v. Rochester (12 Wend. 165) 30 
 
 Daggett ii. Cohoes (7 N. Y. 
 
 Supp. 882) 279 
 
 Daily v. Worcester (131 Mass. 
 
 452) 194 
 
 Dale V. Syracuse (71 Hun, 449) 226 
 V. Webster County (76 la. 
 
 370) 227 
 
 Dale County v. Gunter (46 Ala. 
 
 118) 299 
 
 Dallas V, Jones (54 S. W. Rep. 
 
 606) 177 
 
 V. Shultz (27 S. W. Rep. 202) 265 
 V. Webb (22 Tex. Civ. App. 
 
 48) 22-5, 264 
 
 Dalton V. Salem (131 Mass. 551) 2-17 
 V. Salem (136 Mass. 278) 244 
 w. Upper Tyrone Tp. (137 
 
 Pa. St. 18) 1.33 
 
 Damon v. Boston (149 Mass. 147) 
 
 140, 192 
 V. Scituate (119 Mass. 66) 126 
 Danaher v. Brooklyn (119 N. Y. 
 
 241) 68 
 
 Danbury, etc. R. Co. o. Norwalk 
 (37 Conn. 109) 279 
 
 Daniels v. Denver (2 Col. 669) 12, 257 
 
 V. Lebanon (58 N. H. 284) 223, 
 
 2i52 
 
 «. Lowell (139 Mass. 56) 253 
 
 w. Racine (98 Wis. 649) 111 
 
 Darganv. Mobile (31 Ala. 469) 39 
 
 Darling v. Bangor (68 Me. 108) 259 
 
 ■,. New York (18 Hun, 340) 162 
 
 V. Westmoreland (52 N. H. 
 
 401) 158 
 
 Darlington v. New York (31 N. Y. 
 
 164) 291 
 
 Davenport v. Ruckman (37 N. Y. 
 
 568) 19, 109, 225, 237 
 
 Davidson v. Portland (69 Me. 
 
 116) 126 
 
 Davis V. Ada County (47 Pac. 
 
 Rep. 93) 5, 106 
 
 V. Charlton (140 Mass. 422) 247 
 
 V. Corry (154 Pa. St. 598) 208, 
 
 213 
 
 V. Crawfordsville (119 Ind. 1) 
 
 276 
 V. Dudley (4 Allen, 557) 174 
 
 V. Guilford (55 Conn. 351) 181, 
 184,211 
 V. Hill (41 N. H. 329) 146, 190 
 j;. Jackson (61 Mich. 530) 31, 147 
 o. Leominster (1 Allen, 182) 118, 
 187 
 V. Longmeadow (169 Mass. 
 
 551) 165 
 
 V. Montgomery (51 Ala. 139) 12, 
 
 13, 36, 308, 
 
 314 
 
 V. Omaha (47 Neb. 836) 140, 1 77, 
 
 201 
 
 V. Rumney (67 N. H. 591 ) 246 
 
 Dawson v. Kuttner (48 Ga. 133) 303 
 
 Day !'. Milford (5 Allen, 98) 152 
 
 Dayton v. Pease (4 Oh. St. 80) 19, 26, 
 
 36, 50, 110 
 
 V. Taylor's Adm'r (62 Oh. St. 
 
 11) 182,225 
 
 Dean v. New Milford Tp. (5 W. 
 
 & S. 545) 108 
 
 Decatur v. Besten (169 111, 340) 201, 
 
 211,218,219 
 
 V. Stoops (21 Ind. App. 397) 150 
 
 Decker v. Scranton (151 Pa. St. 
 
 241) 162 
 
 Defer v. Detroit (67 Mich. 346) 278 
 Delaware County's Appeal (119 
 
 Pa. St. 159) 83 
 
 Delger v. St. Paul (14 Fed. Rep. 
 
 567) 19, 110 
 
 Delphi V. Evans (.36 Ind. 90) 105 
 
 V. Lowery (74 Ind. 520) 253, 254 
 
 Demby v. Kingston (60 Hun, 294) 306 
 
TABLE OP CASES. 
 
 XV 
 
 Page 
 
 Dempsey v. Rome (94 Ga. 420) 150, 
 212, 232, 235 
 Denison v. Sanford (2 Tex. Civ. 
 
 App. 661) 234 
 
 Denver v. Aaron (6 Col. App. 
 
 232) 202 
 
 V. Cape Hi (4 Col. 25) 14, 259, 265 
 V. Clements (3 Col. 484) 128 
 
 V. Dean (10 Col. 375) 205, 213 
 V. Dunsniore (7 Col. 328) 17, 109 
 V. Rhodes (9 Col. 554) 18, 20, 
 257, 262, 263, 265, 278 
 V. Sauloey (5 Col. App. 420) 
 
 243, 249 
 V. Sherret (88 Fed. Rep. 226) 
 
 189, 204, 22S 
 De Pere d. Hibbard (104 Wis. 
 
 666) 236 
 
 Detroit v. Beckman (34 Mich. 
 
 125) 12, 147 
 
 V. Blackeby (21 Mich. 84) 111, 
 
 112 
 
 V. Corey (9 Mich. 165) 18, 150, 
 
 264 
 
 V. Laughna (34 Mich. 402) 41 
 
 V. Putnam (45 Mich. 263) 118 
 
 Dewey v. Detroit (15 Mich. 307) 12, 
 
 201 
 Diamond Match Co. ». New Ha- 
 ven (55 Conn. 510) 14,287 
 Dickinson v. Rockingham (45 Vt. 
 
 99) 133 
 
 Diehra v. Cincinnati (25 Oh. St. 
 
 305) 312 
 
 Dillon V. Raleigh (124 N. C. 184) 169, 
 
 173 
 Dimocky. Suffield (30 Conn. 129) 
 
 156, 159 
 District of Columbia v, Crum- 
 baugh (13 App. Cas. 
 553) 232 
 
 V. Gray (1 App. Cas. 500) 262 
 V. Payne (13 App. Cas. 500) 
 
 201 219 
 
 V. Woodbury (136 IT. S. 450)'l41, 
 
 180,188, 197, 199,202,211 
 
 Dittrich v. Detroit (98 Mich. 245) 212 
 
 Dixon V. Baker (65 111. 518) 262 
 
 V. Board of Works (L. R. 7 
 
 Q. B. D. 418) 98 
 
 V. San Antonio (30 S. W. 
 
 Rep. 359) 213 
 
 Doan V. Willow Springs (101 Wis. 
 
 112) 221, 2.35 
 
 Dodge 17. Granger (17 R. I. 664) 44 
 Doherty v. Walthara (4 Grav, 
 
 696) 150, 197 
 
 Donahoeii. Kansas City (136 Mo. 
 657) 264 
 
 Donaldson <}. Boston (16 Gray, 
 
 508) 207, 217 
 
 Donnelly i'. Fall River (132 Mass. 
 
 299) 243, 244, 245 
 
 r. Tripp (12 R.I. 97) 30 
 
 Donoghue v. Philadelphia County 
 
 (2 Pa. St. 230) 297 
 
 Donoho V. Vulcan Iron Works 
 
 (75 Mo. 401 ) 124 
 
 Donovan v. Board of Education 
 
 (85N. y. 117) 311 
 
 Dooleyj). Meriden(44Conn. 117) 162 
 
 V. Sullivan (112 Ind. 451) 150, 
 
 189, 197, 201 
 
 Dore V. Milwaukee (42 Wis. 108) 98 
 
 Dorlon v. Brooklyn (46 Barb. 
 
 604) 204 
 
 Dortnan v. Jacksonville (13 Fla. 
 
 638) 97 
 
 Dorn V. Oyster Bay (84 Hun, 
 
 610) 212 
 
 Dosdall V. Olmsted County <30 
 
 Minn. 96) 6 
 
 Doster v. Atlanta (72 Ga. 233) 41 
 Dotton V. Albion (50 Mich. 129) 208, 
 
 219 
 Dougherty v. Horaeheads (159 
 
 N. Y. 154) 143, 149 
 
 Doulon V. Clinton (33 la. 397) 21,214 
 Dowd V. Chicopee (116 Mass. 93) 
 
 139, 228 
 Downend v. Kansas City (71 Mo. 
 
 App. 529) 132 
 
 Downes v. Hopkinton (67 N. H. 
 
 456) 139 
 
 Downing v. Mason County (87 
 
 Ky. 208) 5 
 
 Drake v. Lowell (13 Met. 292) 152 
 Drew V. Sutton (55 Vt. 686) 144, 191, 
 193, 225 
 Drury v. Worcester (21 Pick. 44) 132 
 Dubois a. Kingston (102 N. Y. 
 
 219) 149, 221 
 
 Dubuque Fern. College v. Du- 
 buque (13 la. 555) .30 
 Dudley v. Weston (1 Met. 477) 254 
 Duffy V. Baltimore (Taney C. C. 
 
 200) 294, 295 
 
 W.Dubuque (63 la. 171) 124 
 
 Duke v. Rome (20 Ga. 635) 12, 14 
 
 Dunbar r. Boston (112 Mass. 75) 46 
 
 V. San Francisco (1 Cal. 355) .300 
 
 Dundasy. Lansing (75 Mich. 499) 205, 
 
 215 
 Dunn !■. Barnwell (43 S. C. 398) 159 
 Durkee v. Kenosha (59 Wis. 123) 47 
 Duryea v. New York (10 Daly, 
 
 300 295 
 
 Dutton V. Weare (17 N. H. 34) 160 
 
XVI 
 
 TABLE OP CASES. 
 
 Dwight V. Hayes (150 111. 273) 287 
 Dwyer v. Salt Lake City (19 
 Utah, 521) 234 
 
 Eads v. Marshall (29 S. W. Rep. 
 
 170) 173 
 
 East Dubuque u. Burhyte (173 
 
 111. 553) 224 
 
 Easterly v. Irwin (99 la. 694) 39 
 
 Eastman v. Meredith (36 N. H. 
 
 284) 9, 59, 61, 107 
 
 Easton v. Neff (102 Pa. St. 474) 12, 
 97, 104, 221 
 East St. Louis v. Giblin (3 111. 
 
 App. 219) 54 
 
 Edgerly v. Concord (59 N. H. 78) 156 
 Edniondson v. Moberly (98 Mo. 
 
 523) 261, 270, 306 
 
 Edwards v. Three Rivers (96 
 
 Mich. 625) 205 
 
 V. Worcester (172 Mass. 104) 239 
 Ehrgott V. New York (96 N. Y. 
 
 264) 19 
 
 Eikenberry v. Township of Bazaar 
 
 (22 Kan. 556) 3, 5, 107 
 
 Elgin V. Renwick (86 111. 498) 231 
 Elgin Hydraulic Co. v. Elgin (74 
 
 111. 433) 269 
 
 Elliott ... Oil City (129 Pa. St. 
 
 570) 279 
 
 u. Philadelphia (75 Pa. St. 
 347) 30, 38, 39, 52 
 
 Ellis V. Iowa City (29 la. 229) 18, 263 
 El Paso V. Causey (1 111. App, 
 
 531) 63 
 
 El Paso County o. Bish (18 Col. 
 
 474) 2, 5, 106 
 
 Elster V. Seattle (18 Wash. 304) 214, 
 250, 254 
 Ely V. Niagara County (.36 N. Y. 
 
 297) 294, 297, 298 
 
 Emerson v. Newbury (13 Pick. 
 
 377) 30 
 
 Emery v. Lowell (104 Mass. 13) 266, 
 
 278 
 Emporia v. Schmidling (33 Kan. 
 
 485) 180, 233 
 
 Engstrom v. Minneapolis (78 
 
 Minn. 200) 242 
 
 Erd V. St. Paul (22 Minn. 443) 233, 
 
 253 
 
 Erie v. Caulkins (85 Pa. St. 247) 55 
 
 V. Schwingle (22 Pa. St. 384) 19, 
 
 21, 22, 110, 2.33, 241 
 
 Esberg Cigar Co. v. Portland (34 
 
 Oreg. 282) 28, 51 
 
 Eudoraj;. Miller (80 Kan. 494) 72 
 Eufaula v. Simmons (86 Ala. 515) 278, 
 
 279 
 
 Evans v. Huntington (37 W. Va. 
 
 601) 20,S 
 
 Evanston v. Gunn (99 U. S. 660) 19, 
 
 21,22, 110,241 
 
 Evansville v. Decker (84 Ind. 325) 15, 
 
 258, 260, 262, 263, 
 
 269 
 
 V. Senhenn (151 Ind. 42) 201, 
 
 228, 229 
 
 Eveleigh v. Hounsfield (34 Hun, 
 
 140) 22 
 
 Everson v. Syracuse (100 N. Y. 
 
 577) 30, 46 
 
 Ewing V. North Versailles Tp. 
 
 (146 Pa. St. 309) 193 
 
 Eyler v. Alleghany County (49 
 Md. 257) 4 
 
 Fahey v. Harvard (62 111. 28) 20, 201 
 Fair v. Philadelphia (88 Pa. St. 
 
 309) 13, 15, 259 
 
 Fairlawn Coal Co. v. Scranton 
 
 (148 Pa. St. 231) 262 
 
 Falls Tp. V. Stewart (3 Kan. App. 
 
 403) 233 
 
 Farley v. New York (162 N. Y. 
 
 222) 124, 125, 206 
 
 Farman v. Ellington (46 Hun, 41 ) 182 
 Farnsworth v. Mount Holly (63 
 
 Vt. 293) 245 
 
 Farnum v. Concord (2 N. H. 392) 6, 
 107, 111, 236 
 Farquar u. Roseburg (18 Oreg. 
 
 271) 19, 110 
 
 Farrar v. Greene (32 Me. 674) 167 
 
 Farrell v. Oldtown (69 Me. 72) 158, 
 
 201, 208 
 
 Fassett v. Roxbury (65 Vt. 652) 245, 
 
 248 
 Faulk V. Iowa County (103 la. 
 
 442) 215 
 
 Faulkner v. Aurora (85 Ind. 130) 12, 
 13, 156 
 Fauvia v. New Orleans (20 La. 
 
 An. 410) 290, 293, 295 
 
 Fellowes v. New Haven (44 Conn. 
 
 240) 97 
 
 Fennimore v. New Orleans (20 
 
 La. An. 124) 48, 65 
 
 Ferguson v. Davis County (57 la. 
 
 601) 4, 83, 91, 95 
 
 V. Selma (43 Ala. 398) 303 
 
 Field V. Albemarle County (20 S. 
 
 E. Rep. 954) 7 
 
 ... Des Moines (39 la. 575) 300, 
 301 
 Finch V. Board of Education (30 
 
 Oh. St. 37) 6, 311 
 
 Finn v. Adrian (93 Mich. 504) 227 
 
TABLE OP CASES. 
 
 XVU 
 
 Page 
 
 Fisclier Land, etc. Co. v. Bordelon 
 
 (52 La. An. 429) 5 
 
 Fisher v. Boston ( 104 Mass. 87) 42 
 Fisk V. Havana (88 111. 208) 128 
 
 Fitz V. Boston (4 Gush. 365) 184 
 
 Fitzgerald v. Berlin (51 Wis. 81) 151 
 V. Woburn (109 Mass. 204) 162 
 Fitzpatrick v. Darby (184 Fa. St. 
 
 645) 202, 213 
 
 Flagg V. Hudson (142 Mass. 280) 168 
 
 V. Worcester (13 Gray, 601) 98, 
 
 105, 275 
 
 Flanders v. Norwood (141 Mass. 
 
 17) 141, 176, 180 
 
 Fleming!;. Springfield (154 Mass. 
 
 520) 219 
 
 Fletcher v. Barnet (43 Vt. 192) 169, 
 
 170 
 
 a. Ellsworth (53 Kan. 751) 150 
 
 Flora V. Naney (136 111. 45) 132, 184, 
 
 234 
 Flori V. St. Louis (69 Mo. 341) 61, 64 
 Floria v. Galreston County (55 
 
 S. W. Rep. 540) 7 
 
 Flynn v. Neosho (114 Mo. 567) 233 
 D. Salem (134 Mass. 351) 56 
 
 Foels V. Tonawanda (75 Hun, 
 
 .363) 91, 94, 212 
 
 Fogg V. Nahant (98 Mass. 578) 174 
 FoUman v. Mankato (35 Minn. 
 
 522) 231 
 
 FoUmann v. Mankato (46 Minn. 
 
 457) 275 
 
 Fopper V. Wheatland (59 Wis. 
 
 623) 145, 245 
 
 Forbes v. Lee Conservancy Board 
 
 (4 Exch. Div. 116) 13 
 
 Ford 0. Kendall School District 
 
 (121 Pa. St. 543) 6 
 
 V. Umatilla County (15 Oreg. 
 313) 202 
 
 Fordham v. Gouverneur Village 
 
 (IbON. Y. 541) 250 
 
 Forks Tp. V. King (84 Pa. St. 230) 236 
 Forsyth v. Atlanta (45 Ga. 152) 13, 314 
 Fortin v. Easthampton (145 Mass. 
 
 196) 212 
 
 Fort Smith v. York (52 Ark. 84) 111 
 Fortunich v. New Orleans (14 
 
 La. An. 115) 299 
 
 Fort Wayne v. Breese (123 Ind. 
 
 581) 232, 2.33 
 
 V. Coombs (107 Ind. 75) 258, 265, 
 
 267, 268 
 
 V. DeWitt (47 Ind. 391) 20, 140, 
 
 179, 201 
 
 ■V. Patterson (3 Ind. App. 34) 203 
 
 Fort Worth v. Crawford (64 Tex. 
 
 202) 13, 306 
 
 Fort Worth v. Shero (16 Tex. 
 
 Civ. App. 487) 248, 249 
 
 Foshay v. Glen Haven (25 Wis. 
 
 288) 157, 159 
 
 Foster v. Boston (127 Mass. 290) 207 
 v. Lookout Water Co. (3 Lea, 
 
 42) 13, 14 
 
 V. St. Louis (71 Mo. 157) 14, 258, 
 276 
 Fowle V. Alexandria (3 Peters, 
 
 398) 13 
 
 Fowler v. Gardner (169 Mass. 505) 187 
 
 0. Linquist (138 Ind. 666) 144, 
 
 169, 172 
 
 Fox V. Chelsea (171 Mass. 297) 236 
 
 V. Glastenbury (29 Conn. 204) 236 
 
 Fox worthy v. Hastings (25 Neb. 
 
 133) 133 
 
 Frankfort v. Coleman (19 Ind. 
 
 App. 368) 126, 210 
 
 Franklin v. Harter (127 Ind. 446) 237 
 Franklin Wharf Co. v. Portland 
 
 (67 Me. 46) 306 
 
 Freburg v. Davenport (63 la. 119) 97, 
 258, 274 
 Freeman v. Philadelphia (13 
 
 Phila. 154) 44 
 
 Freeport v. Isbell (83 111. 440) 12, 
 
 148, 149 
 
 French v. Boston (129 Mass. 592) 9 
 
 V. Brunswick (21 Me. 29) 154 
 
 V. Quincy (3 Allen, 9) 63 
 
 Fritsch v. Allegheny (91 Pa. St. 
 
 226) 19, 110, 157, 176, 179, 
 
 184, 218 
 
 Frohs V. Dubuque (109 la. 219) 250 
 
 Frost V. Portland (11 Me. 271) 137 
 
 V. Walthani ( 12 Allen, 85) 233 
 
 Frostburg y. Hitchins (70Md. 56) 
 
 263, 264 
 Fry r. Albemarle County (86 Va. 
 
 195) 7 
 
 Fuller V. Atlanta (66 Ga. 80) 97 
 
 V. Jackson (82 Mich. 480) 132, 
 
 205, 206, 216 
 
 Fulton County v. Rickel (106 
 
 Ind. 501) 5,80,82,107 
 
 Furnell v. St. Paul (20 Minn. 
 117) 18, 126, 133, 213 
 
 Gale v. Lisbon (52 N. H. 174) 126 
 Galveston v. Barbour (62 Tex. 
 
 172) 19 
 
 t/. Hemmis (72 Tex. 558) 124 
 
 V. Posnainsky (62 Tex. 118) 3, 9, 
 
 19, 110 
 
 V. Smith (80 Tex. 69) 202 
 
 Gamble v. St. Louis (12 Mo. 617) 128 
 
 Gardiner v. Camden (86 Me. 377) 275 
 
XVIU 
 
 TABLE OF CASES. 
 
 Page 
 Garlinghouse v. Jacobs (29 N. Y. 
 
 297) 21, 240 
 
 Garmany v. Gainesville (41 S. 
 
 W. Hep. 730) 207 
 
 Garratt v. Canandaigua (135 
 
 N. Y. 430) 259 
 
 Gaskins v. Atlanta (73 Ga. 746) 148, 
 
 165 
 Gavett y. Jackson (109 Midi. 408) 164 
 Gavin <,. Chicago (97 111. 60) 228 
 
 Gay V. Cambridge (128 Mass. 
 
 387) 243 
 
 Gaylord v. New Britain (58 Conn. 
 
 898) 162 
 
 George u. Haverhill (110 Mass. 
 
 506) 235, 252, 253 
 
 German Theological School v. 
 
 Dubuque (64 la. 786) 14, 262 
 
 Ghenn v. Proviucetown (105 
 
 Mass. 313) 139 
 
 Gianfortone v. New Orleans (61 
 
 Fed. Rep. 64) 299 
 
 Gibbes V. Beaufort (20 S. C. 213) 84 
 Gibson u. Johnson (4 111. App. 
 
 288) 161 
 
 Gibson County v. Emmerson (95 
 
 Intl. 679) 4 
 
 Giddings V. Ira (54 Vt. 346) 249 
 
 Gilbert v. Roxbury (100 Mass. 
 
 185) 162 
 
 Gilbrie u. Lockport (122 N. Y. 
 
 403) 162 
 
 Giles I'. Shenandoah (82 N. W. 
 
 Rep. 466) 242 
 
 Gilfeather v. Council Bluffs (69 
 
 la. 310) 274 
 
 Gillison U.Charleston (16 W. Va. 
 
 282) 279 
 
 Gilluly V. Madison (63 Wis. 518) 19, 
 
 278 
 Gilraan v. Deerfield (15 Gray, 
 
 577) 236, 240 
 
 V. Laconia (55 N. H. 1.30) 18, 285 
 Gilpatrick v. Biddeford (51 Me. 
 
 182) 130 
 
 Glantz V. South Bend (106 Ind. 
 
 305) 1.38, 140 
 
 Glasier v. Hebron (131 N. Y. 447) 
 
 176, 184, 195 
 Glidden v. Reading (38 Vt. 52) 225 
 Goble V. Kansas City (148 Mo. 
 
 470) 251 
 
 Goeltz V. Ashland (75 Wis. 642) 143 
 Gold V. Philadelphia (115 Pa. St. 
 
 184) 120 
 
 Golds worthy v. Linden (75 Wis. 
 
 24) 174 
 
 Gonzales v. Galveston (84 Tex. 3) 166, 
 
 169 
 
 Page 
 Goodfellow V. New York (100 
 
 N. Y. 15) 21, 140, 211 
 
 Goodin V. lies Moines (55 la. 67) 198 
 Goodno V. Oshkosh (28 Wis. 800) 210 
 Goodnough u. Oshkosh (24 Wis. 
 
 549) 202 
 
 Goodrich v. Chicago (20 111. 445) 12, 
 
 13 
 Goodwin v. Gardiner (84 Me. 278) 248 
 Gordon v. Richmond (83 Va. 
 
 486) 19, 225 
 
 Goshen v. Myers (119 Ind. 196) 129, 
 
 132 
 Gosport V. Evans (112 Ind, 133) 178, 
 233, 236 
 Goszler v. Georgetown (6 Wheat. 
 
 593) 98 
 
 Gould V. Topeka (32 Kan. 485) 16, 
 104, 147 
 Graham v. Albert Lea (48 Minn. 
 
 201) 126, 129, 133 
 
 V. Boston (156 Mass. 76) 122 
 
 ... Oxford (105 la. 705) 176, 184, 
 
 233, 234 
 
 Graney v. St. Louis (141 Mo. 180) 
 
 233 
 Granger v. Pulaski County (26 
 
 Ark. 37) 5, 106 
 
 Grant v. Erie (69 Pa. St. 420) 14 
 
 D. Fitchburg (160Mas8. 16) 228, 
 
 229 
 
 Gray v. Brooklyn (50 Barb. 365) 23 
 
 V. Danbury (54 Conn. 574) 84 
 
 Grayville v. Whitaker (85 111. 
 
 489) 139 
 
 Green v. Bridge Creek (38 Wis. 
 
 449) 191 
 
 V. Danby (12 Vt. 338) 145, 160 
 V. Portland (32 Me. 431) 190 
 
 V. Reading (9 Watts, 882) 98 
 !'. Savannah (6 Ga. 1) 303 
 
 Greenleaf v. Norridgwock (82 
 
 Me. 62) 242 
 
 Greensboro v. McGibbonv (93 
 
 Ga. 672) 109, 110 
 
 Greenwood «. Louisville (13 Bush, 
 
 226) 14, 44 
 
 Greer v. New York (3 Robt. 406) 299 
 
 Gregg V. Baltimore (66 Md. 256) 100 
 
 Gregory I). Adams (14 Gray, 242) 77, 
 
 78, 183 
 
 Griffin v. Auburn (58 N. H. 121) 234 
 
 </. Jolmson (84 Ga. 279) 210 
 
 a. New York (9 N. Y. 456) 36, 
 
 137, 201, 2.36 
 
 K.Sanbornton(44N.H.246) 120 
 
 V. Willow (43 Wis. 509) 221 
 
 Grimes v. Keene (52 N. H. 330) 61, 
 
 151 
 
TABLE OF CASES. 
 
 XIX 
 
 Page 
 Grogan v. Broadway Foundry 
 
 Co. (87 Mo. 321) 154 
 
 V. Worcester (140 Mass. 227) 247 
 Gross V. Lampasas (74 Tex. 195) 263. 
 Grove V. Fort Wayne (45 Iiid. 
 
 429) 18, 109, 153, 305 
 
 Grube v. St. Paul (34 Minn. 402) 44 
 Grumbine v. Washington (2 Mc- 
 
 Arthur, 578) 88 
 
 Gubasco V. New York (12 Daly, 
 
 183) 154 
 
 Gude V. Mankato (30 Minn. 256) 210, 
 
 215 
 Gulline v. Lowell (144 Mass. 491) 122 
 Gurney v. Roekport (93 Me. 360) 220 
 
 Haag w. Vanderburgh County (60 
 
 Ind. 511) 8, 306 
 
 Hagerstown v. Dechert (32 Md. 
 
 369) 296 
 
 y. Sehner (37 Md. 180) 291, 295 
 Haight V. New York (24 Fed. 
 
 Rep. 93) 311 
 
 Hnle V. Weston (40 W. Va. 313) 120 
 
 Hall V. Fond du Lac (42 Wis. 247) 218 
 
 u. Kansas City (54 Mo. 598) 224 
 
 ...Lowell (10 Cush. 260) 162 
 
 .,. Manchester (39 N. H. 295) 131 
 
 ^. Manson (90 la. 585) 231 
 
 V. Manson (99 la. 698) 195, 233 
 
 Halpin v. Kansas City (76 Mo. 
 
 335) 18, 109, 150 
 
 Ham V. New York (70 N. Y. 459) 33, 
 
 312 
 Hamilton u. Columbus (52 Ga. 
 
 435) 270 
 
 Hamilton County v. Mighels (7 
 
 Oh. St. 109) 2, 6 
 
 Hampson v. Taylor (15 R. I. 83) 169, 
 
 170, 223, 234, 
 
 239 
 
 Hand v. Brookline (126 Mass. 324) 8, 
 
 67 
 Handy v. Meridian Tp. (114 Mich. 
 
 454) 181, 210 
 
 Haniford v. Kansas City (103 Mo. 
 
 172) 140, 180, 189, 204 
 
 Hanlon v. Keokuk (7 la. 488) 2-35 
 Hannibal v. Campbell (86 Fed. 
 
 Rep. 297) 194 
 
 V. Richards (82 Mo. 380) 306 
 
 Hannon v. St. Louis County (62 
 
 Mo. 313) 7 
 
 Hansoom v. Boston (141 Mass. 
 
 242) 181, 201 
 
 Hanvey v. Rochester (35 Barb. 
 
 177) 52 
 
 Hardy v. Brooklyn (90 N. Y. 435) 260, 
 
 263 
 
 Hardy v. Keene (52 N. H. 370) 121, 
 
 123, 139, 154 
 
 V. Keene (54 N. H. 449) 127 
 
 Harmon v. Omaha (17 Neb. 548) 100 
 
 Harper u. Milwaukee (30 Wis. 
 
 365) 54, 121, 266, 270, 305 
 
 Harrigan v. Wilmington (8 Houst. 
 
 140) 260, 262, 265 
 
 Harriman v. Boston (114 Mass. 
 
 241) 151 
 
 Harrington v. Buffalo (121 N. Y. 
 
 147) 163, 202 
 
 Harris v. Atlanta (62 Ga. 290) 38 
 
 V. Clinton Tp. (64 Mich. 447) 190 
 
 V. Fond du Lac (104 Wis. 44) 249 
 
 V. Great Barrington (169 
 
 Mass. 271) 139,175 
 
 V. Newbury (128 Mass. 321) 243 
 j;. Townshend (56 Vt. 716) 246 
 Harrisburg v. Saylor (87 Pa. St. 
 
 216) 51 
 
 Hart V. Bridgeport (13 Blatch. 
 
 289) 32, 39, 291 
 
 V. Brooklyn (36 Barb. 226) 21 
 
 V. Red Cedar (63 Wis. 634) 129, 
 
 151, 196 
 
 Hartford County v. Hamilton (60 
 
 Md. 340) 108 
 
 Harwood v. Lowell (4 Cush. 310) 121, 
 
 165 
 V. Oakham (152 Mass. 421) 146 
 Haskell v. New Bedford (108 
 
 Mass. 208) 269, 289, 303, 
 306 
 v. New Gloucester (70 Me. 
 305) 190, 231, 232 
 
 Hausmann v. Madison (85 Wis. 
 
 187) 163 
 
 Hawes v. Fox Lake (33 Wis. 438) 121, 
 122, 143 
 Hawks V. Northampton (116 
 
 Mass. 420) 187 
 
 Hawxhurst y.New York (43 Hun, 
 
 588) 56> 87 
 
 Hayden v. Attleborough (7 Gray, 
 
 338) 130, 146, 192 
 
 r. Stone (112 Mass. 346) 128 
 
 Hayes v. Ca,mbridge (136 Mass. 
 
 402) 186 
 
 V. Hyde Park (153 Mass. 514) 168 
 
 V. Oshkosh (33 Wis. 314) 14, 44 
 
 u. West Bay City (91 Mich. 
 
 418) 205 
 
 Haygood v. Justices, etc. (20 Ga. 
 
 845) 5 
 
 Haynes v. Burlington (38 Vt. 350) 266, 
 
 ^ 283, 285 
 
 Haywood u. Charlestown (34 
 
 N. H. 23) 127 
 
XX 
 
 TABLE OP CASES. 
 
 Page 
 Hazard v. Council Bluffs (87 la. 
 
 51) 137 
 
 Healey v. New Haven (49 Conn. 
 
 394) 100 
 
 Hedges v. Madison County (6 111. 
 
 567) 5 
 
 Heigel v. Wichita County (84 
 
 Tex. 392) 70 
 
 Hein v. Fairchild (87 Wis. 258) 139 
 Heland v. Lowell (3 Allen, 407) 126 
 Helena o. Thompson (29 Ark. 569) 16, 
 
 285 
 Heller v. Sedalia (53 Mo. 159) 14, 44 
 Heiubling v. Grand Rapids (99 
 
 Mich 292) 213 
 
 Hendersliott v. Ottumwa (46 la. 
 
 658) 108 
 
 Henderson v. Minneapolis (32 
 
 Minn. 319) 257, 271, 275 
 
 V. Sandefur (11 Bush, 550) 129 
 Henkes v. Minneapolis (42 Minn. 
 
 530) 162 
 
 Hermits of St. Augustine v. Phila- 
 delphia County (Bright. 116) 299 
 Herring v. District of Columbia 
 
 (3 Mackey, 572) 98, 275 
 
 Herrington v. Lansingburg (36 
 
 Hun, 598) 54 
 
 Hession v. Wilmington (27 Atl. 
 
 Rep. 830) 262, 263, 265, 266 
 
 Heth V. Fond du Lac (63 Wis. 
 
 228) 276 
 
 Hewison v. New Haven (34 
 
 Conn. 136) 152, 153 
 
 V. New Haven (37 Conn. 475) 9, 
 13, 111, 112 
 Hey V. Philadelphia (81 Pa. St. 
 
 44) 170, 191 
 
 Hickey u. Waltham (159 Mass. 
 
 460) 264 
 
 Hickok V. Plattsburg (15 Barb. 
 
 427 ) 33 
 
 Hickox V. Cleveland (8 Oh. 543) 102 
 Higert v. Greencastle (43 Ind. 574) 190 
 Higgins V. Boston (148 Mass. 484) 174 
 z). Glens Falls (11 N. Y. Supp. 
 289) 239 
 
 Hildreth v. Lowell (11 Gray, 845) 51, 
 
 52 
 
 Hill (/. Boston (122 Mass. 344) 5, 9, 
 
 59, 60, 111, 312 
 
 D. Charlotte (72 N. C. 55) 12, 13, 
 
 14, 36, 315 
 
 V. Livingston County (12 
 
 N. Y. 52) 70 
 
 V. Rensselaer County (119 
 N. Y. 344) 293 
 
 Hiller V. Sharon Springs (28 Hun, 
 344) 133 
 
 Hilsdorf v. St. Louis (45 Mo. 94) 30 
 Hinckley v. Somerset (145 Mass. 
 
 326) 140, 208 
 
 Hines v. Lockport (50 N. Y. 236) 
 
 21, 9r, 176, 241 
 Hitchins v. Frostburg (68 Md. 
 
 100) 16, 18, 278, 279 
 
 Hixon V. Lowell (13 Gray, 59) 153 
 Hoagland o. Sacramento (52 Cal. 
 
 142) 283 
 
 Hobbs V. Lowell (19 Pick. 405) 128 
 Hodges V. Waterloo (109 la. 444) 103 
 Hogan V. Chicago (168 111. 551) 132, 
 140, 177, 210 
 Hoggard v. Monroe (51 La. An. 
 
 683) 24 
 
 Holcomb V. Danbury (51 Vt. 
 
 428) 244 
 
 HoUenbeck o. Winnebago County 
 
 (95 111. 148) 5 
 
 Holman v. Townsend (13 Met. 
 
 297) 120 
 
 Holmes v. Callioun County (97 
 
 la. 360) 274 
 
 V. Hamburg (47 la. 348) 21, 81, 
 
 82 
 
 V. Paris (75 Me. 559) 203 
 
 Homan v. Franklin County (98 
 
 la. 692) 93 
 
 Hopkins v. Rush River (70 Wis. 
 
 10) 141, 227 
 
 Horey v. Haverstraw (124 N. Y. 
 
 273) 1.S6 
 
 Horn V. Baltimore (30 Md. 218) 24, 
 
 98 
 Home V. Rochester (62 N. H. 347) 
 
 131, 245 
 Horrigan v. Clarksburg (150 Mass. 
 
 218) 222 
 
 Horton u. Nashville (4 Lea, 39) 12, 256, 
 
 265 
 V. Trompeter (35 Pac. Rep. 
 1106) 227 
 
 Houck V. Wachter (34 Md. 265) 120 
 Houfe V. Fulton (29 Wis. 296) 80, 86, 
 169, 170, 174, 
 175 
 V. Fulton (34 Wis. 608) 130 
 
 House V. Metcalf (27 Conn. 631) 250 
 V. Montgomery County (60 
 Ind. 580) 4, 71, 108 
 
 Houston V. Bryan (2 Tex. Civ. 
 App. 5.53) 279 
 
 V. Isaacks (68 Tex. 116) 203 
 
 Hover v. Barkhoof (44 N. Y. 113) 21, 
 140, 209 
 Hovey v. Mayo. (43 Me. 322) 98 
 
 Howard v. Mendon (117 Mass. 
 585) 136, 199 
 
TABLE OF CASES. 
 
 XXI 
 
 Howard v. Nortli Bridgevvater 
 
 (16 Pick. 189) 142 
 
 V. San Francisco (51 Cal. 52) 14 
 Howard County v. Legg (93 Tnd. 
 523) 4, 70, 71, 72, 76, 76, 82, 88, 91, 
 
 93 
 Howe V. New Orleans (12 La. 
 
 An. 481) 13, 307 
 
 V. Plainfleld (41 N. H. 135) 180, 
 
 209, 210 
 
 Howell V. BufCalo (15 N. Y. 512) 32 
 
 Hoyle V. Putnam (46 Conn. 56) 243 
 
 Hoyt V. Hudson (27 Wis. 0513) 275 
 
 Hubbard v. Concord (.35 N. H. 52) 160, 
 
 182, 206 250, 252 
 
 V. Tayette (70 Me. 121) 246 
 
 Hubbell V. Yonkers (35 Hun, 349) 19, 
 
 176 
 V. Yonkers (104 N. Y. 434) 178, 
 180 
 Hudson v. Marlborough (154 
 
 Mass. 218) 194 
 
 Huff V. Poweshiek County (60 
 
 la. 529) 4, 71, 108 
 
 Huffman v. San Joaquin County 
 
 (21 Cal. 426) 5, 106 
 
 Huffmire v. Brooklyn (22 N. Y. 
 
 App. Div. 406) 269 
 
 Hughes V. Fond du Lac (73 Wis. 
 
 380) 305 
 
 V. Lawrence (160 Mass. 474) 245 
 Hull V. Kansas City (54 Mo. 298) 
 
 169, 172 
 V. Richmond (2 Woodb. & M. 
 337) 145 
 
 Hume V. New York (74 N. Y. 
 
 264) 152 
 
 Humes u. Knoxville (1 Humph 
 
 403) 98 
 
 Humphreys v. Armstrong County 
 
 (56 Pa. St. 204) 4,70,234 
 
 Hungerman v. Wheeling (34 S. 
 
 E. Rep. 77S) 174 
 
 Himt V. Boonville (65 Mo. 620) 52 
 
 u.New York (109 N. Y. 1.34) 21, 
 
 119, 137, 176, 178, 180 
 
 V. Pownal (9 Vt. 411) 169 
 
 V. Salem (121 Mass. 294) 121,123 
 
 Huntington v. Breen (77 Ind. 29) 
 
 140 232 
 !>. Folk (154 Ind. 91) '232 
 
 Huston V. Council Bluffs (101 la. 
 
 3.3) 163 
 
 Ilutcliins V. Boston (12 Allen, 
 
 571) 162 
 
 Hutchinson v. Concord (41 Vt. 
 
 271) 156 
 
 V. Olympia (2 Wash. Ter. 
 314) 110 
 
 Hutchinson v. Ypsilanti (103 
 
 Mich, 12) 164 
 
 Hutson V. New York (9 N. Y. 163) 21 
 
 Hyde v. Jamaica (27 Vt. 443) 7, 111, 
 
 127, 165 
 
 Hyer v. Janesville (101 Wis. 371) 162 
 
 Idaho Springs v. Filteau (10 
 
 Col. 105) 24 
 
 V. Woodward (10 Col. 104) 24 
 
 Imler v. Springfield (55 Mo. 119) 14, 
 
 98, 276 
 
 Imperial v. Wright (34 Neb. 732) 132 
 
 Indianapolis v. Cook (99 Ind. 10) 178 
 
 ^. Emmelman (108 Ind. 530) 124 
 
 u. Huffer (30 Ind. 2.35) 15 
 
 V. Kingsbury (101 Ind. 200) 128 
 
 V. Miller (27 Ind. 394) 303 
 
 V. Murphy (91 Ind. 382) 211, 219 
 
 V. Scott (72 Ind. 196) 148, 149, 
 
 199, 210, 213 
 
 Inman v. Tripp (11 R. L 520) 47, 104, 
 
 279 
 Ironton v. Kelley (38 Oh. St. 50) 61 
 Irving's Executors d. Borough of 
 
 Media (194 Pa. St. 648) 287 
 
 Ivory V. Deerpark (116 N. Y. 476) 
 
 172, 190, 193, 194, 241 
 
 Jackson v. Allegheny (41 Fed. 
 
 Rep. 886) 64 
 
 u. Bellevieu (30 Wis. 250) 174 
 
 u. Boone (93 Ga. 662) 123, 124, 
 
 212 
 
 V. Pool (91 Tenn. 448) 213, 214 
 
 Jacksonville y.Doan (145 111. 23) 
 
 270, 306 
 V. Drew (19 Fla. 106) 109, 177 
 V. Lambert (62 111. 519) 269 
 
 Jacobs V. Hamilton County (1 
 
 Bond, 500) 8 
 
 James v. Harrodsburg (85 Ky. 
 
 191) 12, 13 
 
 Jansen v. Atchison (16 Kan. 358) 18, 
 
 140, 176, 177, 
 
 201 
 
 Jaquish v. Ithaca (36 Wis. 108) 92, 
 
 95, 204, 205 
 
 Jasper County o. AUman (142 
 
 Ind. 673) 4, 5, 71, 108 
 
 Jefferson v. Chapman (127 111. 
 
 438) 202 
 
 Jenks V. Wilbraham (11 Gray, 
 
 142} 165 
 
 Jenney .'. Brooklyn (120 N. Y. 
 
 164) 20,61,68 
 
 Jennings v. Tisbury (5 Gray, 73) 128 
 Jersey City v. Kiernan (50 N. J. L. 
 246) 263 
 
XXll 
 
 TABLE OP CASES. 
 
 Jewett i.. New Haven (38 Conn. 
 
 43 
 
 Jevvhurst v. Svrauuse (108 N. Y. 
 
 303) " 146 
 
 Johnson v. Haverliill (35 N. H. 
 
 74) ■ 139,201 
 
 ... Lowell (12 Allen, 572) 162 
 
 V. Municipality No. One (5 La. 
 
 An. 100) 39, 41 
 
 V. Whitefield (18 Me. 286) 138, 
 143, 223, 
 Johnson City v. Wolfe (103 Tenn. 
 
 277) 39 
 
 Johnson County v, Hemphill (14 
 
 Ind. App. 219) 5, 71 
 
 V. Reinier (18 Ind. App. 119) 5 
 Johnston «. District of Columbia 
 
 (118 U. S. 19) 15, 263, 266 
 
 Joliet V. Johnson (177 111. 178) 210 
 u. MeCraney (49 111. App. 381) 
 
 205 21.3 
 
 V. Shufeldt (144 111. 403) ' 172 
 
 !). Verley (35 111. 58) 71,72,73,79 
 
 V. Walker (7 III. App. 267) 20, 
 
 208, 219 
 
 Jolly V. Hawesville (89 Ky. 279) 299 
 
 Jones V. Andover, (9 Pick. 146) 131 
 
 V. Boston (104 Mass. 75) 152, 153 
 
 0. Clinton (100 la. 333) 201, 211 
 
 .;. Greensboro (124 N.C. 310) 
 
 154, 202, 213 
 
 V. New Haven (34 Conn. 1) 9, 
 
 17, 18, 112, 154 
 
 </. Waltham (4 Cush. 299) 141, 
 
 187 
 
 V. Williamsburg (97 Va. 722) 314 
 
 Joplin, etc. Co. v. Joplin (124 Mo. 
 
 129) 288 
 
 Jordan c. Benwood (42 W. Va. 
 
 312) 257, 276, 280 
 
 V. Hannibal (87 Mo. 673) 75, 83, 
 91,93 
 V. New York (44 N. Y. App. 
 
 Div. 149) 134 
 
 V. Peckhain ( 19 R. 1. 28) 204, 205 
 
 Judd 0. Claremont (66 N. H. 418) 166 
 
 V. Hartford (72 Conn. 350) 263 
 
 Judge u.Meriden (38 Conn. 90) 47,276 
 
 Jung V. Stevens Point (74 Wis. 
 
 547) 223 
 
 Kannenbeeq v. Alpena (96 Mich. 
 
 53) 164 
 
 Kan.sas City v. Bermingham (45 
 
 Kan. 212) 208 
 
 u. Bradbury (45 Kan. 381) 138, 
 141 
 V. Slangstrom (53 Kan. 431) 
 
 285, 280 
 
 Kavanagh v. Brooklyn (38 Barb. 
 232) 15, 98, 105, 
 
 276 
 Kavanaugh v. Janesville (24 Wis. 
 
 618) 234 
 
 Kaveny u. Troy (108 N. Y. 571) 
 
 160, 163 
 Keane v. Waterford (130 N. Y. 
 
 188) 163 
 
 Kearnev v. Themanson (48 Neb. 
 
 74) " 277 
 
 Keasy v. Louisville (4 Dana, 154) 98 
 Keating v. Cincinnati (38 Oh. St. 
 
 141) 102 
 
 Keith V. Easton (2 Allen, 552) 159 
 Keithsburg v. Simpson (70 III. 
 
 App. 467) 274 
 
 Keller v. Corpus Christi (50 Tex. 
 
 614) 300, 301 
 
 Kelley o. Columbus (41 Oh. St. 
 
 263) 143, 191 
 
 V. Cook (21 R. I. 29) 38 
 
 V. Fond du Lac (31 Wis. 179) 
 
 143, 145 
 
 V. Milwaukee (18 Wis. 83) 13, 
 
 313, 314 
 
 V. New York (4 E. D. Smith, 
 
 291) 55 
 
 Kellogg V. janesville (34 Minn. 
 
 132) 109, 180 
 
 V. Northampton (4 Gray, 65) 122 
 Kelly f. Blackstone (147 Mass. 
 
 448) 233, 2.36 
 
 V. New York (11 N. Y. 432) 54, 
 
 55 
 
 Kelsey v. Glover (15 Vt. 708) 166, 
 
 169, 221 
 
 Kemper v. Louisville (14 Bush, 
 
 87) 104 
 
 Kenady v. Lawrence (128 Mass. 
 
 318) 242, 243 
 
 Kendall v. Albia (73 la. 241) 234 
 
 Kennedy v. Cecil Co'unty (69 Md. 
 
 65) 166, 165, 172 
 
 u. Cumberland (65 Md. 514) 128 
 
 V. New York (73 N. Y. 365) 65 
 
 Kent V. Lincoln (32 Vt. 591) 250 
 
 Kenworthy v. Ironton (41 Wis. 
 
 647) 234 
 
 Kewanee v. Depew (80 III. 119) 227 
 Kejes V. Cedar Falls ( 107 la. 509) 
 
 205, 224, 232 
 
 V. Marcellus (50 Mich. 439) 143 
 
 Kidder v. Dunstable (7 Gray, 104) 167 
 
 V. Dunstable (11 Gray, 342) 126, 
 
 251, 252 
 
 Kies V. Erie (135 Pa. St. 144) 44 
 
 Kiesel v. Ogden City (8 Utah, 
 
 237) 266, 268 
 
TABLE OF CASES. 
 
 SXUl 
 
 Kiley n. Kansas City (69 Mo. 
 
 102) 307 
 
 V. Kansas City (87 Mo. 103) 12, 
 
 13 
 
 Kimball v. Bath (38 Me. 219) 150, 196 
 
 V. Boston (1 Allen, 417) 124 
 
 KIncaid v. Hardin County (53 la. 
 
 430) 5 
 
 King V. Davenport (98 111. 305) 303 
 V. Granger (21 R. I. 93) 279 
 
 V. Kansas City (58 Kan. 334) 
 
 259, 263, 265, 269, 279 
 V. Police Jury (12 La. An. 
 858) 6, 107 
 
 Kingsbury v. Dedham (13 Allen, 
 
 186) 159 
 
 Kinney v. Tekamah (30 Neb. 605) 
 
 133, 146 
 ,.. Troy (108 N. Y. 567) 162 
 
 Kinsey v. Magistrates of Jones 
 
 (8 Jones L. 186) 6 
 
 Kinsley v. Morse (40 Kan. 577) 235 
 Kistner v. Indianapolis (100 Ind. 
 
 210) 12 
 
 Klatl V. Milwaukee (53 Wis. 196) 
 
 196, 197, 210, 212, 
 
 Klein v. Dallas (71 Tex. 280) 110 
 
 133, 181, 201, 203, 210, 213, 218, 219 
 
 Kleng V. Buffalo (72 Hun, 541) 161 
 
 Knightstown o. Musgrove (116 
 
 Ind. 121) 
 Knostman, etc. Co. v. Davenport 
 
 (09 la. 508) 267 
 
 Kiiowlton V. Pittsfield (62 N. H. 
 
 535) 143, 140 
 
 Knox County v. Montgomery (109 
 ' Ind. 69) 81 
 
 Knoxville v. Bell (12 Lea, 157) 110, 
 181, 182, 202 
 Kobs u. Minneapolis (22 Minn. 
 
 159) 18, 47 
 
 Koch V. Ashland (88 Wis. 603) 235 
 Koester v. Ottumwa (34 la. 41) 150, 
 
 181 
 Kossraan v. St. Louis (153 Mo. 
 
 293) 135 
 
 Kranz v. Baltimore (64 Md, 491) 266, 
 
 267 
 Krause v. Davis County (44 la. 
 
 141) 4 
 
 Kunz V. Troy (104 N. Y. 344) 182, 
 
 209, 228, 229 
 
 Lacon v. Page (48 111, 499) 18, 169, 
 
 172 
 Lacour v. New York (3 Duer, 406) 50 
 La Duke v. Exeter Tp. (97 Mich. 
 
 450) 171 
 
 Lafayette v. Blood (40 Ind. 62) 151 
 
 Page 
 
 Lafayetteu. Larson (73 Ind. 367) 206 
 
 V. Spencer (14 Ind. 399) 97 
 
 V. Timberlake (88 Ind. 330) 12, 
 
 38, 154, 314 
 
 Laird v. Otsego (90 Wis. 25) 157 
 
 Lambert v. Pembroke (66 N. H. 
 
 280) 133, 201, 213, 
 
 219 
 Lampe v. San Francisco (124 Cal. 
 
 546) 276 
 
 Lancaster Canal Co. u. Parnaby 
 
 (11 A. & E. 2^3) 19 
 
 Landolt i/. Norwich (37 Conn. 
 
 615) 160 
 
 Lane v. Boston (125 Mass. 819) 100 
 V. Croinbie (12 Pick. 177) 221 
 V. Hancock (142 N. Y. 510) 180, 
 185, 218 
 V. Wheeler (35 Hun, 006) 171 
 V. Woodbury Tp. (58 la. 462) 
 
 311,312 
 Laney v. Chesterfield County (29 
 
 S. C. 140) 236 
 
 Langan v. Atchison (35 Kan. 318) 155, 
 233, 234 
 Langhammer u. Manchester (99 
 
 la. 295) 169 
 
 Langlois v. Cohoes (58 Hun, 226) 85, 
 
 123 
 Langworthy v. Green Tp. (88 
 
 Mich. 207) 138, 231), 250, 252, 
 
 253 
 
 V. Green Tp. (95 Mich. 93) 175 
 
 Lansing v. Toolan (37 Midi. 152) 147 
 
 La Porte County v. Ellsworth (9 
 
 Ind. App. 566) 74, 75, 93 
 
 Larkin v. Boston (128 Mass, 521) 
 
 243, 245 
 V. Saginaw County (11 Mich. 
 
 88) 6 
 
 Larson i . Grand Forks (3 Dak. 
 
 307) 109, 152, 154 
 
 Laurel v. Blue (1 Ind, App. 128) 38 
 Laverdure v. New York (28 N. Y. 
 
 App. Div. 65) 226 
 
 Lavery v. Philadelphia County 
 
 (2 Pa. St. 231 ) 294 
 
 Law V. Fairfield (46 Vt. 425) 245 
 
 Lawrence v. Fairbaven (5 Gray, 
 
 110) 83 
 
 V. New Bedford (160 Mass. 
 227) 187 
 
 Lawson v. Seattle (6 Wash. 184) 44 
 Lax V. Darlington (L, R, 5 Ex, 
 
 Div, 28) 63 
 
 Ledgerwood v. Webster City (93 
 
 la. 726) 205 
 
 Lee V. Barkhampsted (46 Conn, 
 213) 139 
 
XXIV 
 
 TABLE OF CASES. 
 
 Page 
 Lee V. Minneapolis (22 Minn. 13) 
 
 105, 276 
 0. Sandy Hill (40 N. Y. 442) 52 
 Lee County v. Yarbrough (85 
 
 Ala. 690) 5 
 
 LeedsK. Eichmond (102 Ind. 372) 24 
 Lefrois v. Monroe County (1B2 
 
 N. Y. 563) 288 
 
 Lehigh County v. Hoffort (116 
 
 Pa. St. 119) 6,12,82,86 
 
 Lehman v. Brooklyn (29 Barb. 
 
 234) 228 
 
 Lehinann v. Brooklyn (30 N. Y. 
 
 App. Uiv. 305) 147, 170 
 
 Lehn u. San Francisco (66 Cal. 
 
 76) 16, 278 
 
 Leicester v. Pittsford (6 Vt. 245) 139 
 
 Lemon v. Ha-yden (13 Wis. 169) 129 
 
 V. Newton (134 Mass. 476) 25 
 
 Leslie t>. Grand Rapids (120 Mich. 
 
 28) 178 
 
 V. Lewiston (62 Me. 468) 121, 229 
 
 Levy V. New York (1 Sandf. 4B5) 12, 
 
 314 
 V. Salt Lake City (3 Utah, 
 63) 67, 110 
 
 L'Herault v. Minneapolis (69 
 
 Minn. 261) 212, 218 
 
 Liberty v. Hurd (74 Me. 101) 46 
 
 Lilly V. Woodstock (59 Conn. 
 
 219) 244, 246, 248 
 
 Lincoln ;;. Boston (148 Mass. 578) 159 
 
 u. Calvert (39 Neb. 305) 161, 196, 
 
 203, 234 
 
 V. Detroit (101 Mich. 245) 226 
 
 o. Pirner (81 N. W. Rep. 
 
 846) 177, 245 
 
 V. Smith (28 Neb. 762) 170, 186, 
 
 209 
 
 V. Walker (18 Neb. 250) 225 
 
 t). Woodward (19 Neb. 2.59) 206, 
 
 210 
 
 Lindholm o. St. Paul (19 Minn. 
 
 246) 129,209 
 
 Lindsay v. Des Moines (68 la. 
 
 368) 185 
 
 Lineburg v. St. Paul (71 Minn. 
 
 246) . 195 
 
 Litchfield v. Anglim (83 III. App. 
 
 66) 232 
 
 Little V. Brockton (123 Mass. 
 
 511) 168 
 
 o. Iron River (102 Wis. 250) 151, 
 
 205 
 
 V. Madison (42 Wis. 643) 190 
 
 Littlefield v. Norwich (40 Conn. 
 
 406) 251 
 
 Little Rock v. Willis (27 Ark. 
 572) 17, 259 
 
 jrage 
 
 Livermore v. Camden (29 N. J. L. 
 
 245) 6 
 
 Lloyd V. New York (5 N. Y. 369) 11, 
 
 18, 49, 264. 
 
 Loberg v. Amherst (87 Wis, 634) 158 
 
 Loftus V. North Adams (160 
 
 Mass. 161) 239 
 
 Logan V. New Bedford (157 Mass. 
 
 534) 192 
 
 Logan County v. People (6 N. E. 
 
 Rep. 475) 131 
 
 Logansport v. Dick (70 Ind. 65) 56 
 
 V. Justice (74 Ind. 378) 181, 205 
 
 V. Wright (26 Ind. 512) 18, 263 
 
 Lohr V. Philipsburg Borough 
 
 (166 Pa. St. 246) 207, 214 
 
 Lombar v. East Tawas (86 Mich. 
 
 14) 133, 180, 241, 250 
 
 Looney v. Joliet (49111. App. 621) 215 
 Lord V. Saco (87 Me. 231) 248 
 
 Lorillard v. Monroe (11 N. Y. 
 
 392) 46 
 
 Los Angeles Cemetery Ass'n v. 
 
 Los Angeles (103 Cal. 461) 262 
 Louisiana v. New Orleans (109 
 
 U. S. 285) 293 
 
 Louisville v. McGill (52 S. W. 
 
 Rep. 1053) 23 
 
 V. O'Malley (63 S. W. Rep. 
 
 287) 265 
 
 Love V. Atlanta (95 Ga. 129) 310 
 
 Low V. Windham (75 Me. 113) 248 
 
 Lowe V. Clinton (133 Mass. 526) 246, 
 
 216 
 
 V. Clinton (136 Mass. 24) 145 
 
 Lowell V. Moscow (12 Me. 300) 132 
 
 V. Watertown Tp. (58 Mich. 
 
 568) 233 
 
 Lovrer Macungie Tp. v. Merk- 
 
 hoffer (71 Pa. St. 276) 190 
 
 Ludlow V. Fargo (3 N. Dak. 485) 110, 
 
 203 
 Luke V. Calhoun County (52 Ala. 
 
 115) 299 
 
 V. Brooklyn (43 Barb. 54) 291 
 Lund V. Tyngsboro (11 Cush. 
 
 563) 168, 170, 221 
 
 Luther v. Worcester (97 JVIass. 
 
 268) 163 
 
 Lutton V. Vernon (62 Conn. 1) 223, 
 
 224 
 Lyman v. Amliurst (107 Mass. 
 
 339) 195 
 
 V. Hampshire County (138 
 
 Mass. 74) 244, 245 
 
 V. Hampshire County (140 
 
 Mass. 311) 211 
 
 Lyme Regis v. Henley (3 B. & Ad. 
 77) 19 
 
TABLE OF CASES. 
 
 XXV 
 
 Page 
 Lynch v. Kew York (76 N. Y. 60) 15, 
 256, 258, 276 
 Lynchburg v. Wallace (95 Va. 
 
 640) 162, 164, 204 
 
 Lyon V. Cambridge (136 Mass. 
 
 41'J) 148, 149 
 
 Lyons v. Brookline (119 Mass. 
 
 491) 123, 167 
 
 u. Red Wing (76 Minn. 20) 215 
 
 Mack v. Salem (6 Oreg. 275) 202 
 Mackie v. West Bay City (106 
 
 Mich. 242) 226 
 
 Macoinber v. Taunton (100 Mass. 
 
 255) 138, 139, 148, 149 
 
 Macungie Tp. v. Merkhoffer (71 
 
 Pa. St. 276) 174 
 
 Macy V. Indianapolis (17 Ind. 267) 97 
 Madden v. Lancaster County (65 
 
 Fed. Rep. 188) 4 
 
 V. Springfield (181 Mass. 441) 243, 
 247 
 Maddox v. Randolph County (65 
 
 Ga. 216) 243 
 
 Madison County u. Brown (89 
 
 Ind. 48) 4, 76, 88, 93 
 
 Magarity v. Wilmington (5 Houst. 
 
 530) 97, 258, 259 
 
 Magee a. Brooklyn (18 N. Y. 
 
 App. Div. 22) 269 
 
 V. Troy (48 Hun, 383) 177 
 
 Magill V. Lancaster County (39 
 
 S. C. 27) 236 
 
 Maguire u. Cartersville (76Ga.84) 279 
 
 Mahogany v. Ward (16 R. I. 479) 170 
 
 Malloy V. Walker Tp. (77 Mich. 
 
 448) 139, 147, 193, 
 
 252 
 Maloney v. Cook (21R. L471) 247 
 Maloy V. St. Paul (54 Minn. 398) 235 
 Manchester v. Hartford (30 Conn. 
 
 118) 208 
 
 Manderscliid v. Dubuque (25 la. 
 
 108) 172 
 
 II. Dubuque (29 la. 73) 190, 193 
 Manhattan, etc. Co. v. Van 
 
 Keuren(23N.J. Eq. 251) 303 
 
 Manlfey v. Atchison (9 Kan. 858) 30 
 Manners v. Haverhill (135 Mass. 
 
 165) 52 
 
 Manning W.Lowell (130 Mas8.21) 279 
 
 V. Woodstock (59 Conn. 224) 246 
 
 Mansfield ... Moore (124 111. 183) 129, 
 
 134, 179, 201 
 
 Marble v. Worcester (4 Gray, 
 
 895) 165, 166 
 
 Marion County v. Riggs (24 Kan. 
 
 255) 5, 107 
 
 Market v. St. Louis (56 Mo. 189) 211 
 
 Page 
 Marseilles u. Howland (124 111. 
 
 547 1 129 
 
 Marshall v. Ipswich (110 Mass. 
 
 522) 146, 192 
 
 Martin i'. Brooklyn (1 Hill, 545) 33 
 Marvin v. New Bedford (158 
 
 Mass. 464) 251, 252 
 
 Mason v. Ellsworth (32 Me. 471) 207 
 !•. Spartanburg County (40 
 
 S. C. 390) 174 
 
 Massey v. Columbus (75 Ga. 658) 221 
 Masterton v. Mt. Vernon (-58 N. Y. 
 
 391) 188, 189 
 
 Mathews v. Cedar Rapids (80 la. 
 
 459) 224, 226 
 
 Matthews v. Barahoo (89 Wis. 674) 143 
 Mauch Chunk v. Kline (100 Pa. 
 
 St. 119) 162 
 
 Maultby v. Leavenworth (28 Kan. 
 
 745) 233 
 
 Maus V. Springfield (101 Mo. 613) 129, 
 
 180,181,211 
 
 Maxim v. Champion (50 Hun, 88) 190, 
 
 251 
 Maxmilian v. New York (62 N. Y. 
 
 160) 9, 26, 28, 33, 34, 42, 311 
 
 May V. Buchanan County (29 
 
 Fed. Rep. 469) 8 
 
 I'. Fond du Lac County (27 
 
 Fed. Rep. 691) 8 
 
 V. Juneau County (30 Fed. 
 
 Rep. 241) 8 
 
 V. Logan County (30 Fed. 
 
 Rep. 250) 8 
 
 i;. Mercer County (30 Fed. 
 Rep. 246) 8 
 
 Mayor of Lynn v. Turner (1 Cow- 
 
 per, 86) 19 
 
 Maysville v. Stanton (14 S. W. 
 
 Rep. 675) 264 
 
 McAllister v. Albany (18 Oreg. " 
 
 426) 151, 177, 196 
 
 McArthur v. Saginaw (58 Mich. 
 
 357) 111, 138 
 
 McAuley V.Boston (113Mass.503) 163 
 McAvoy V. New York (54 How. 
 
 Pr. 245) 67 
 
 McCabe v. Cambridge (134 Mass. 
 
 484) 245, 246 
 
 V. Hammond (84 Wis. 590) 160, 
 182, 219 
 McCarroU v. Kansas City (64 Mo. 
 
 App. 283) 196 
 
 McCarthy i'. Boston (135 Mass. 
 
 197) 30 
 
 V. Portland (67 Me. 167) 122, 128 
 
 V. St. Paul (22 Minn. 527) 100 
 
 V. Syracuse (46 N. Y. 194) 19, 20, 
 
 265, 268 
 
XXVI 
 
 TABLE OF CASES. 
 
 McCaughey v. Tripp (12 R. I. 
 
 449) 62 
 
 MuClain v. Garden Grove (83 la. 
 
 2.35) 80, 85 
 
 McCloskey v. Moies (19 11. 1. 297) 165, 
 
 11)9 
 McClure v. Red Wing (28 Minn. 
 
 186) 257, 285, 286 
 
 McCombs V. Akron (15 Oil. 474) 20, 
 
 102 
 McCormick v. Wasliington Tp. 
 
 (112 Pa. St. 185) 77, 81, 90 
 
 McCouU V. Manchester (85 V,a. 
 
 579) 141,177 
 
 McCrowell v. Bristol (5 Lea, 685) 308 
 McCuUom V. Black Hawk County 
 
 .(21 la. 409) 4 
 
 McCune v. Missoula (10 Mont. 
 
 146) 109 
 
 McCutcheon t). Homer (43 Mich. 
 
 483) 111 
 
 McDade v. Chester (117 Pa. St. 
 
 414) 13, 36 
 
 McDermott v. Boston (133 Mass. 
 
 349) 56 
 
 a.Kingston (191-Iun. 198) 189,205 
 McDonald v. Ashland (78 Wis. 
 
 251) 91, 94 
 
 V. Red Wing (13 Minn. 38) 300, 
 301 
 McDonough ». Virginia City (6 
 
 Nev. 90) 12, 18, 109 
 
 McDougall i>. Salem (110 Mass. 
 
 211 ■ 122 123 
 
 McElroy v. Albany (65 Ga. 387) ' 38 
 McFadin v. San Antonio (22 Tex. 
 
 Civ. App. 140) 39 
 
 McFarland v. Emporia Tp. (59 
 
 Kan. 568) 178, 201 
 
 McFarlane v. Sullivan (99 Wis. 
 
 361) 1G9, 174 
 
 McGaffigan v. Boston (149 Mass. 
 
 289) 213 
 
 McGarry v. Loomis (63 N. Y. 104) 124, 
 
 229 
 McGinty v. Nevf York (5 Duer, 
 
 674) 21 
 
 McGowan u. Boston (170 Mass. 
 
 384) 162 
 
 McGrail o. Kalamazoo (94 Mich. 
 
 52) 214 
 
 McGraw v. Marion (98 Ky. 673) 39 
 McGuiness v. New York (52 How. 
 
 Pr. 450) 65 
 
 McGiiinness v. Worcester (160 
 
 Mass. 272) 221 
 
 McGuire v. Spense (91 N. Y. 303) 124 
 McHugh V. St. Paul (67 Minn. 
 
 441) 148, 191 
 
 McKay v. Buffalo (9 Ilun, 401) 40 
 McKeigue v. Janesville (68 Wis. 
 
 50) 205 
 
 McKeller v. Detroit (57 Mich. 158) 164 
 
 V. Monitor Tp. (78 Mich. 485) 93, 
 
 127, 165 
 
 McKenna v. Boston (131 Mass. 
 
 143) 128 
 
 V. St. Louis (6 Mo. App. 320) 43 
 McKenzie v. Northfield (30 Minn. 
 
 456) 233 
 
 McKormick v. West Bay City 
 
 (110 Mich. 265) 181,205 
 
 McLaughhn u. Corry (77 Pa. St. 
 
 109) 164, 210 
 
 McMahon v. New York (33 N. Y. 
 
 642) 229 
 
 McNulty V. Cambridge (130 Mass. 
 
 275) 243, 247 
 
 McQuillan u. Seattle (10 Wash. 
 
 464) 234, 235 
 
 McSherry v. Canandaigua (129 
 
 N. Y. 612) 206, 207 
 
 McVee v. Watertown (92 Hun, 
 
 306) 130, 209 
 
 Mead u. New Haven (40 Conn. 
 
 72) 34 
 Meares v. Wilmington (9 Ired. L. 
 
 73) 19, 103 
 Medina Tp. v. Perkins (48 Mich. 
 
 67) 81, 82, 89, 93, 185 
 
 Meiners v. St. Louis (130 Mo. 
 
 274) 132 
 
 Melendy v. Bradford (56 Vt. 148) 246 
 Memphis v. Kimbrough (12 
 
 Heisk. 1.33) 65 
 
 V. Lasser (9 Humph. 757) 19, 48, 
 110, 151, 196 
 Mendel v. Wheeling (28 W. Va. 
 
 233) 13, 14, 08 
 
 Meridian u. Hyde (11 So. Rep. 
 
 108) 236 
 
 Merrifield v. Worcester (110 
 
 Mass. 210) 14, 18, 259, 263, 287, 289 
 Merrill v. Bradford (110 Mass. 
 
 505) 251, 252 
 
 0. Claremont (58 N. H. 468) 166 
 V. Hampden (20 Me. 234) 139, 221 
 V. North Yarmouth (78 Me. 
 
 200) 236 
 
 V. Portland (4 Cliff. 138) 152 
 
 Merriman v. Pliillipsburg (158 
 
 Pa. St. 78) 234 
 
 Mersey Docks i^. Gibbs (11 H. 
 
 L. Cas. 686) 19, 65 
 
 Metropolitan Asylum District u. 
 
 Hill (L. R. 6 App. Cas. 193) 16 
 Michels v. Syracuse (92 Hun, 
 365) 205 
 
TABLE OP CASES. 
 
 XXVll 
 
 Page 
 Michener v. Philadelphia (118 Pa. 
 
 St. 535) 256 
 
 Michigan City v. Ballance (123 
 
 Ind. 334) 205 
 
 ... Boecklins (122 Ind. 39) 138, 
 
 139, 140, 180, 187, 210, 231 
 
 Miles V. Lynn (130 Mass. 398) 247 
 
 MilledgeviUe v. Cooley (55 Ga. 
 
 17) 18, 179 
 
 Miller v. Boone County (05 la. 5) 73 
 
 V. Bradford (186 Pa. St. 164) 163, 
 
 164 
 
 u. Iron County (29 Mo. 122) 6 
 
 V. Morristown (47 N. J. Eq. 
 
 62) 276, 279 
 
 V. St. Paul (38 Minn. 134) 148 
 Mills V. Brooklyn (32 N. Y. 489) 12, 15, 
 256, 257, 259 
 ,.. Philadelphia (187 Pa. St. 
 287) 141 
 
 Milwaukee v. Davis (6 Wis. 377) 128, 
 19B, 225 
 Minick V. Troy (83 N. Y. 514) 248 
 Missouri River Packet Co. v. Han- 
 nibal, etc. B. Co. (1 McCrary, 
 281) 84 
 
 Mitchell V. Rockland (52 Me. 118) 31, 
 42, 111, 310 
 V. Worcester (129 Mass. 525) 248 
 Mochler v. Shaftsbury (46 Vt. 
 
 580) 145 
 
 Monje !J. Grand Rapids (81 N. W. 
 
 Rep. 574) 151 
 
 Monk V. New Utrecht (104 N. Y. 
 
 552) 15, 22, 147, 191, 238, 240 
 
 Monmouth v. Sullivan (8 III. App. 
 
 50) 119,179,191 
 
 Monongahela City i;. Fischerj 111 
 
 Pa. St. 9) 143 
 
 Montezuma w. Wilson (82 Ga. 206) 201 
 Montgomery v. Des Moines (55 
 
 la. 101) 109 
 
 V. Gilmer (33 Ala. 116) 17, 256, 
 
 257 263 
 
 V. Wright (72 Ala. 411) 176,' 200, 
 
 231, 232 
 
 Montgomery County v. Coffen- 
 
 berry (14 Ind. App. 701 ) 5 
 
 Monticello v. Fox (3 Ind. App. 
 
 481) 257 
 
 Moody V. New York (43 Barb. 
 
 282) 65 
 
 V. Niagara County (46 Barb. 
 
 659) 297 
 
 V. Saratoga Springs (17 N. Y. 
 
 App. Div. 207) 270 
 
 Moon V. Ionia (81 Mich. 635) 22, 241 
 
 Moore v. Abbot (32 Me. 46) 167 
 
 V. Atlanta (70 Ga. 611) 100 
 
 Moore v. Burlington (49 la. 136) 254 
 
 0. Huntington (31 W. Va. 
 
 842) 234, 236 
 
 u. Kalamazoo (109 Mich. 176) 215 
 
 1. Kenockee Tp. (75 Midi. 
 
 332) 180, 205 
 
 V. Los Angeles (72 Cal. 287) 07 
 a. Minneapolis (19 Minn. 300) 
 
 211,218 
 
 V. Platleville (78 Wis. 644) 208 
 
 V. Richmond (85 Va. 538) 178, 
 
 180, 210, 221, 251 
 
 Mootry v. Danbury (45 Conn. 
 
 550) 276, 285 
 
 Moranu. Palmer (102 Mass. 196) 145 
 Moreland v. Mitcliell County (40 
 
 la. 394) 72, 73 
 
 Morey v. Newfane (8 Barb. 64-5) 6, 107 
 Morgan v. Bingliampton (102 
 
 N. Y. 500) 259 
 
 u. Danbury (67 Conn. 484) 270, 306 
 V. Fremont County (92 la. 
 
 644) 205 
 
 V. Hallowell (57 Me. 375) 143, 191 
 V. Lewiston (91 Me. 566) 248 
 Morgan County v. Pritchett (85 
 
 Ind. 68) 4 
 
 Morris v. Council Bluffs (67 la. 
 
 343) 98,105,274 
 
 Morrison v. Lawrence (98 Mass. 
 
 219) 30, 32, 47 
 V. Syracuse (45 N. Y. App. 
 
 biv.421) 178 
 
 Morse y. Belfast (77 Me. 44) 134, 139, 
 
 180, 193, 221, 223 
 
 V. Boston (109 Mass. 416) 163 
 
 t. Fair Haven East (48 Conn. 
 
 220) 307 
 V. Richmond (41 Vt. 435) 144, 157, 
 
 1.59 
 V. Worcester (139 Mass. 389) 270 
 Morsman v. Rockland (91 Me. 
 
 264) 175 
 
 Morton v. Frankfort (55 Me. 46) 198 
 Moss u. Burlington (60 la. 438) 171, 
 
 191 
 Moulton V. Sanford (51 Me. 127) 
 
 118, 167, 174 
 V. Scarborough (71 Me. 267) 8 
 Mount Sterling v. Crummy (73 
 
 111. App. 572) 233 
 
 Mount Vernon v. Brooks (39 111. 
 
 App. 426) 239, 241 
 
 Mower v. Leicester (9 Mass. 247) 6, 
 
 107, 111 
 
 Mullen 1-. Owosso (100 Mich. 103) 230 
 
 V. Rutland (65 Vt. 77) 88, 197 
 
 Munson v. Derby (37 Conn. 298) 
 
 136, 196 
 
TABLE OF CASES. 
 
 Murdock v. Warwick (4 Gray, 
 
 178) 222 
 
 Murpliy V. Chicago (29 111. 279) 97 
 V. Gloucester (105 Mass. 470) 
 
 192, 194 
 V. Lowell (124 Mass. 564) 49 
 
 Murpliysboro v. O'Eiley (36 111. 
 
 App. 157) 208 
 
 Miirtaugh v. St. Louis (44 Mo. 
 
 479) 35, 42, 311 
 
 Musick u. Latrobe (184 Pa. St. 
 
 875) 228 
 
 Myers v. Kansas City (108 Mo. 
 
 480) 197 
 
 .;. Springfield (112 Mass. 
 489) 150, 190, 197 
 
 Nashtille v. Brown (9 Heisk. 1) 140 
 Nason v. Boston (14 Allen, 508) 162 
 Navasota v. Pearce (46 Tex. 525) 6, 
 
 110 
 Naylor v. Salt Lake City (9 Utah, 
 
 491) 1.37,196,199,210 
 
 Neal V. Boston (100 Mass. 518) 253 
 Nebraska City v. Campbell (2 
 
 Black, 590) 19, 70, 126 
 
 V. Lampkin (6 Neb. 27) 98 
 
 V. Rathbone (20 Neb, 288) 160, 163 
 Neddo V. Ticonderoga (77 Hun, 
 
 524) 227 
 
 NefF?'. Wellesley (148 Mass. 487) 237 
 Nelson v. Canistoe (100 N. Y. 89) 19, 
 
 112 
 Nesbit V. Garner (75 la. 314) 231 
 
 Nesbitt V. Greenville (69 Miss. 
 
 22) 123, 124, 180, 213 
 
 Netzer v. Crookston City (59 
 
 Minn. 244) 265, 266, 272 
 
 Nevins v. Peoria (41 111. 502) 103, 
 104, 306 
 New Albany v. Lines (21 Ind. 
 
 App. 380) 279 
 
 0. McCulloch (127 Ind. 500) 241 
 New Bedford t). Taunton (9Allen, 
 
 207) 42 
 
 Newberry v. New York (1 Sweeny, 
 
 369) 297 
 
 New Orleans v. Abbagnato (62 
 
 Fed. Rep. 240) 299 
 
 Newport v. Miller (93 Ky. 22) 137, 
 139, 211 
 Newton v. Worcester (169 Mass. 
 
 516) 164 
 
 New York v. Bailey (2 Den. 433) 26, 
 
 48,51,288 
 
 V. Furze (3 Hill, 612) 18, 50, 265 
 
 V. Lord (18 Wend. 126) 802 
 
 V. SheflSeld (4 Wall. 189) 19, 130, 
 
 131, 137, 202 
 
 Page 
 New York, etc. Co. v. Brooklyn (8 
 
 Hun, 37) 66 
 
 V. Brooklyn (71 N. Y. 580) 33 
 Niblett V. Nashville (12 Heisk. 
 
 684) 19, 191, 193 
 
 Nicholas v. Peck (20 E. L 533) 224 
 
 Nicliols V. Athens (66 Me. 402) 158 
 
 V. Boston (98 Mass. 89) 307 
 
 V. Laurens (96 la. 388) 236 
 
 V. Minneapolis (33 Minn. 430) 233 
 
 V. St. Paul (44 Minn. 494) 103 
 
 Ninis V. Troy (59 N. Y. 500) 268 
 
 Niven v. Rochester (76 N. Y. 619) 234 
 
 Noble II. Richmond (81 Gratt. 
 
 271) 19, 21, 110, 202, 209 
 V. St. Albans (56 Vt. 522) 276 
 Nolan V. New Britain (69 Conn. 
 
 288 
 
 Noonan v. Albany (79 N. Y.470) 19, 
 
 279 
 V. Lawrence (130 Mass. 181) 247 
 Norfolk V. Johnakin (94 Va. 285) 196 
 Normal v. Gresham (49 111. App. 
 
 196) 231, 235 
 
 Norman v. Ince (8 Okl. 412) 51 
 
 Norris v. Haverhill (65 N. H. 89) 181 
 
 V. Litchfield (35 N. H. 271) 126 
 
 Norristown v. Fitzpatrick (94 Pa. 
 
 St. 121) 13,38,314 
 
 V. Moyer (67 Pa. St. 355) 154, 183 
 Nortli Manheim Tp. v. Arnold 
 
 (119 Pa. St. 380) 157,158,159 
 
 North Vernon v. Voegler (103 
 
 Ind. 814) 15, 104, 147 
 
 Norton v. New Bedford (166 
 
 Mass. 48) 264 
 
 V. St. Louis (97 Mo. 537) 163, 164 
 Norwood «. Somerville (159 Mass. 
 
 105) 136, 199, 233 
 
 Nonrse v. Victory (51 Vt. 275) 248 
 Noyes v. Gardner (147 Mass. 
 
 505) 118,210,215,218 
 
 V. Mason City (53 la. 418) 100 
 
 O'Brien v. St. Paul (18 Minn. 176) 279 
 O'Connor v. Pittsburg (18 Pa. St. 
 
 187) 98 
 
 Odell V. Schroeder (58 111. 353) 88, 40, 
 
 315 
 Ogg «. Lansing (85 la. 495) 12, 18, 42, 
 
 310 
 O'Gorman v. Morris (26 Minn. 
 
 267) 151 
 
 O'Laughlin u. Dubuque (42 la. 
 
 539) 143, 145 
 
 O'Leary i-.Mankato (21 Minn. 65) 196 
 Oliver v. Denver (13 Col. App. 
 
 345) 148 
 
 </. Kansas City (69 Mo. 79) 133 
 
TABLE OF CASES. 
 
 XXIX 
 
 Oliver u. Worcester (102 Mass. 
 
 489) 9, 60, 62 
 
 Olson 0. Worcester (142 Mass. 
 
 536) 210, 218 
 
 Omaha v. Bowman (52 Neb. 293) 61 
 V. Jensen (35 Neb. G8) 151 
 
 V. 01mstea<l (5 Neb. 446) 18, 109 
 V. Randolph i:;0 Neb. 699) 151 
 V. Richards (49 Neb. 244) 124, 223 
 O'Meara v. New York (1 Daly, 
 
 425) 44 
 
 O'Neil V. Deerfield Tp. (86 Mich. 
 
 610) 91, 93, 95 
 
 V. East Windsor (63 Conn. 
 
 150) 126, 138, 139 
 
 u. West Branch (81 Mich. 
 544) 215 
 
 O'Neill V. New Orleans (30 La. 
 
 An. 220) 18, 109 
 
 Orme w. Richmond (79 Va. 86) 110, 198 
 O'Konrke u. Monroe (98 Mich. 
 
 520) 188, 196, 199 
 
 Orrt). Brooklyn (36 N.Y. 661) 291 
 Osborne v. Detroit (32 Fed. Rep. 
 
 36) 216, 226 
 
 Ostrander v. Lansing (111 Mich. 
 
 693) 264 
 
 Otto Tp. u. Wolf (106 Pa. St. 
 
 608) 214, 219 
 
 Ouverson v. Grafton (5 N. Dak. 
 
 281) 231, 234 
 
 Oweii V. Fort Dodge (98 la. 281) 205, 
 
 231 
 Owens V. Lancaster (182 Pa. St. 
 
 2.57) 266 
 
 Ozier v. Hinesburgh (44 Vt. 220) 14-3, 
 
 182, 202 
 
 Pack v. New York (8 N. Y. 222) 54 
 Paddock v. Syracuse (61 Hun, 8) 247 
 Page V. Buckspiirt (64 Me. 51) 171 
 Painter v. Pittsburg (46 Pa. St. 
 
 21.3) 54 
 
 Palestine v. Hassell (15 Tex, Civ. 
 
 App. 519) 212 
 
 Palmer v. Andover (2 Cush. 600) 168, 
 
 171, 221 
 
 u. Concord (48 N. H. 211) 295, 
 
 296, 297, 298 
 
 u. Portsmouth (43 N. H, 265) 57, 
 
 124, 141 
 
 Parish v. Eden (62 Wis. 272) 206, 
 
 207, 229, 237 
 
 Park V. Adams County (3 Ind. 
 
 App. 536) 74, 87 
 
 Parker v. Laredo (9 Tex. Civ. 
 
 App, 221) 266, 272 
 
 V. Macon (39 Ga. 725) 13, 18, 20, 
 
 109, 154,307 
 
 Parker v. Nashua (59 N. H. 402) 278 
 Parks V. Newburyport (10 Gray, 
 
 28) 275 
 
 Pars-ons v. Manchester (67 N. H. 
 
 163) 212, 218 
 
 Patch y. Covington (17 B. Mon- 
 roe, 722) 13 
 Patchen i: Walton (17 N. Y. App. 
 
 Div. 158) 222 
 
 Patterson v. Austin (15 Tex. Civ. 
 
 App. 201) 157, 159 
 
 Patton V. Montgomery County 
 
 (96 Ind. 131) 4, 82 
 
 Paulson V. Pelican (79 Wis. 445) 164 
 Peach V. Utica (10 Hun, 477) 22, 205, 
 
 237 
 Peard v. Mt. Vernon (83 Hun, 
 
 250) 161 
 
 Pearson v. Zable (78 Ky. 170) 55 
 
 Pease u. Parsonsfield (92 Me. 
 
 345) 207 
 
 Peck V. Austin (22 Tex. 261) 315 
 
 V. Kllsworth (36 Me. 393) 283 
 
 Pekin v. McMahon (154 III. 141) 61, 
 
 228 
 V. Newell (26 111. 320) 131 
 
 Pennoyer v. Saginaw (8 Mich. 
 
 534) 279 
 
 Pennsylvania Hall, In re (6 Pa. 
 
 St. 204) 291 
 
 Penrose v. Fehr (113 Mich, 517) 224 
 Peoria v. Eisler (62 111. App. 26) 265 
 Perkins v. P'ayette (68 Me. 152) 142, 
 
 167 
 
 V. Fond du Lac (34 Wis. 435) 162 
 
 Perry «. Worcester (6 Gray, 544) 48, 
 
 53, 83, 103, 285 
 
 Perry Tp. v. John (79 Pa. St. 412) 147, 
 
 186 
 Peters v. Lindsborg (40 Kan. 654) 38 
 V. New York (8 Hun, 405) 30 
 Petersburg v. Applegarth (28 
 
 Gratt. 321) 65 
 
 Peterson v. New York (17 N. Y. 
 
 449) 31 
 
 Pettengill v. Yonkers (116 N. Y. 
 
 558) 140, 180, 211, 225 
 
 Pettigrew v. Evansville (25 Wis. 
 
 223) 280 
 
 Pettingill v. Olean (20 N. Y. 
 
 Supp. 367) 231 
 
 Phelps V. Mankato (23 Minn. 276) 127, 
 
 137 
 Philadelphia, etc. R. Co. v. New 
 
 York (38 Fed. Rep. 159) 65 
 
 Philbrick v. Pittston (03 Me. 477) 121, 
 
 142 
 Phillips w. Council Bluffs (63 la. 
 576) 100 
 
XXX 
 
 TABLE OF CASES. 
 
 Phillips V. Huntington (35 W. Va. 
 
 406) 180, 223 
 
 V. Veazie (40 Me. 96) 1B7, 1% 
 V. Willow (70 Wis. 6) 251 
 
 Pierce v. New Bedford (129 Mass. 
 
 534) 156, 314 
 
 V. Wilmington (2 Marv. 306) 210 
 Pinkliam v. Topsfield (104 Mass. 
 
 78) 162 
 
 Piper V. Spokane (22 Wash. 147) 164, 
 
 255 
 
 Pittsburg V. Grier (22 Pa. St. 54) 9, 
 
 19, 48, 66, 66 
 
 Pittston V. Hart (89 Pa. St. 389) 174 
 
 Plattsmouth v. Boeck (49 N. W. 
 
 Eep. 167) 264, 2G9 
 
 V. Mitchell (20 Neb. 228) 133, 
 215, 223 
 Platz V. McKean Tp. (178 Pa. St. 
 
 601) 204, 206 
 
 Pleasant Grore Tp. u. Ware (7 
 
 Kan. App 048) 137 
 
 Plymouth Tp. i/. Graver (125 Pa. 
 
 St. 24) 191 
 
 Podliaisky v. Cedar Rapids (106 
 
 la. 543) 274 
 
 Pollard V. Woburn (104 Mass. 84) 187 
 Pollock's Adm'ri). Louisville (13 
 
 Bush, 221) 38 
 
 Pomeroy v. Westfield (154 Mass. 
 
 462) 145, 168, 221, 240 
 
 Pomfrey w. Saratoga Springs (104 
 
 N. Y. 459) 129, 185, 209, 241 
 
 Ponca V. Crawford (23 Neb. 662) 133, 
 
 223 
 Pontchartrain R. Co. v. New 
 
 Orleans (27 La. An. 162) 52 
 
 Pontiac v. Carter (32 Mich. 164) 98, 99 
 
 Poole V. Jackson (93 Tenn. 62) 178, 
 
 203, 204, 207, 214 
 
 Porter County v, Dombke (94 
 
 Ind. 72) 76, 81, 93, 94 
 
 Post V. Boston (141 Mass. 189) 218 
 
 V. Foxborough (131 Mass. 
 
 202) 245 
 
 Potter V. Castleton (58 Vt. 435) 133, 
 
 145 
 Pottner w. Minneapolis (41 Minn. 
 
 73) 201, 267 
 
 Powers V. Boston (154 Mass. 60) 138 
 
 V. Council Bluffs (50 la. 197) 262, 
 
 265 
 
 Prather v. Lexington (13 B, Mon. 
 
 559) 39, 290 
 
 Pratt V. Amherst (140 Mass. 167) 139, 
 
 140 
 
 V. Sherburne (53 Vt. 370) 248 
 
 V. Weymouth (147 Mass. 245) 152, 
 
 170 
 
 Page 
 Pray v. Jersey City (32 N. J. L. 
 
 394) 111 
 
 Prentiss v. Boston (112 Mass. 43) 177, 
 
 187 
 Prideaux v. Mineral Point (43 
 
 Wis. 613) 134, 147, 101, 230 
 
 Prince George's County v. Bur- 
 gess (61 Md. 29) 108, 28.3, 236 
 Princeton v. Gieske (93 Ind. 102) 103 
 Prindle v. Pletcher (39 Vt. 255) 202, 
 
 213 
 Providence v. Clapp (17 How. 161) 164 
 Pueblo u. Smith (3 Col. App. 
 
 386) 125 
 
 Puffer V. Orange (122 Mass. 389) 191, 
 
 194 
 
 Purple V. Greenfield (138 Mass. 1) 192, 
 
 211 218 
 
 Pusey t). Allegheny (98 Pa. St. 522) 100 
 
 Pye V. Mankato (36 Minn. 373) 277, 
 
 279 
 
 QniNCT V. Jones (76 111. 231) 97 
 
 Quinlan v. Utica (11 Hun, 217) 250 
 Quinn V. Paterson (27 N. J. L. 35) 52, 
 
 98 
 V. Sempronius (33 N. Y. App. 
 Div. 70) 243, 246 
 
 Quinton v. Burton (61 la. 471) 84 
 
 Radcliff I). Brooklyn (4 N. Y. 
 
 196) 98 
 
 Randall v. Conway (63 N. H. 513) 131 
 Randies v. Waukesha County 
 
 (96 Wis. 629) ' 7 
 
 Rankert v. Junius (25 N. Y. App. 
 
 Div. 470) 211 
 
 Ranney ;;. Sheffield (49 Vt. 191 ) 245 
 Rapho Tp. V. Moore (68 Pa. St. 
 
 404) 89, 202 
 
 Ray V. Manchester (46 N.'H. 59) 166 
 D. St. Paul (40 Minn. 458) 146 
 Raymond v. Haverhill (168 Mass. 
 
 382) 165 
 
 V. Lowell (6 Cush. 524) 139, 225, 
 252 
 Reading v. Keppleman (61 Pa. 
 
 St. 238) 98 
 
 Reardon v. St. Louis County (36 
 
 Mo. 565) 6, 107 
 
 V. San Francisco (66 Cal. 
 492) 269 
 
 Reed u. Allegheny (79 Pa. St. 
 
 300) 53, 54 
 
 v. Belfast (20 Me. 246) 121 
 
 <y. Howell County (125 Mo. 
 
 58) 6 
 
 V. Madison (83 Wis. 171) 122 
 V. Northfield (13 Pick. 94) 238 
 
TABLE OP CASES. 
 
 XXXI 
 
 Page 
 Reliberg v. New York (91 N. Y. 
 
 137) 119,- 124, 140, 181, 202, 206 
 Reid V. Chicago (83 III. App. 554) 206 
 Reining v. Buffalo (102 N. Y. 
 
 308) 242, 243 
 
 Reock V. Newark (33 N. J. L. 
 
 129) 12 
 
 Requa V. Rochester (45 N. Y. 
 
 129) 19, 140, 214 
 
 Reynolds v. Shreveport (13 La. 
 
 An. 426) 98 
 
 Rhodes v. Cleveland (10 Oh. 159) 20, 
 
 279 
 Rhyner v. Menasha (97 Wis. 523) 143 
 Rice V. Des Moines (40 la. 638) 210, 
 
 232 
 
 I/. Evansville (108 Ind. 7) 15, 260, 
 
 279 
 
 V. Montpeller (19 Vt. 470) 143 
 
 Rich V. Rockland (87 Me. 188) 207 
 
 Richards u. Enfield (13 Gray, 
 
 344) 167 
 
 Richardson v. Boston (156 Mass. 
 
 145) 190 
 
 V. Danvers (176 Mass. 413) 179 
 V. Marceline (78 Mo. App. 
 3C0) 182 
 
 Richmond v. Courtney (32 Gratt. 
 
 792) 178, 221 
 
 V. Long (17 Gratt. 375) 11,42,310 
 
 V. Mulholland (116 Ind. 173) 232 
 
 t). Test (18 Ind. App. 482) 288 
 
 Riddle v. Delaware County (156 
 
 Pa. St. 043) 83 
 
 Rigony v. Schuylkill County (103 
 
 Pa. St. 382) 4 
 
 Riley v. Bastchester (18 N. Y. 
 
 App. Div. 94) 214 
 
 Ring V. Cohoes (77 N. Y. 83) 19, 21, 
 61, 68, 171, 172, 173 
 Ringelstein v. San Antonio (21 
 
 S. W. Rep. 634) 208 
 
 Ripley v. Chosen Freeholders (40 
 
 N. J. L. 45) 82 
 
 Ritger v. Milwaukee (99 Wis. 
 
 190) 174, 230 
 
 Rivers v. Augusta (65 Ga. 376) 12, 
 14, 314, 316 
 Roach V. Ogdensburg (91 Hun, 9) 
 
 151, 219 
 Rohb I'. Connellsville (137 Pa. St. 
 
 42) 226 
 
 Roberts v. Chicago (26 111. 249) 103 
 
 V. Douglas (140 Mass. 129) 243 
 
 Robin V. Bartlett (64 N. H. 426) 243, 
 
 246, 248 
 
 Robinson v. Cedar Rapids (100 
 
 la. 662) 224 
 
 >., Evansville (87 Ind. 384) 44 
 
 Robinson v. Greenville (42 Oh. St. 
 
 625) 299, 814 
 
 V. Wilmington (8 Houst. 409) 
 
 211, 224, 226 
 Roblee v. Indian Lake (11 N. Y. 
 
 App. Div. 435) 169 
 
 Rochefort v. Attleborough (154 
 
 Mass. 140) 219 
 
 Rochester White Lead Co. v. Roch- 
 ester (3 N. Y. 463) 18, 29, 37, 263 
 Rockford v. Hildebrand (61 111. 
 
 155) 20, 177, 178 
 
 V. Russell (9 111. App. 229) 172, 175 
 Rock Island v. Drost (71 111. App. 
 
 613) 179 
 
 Rogers v. Newport (62 Jle. 101) 160, 
 
 165 
 
 V. Orion (116 Mich. 324) 208 
 
 C-. Shirley (74 Me. 144) 207, 244, 
 
 245 
 
 Rohrbough i'. Barbour County 
 
 Court (39 W. Va. 472) 80, 86, 175 
 
 Rolf f. Greenville (102 Mich 544) 164 
 
 Roll V. Augusta (34 Ga. 326) 105, 276 
 
 V. Indianapolis (52 Ind. 547) 14, 
 
 260 
 
 Rome V. Dodd (58 Ga. 238) 18, 109 
 
 V. Omberg (28 Ga. 46) 97 
 
 Ronn V. Des Moines (78 la. 63) 212 
 
 Roodhouse v. Christian (56 111. 
 
 App. 107) 1.34, 154 
 
 V. Christian (158 111. 187) 165, 166 
 Rooney v. Randolph (128 Mass. 
 
 580) 176, 180, 186 
 
 Rose !■. St. Charles (49 Mo. 509) 283 
 Rosedale v. Golding (55 Kan. 167) 76, 
 
 86 
 Rosevere v. Osceola Mills (169 Pa. 
 
 St. 555) 214 
 
 Ross V. Ionia Tp. (104 Mich. 320) 86 
 
 !•. Clinton (46 la. 606) 278 
 
 I.. Davenport (66 la. 548) 232 
 
 V. Madison (1 Ind. 281) 49, 285 
 
 Rossire v. Boston (4 Allen, 57) 46 
 
 Rounds V. Bangor (46 Me. 541) 28 
 
 i: Mumford (2 R. I. 154) 98 
 
 Rouse V. Somerville (180 Mass. 
 
 361) 118 
 
 Rowe 0. Ballard (19 Wash. 1) 151 
 
 V. Portsmouth (56 N. H. 291) 18, 
 
 263, 265, 267 
 
 Rowell V. HoUis (62 N. H. 129) 252 
 
 D.- Lowell (7 Gray, 100) 167 
 
 V. Williams (29 la. 210) 177, 208 
 
 Rowland i'. Gallatin (75 Mo. 134) 52 
 
 0. Kalamazoo County (49 
 
 Mich. 553) 8 
 
 Royce v. Salt Lake City (15 Utah. 
 
 401) 25, 39 
 
xxxu 
 
 TABLE OF CASES. 
 
 Page 
 Eozell V. Anderson (91 Ind. 591) 14, 
 
 260 
 Ruggles V. Nantucket (11 Cush. 
 
 433) 302 
 
 V. Nevada (fi3 la. 185) 215, 216 
 
 Eumrill!;.Deliifield(82Wi9.184) 151 
 
 Rusbvilley. Adams (107 Ind, 475) 156 
 
 Russell V. Burlington (30 la. 262) 97, 
 
 105 
 V. Columbia (74 Mo. 480) 18, 177 
 V. Men of Devon (2 Term 
 
 Rep. 667) 7, 106, 107 
 
 V. New York (2 Den. 461 ) 300, 
 
 301, 802 
 
 Ryehlicki u. St. Louis (98 Mo. 
 
 497) 279 
 
 St. Louis v. Gurno (12 Mo. 414) 
 
 V. Stern (3 Mo. App. 48) 
 St. Michael's Church v. Pliiladel- 
 piiiaCounty (Bright. 121) 297, 
 St. Paul 0. Kuby (18 Minn. 154) 
 
 195, 
 St. Paul, etc. R. Co. ». Dulath 
 
 (56 Minn. 494) 
 Salina v. Trosper (27 Kan. 544) 
 
 Salladay v. Dodgeville (85 Wis. 
 
 318) 
 Saltmarsh v. Bow (56 N. H. 428) 
 Samples v. Atlanta (95 Ga. 110) 
 
 Sanders o. Palmer (154 Mass. 
 
 475) 
 Sanford v. Augusta (32 Me. 536) 
 Sargent v. Gilford (66 N. H. 543) 
 
 r. Lynn (138 Mass. 599) 
 Sarles u. New York (47 Barb. 
 
 447) 
 Saulsbury v. Ithaca (94 N. Y. 27) 
 
 Savannah «. Cullens (.38 Ga. 334) 
 V. Donnelly (71 Ga. 258) 150, 
 
 i,. Spears (66 Ga. 304) 
 
 V. Waldner (49 Ga. 316) 18, 
 
 Savory v. Haverhill (132 Mass. 
 
 324) 
 Sawyer v. Naples (66 Me. 453) 
 Saylor u. Montesano (11 Wash. 
 
 328) 135, 138, 139, 176, 
 
 Scales V. Chattahoochee County 
 
 (41 Ga. 226) 
 Scanlon v. Watertown (14 N: Y. 
 
 App. Div. 1) 
 Scannal v. Cambridge (163 Mass. 
 
 91) 
 
 98, 
 105 
 303 
 
 ,299 
 190, 
 
 228 
 
 257 
 205, 
 212 
 
 246 
 145 
 2.32, 
 2.36 
 
 185 
 111 
 242 
 246 
 
 294 
 19, 
 210 
 63 
 189, 
 204 
 265 
 119, 
 195 
 
 247 
 248 
 
 206 
 
 227 
 194 
 
 Schaeffer v. Jackson Tp. (150 Pa. 
 
 St. 145) 167 
 
 Schaefleri-. Sandusky (33 Oh. St. 
 
 246) 236 
 
 Schafer v. New York (154 N. Y. 
 
 466) 132, 150, 223 
 
 Schattner v. Kansas City (53 Mo. 
 
 162) 12 
 
 Schiellein v. Kings County (43 
 
 Barb. 490) 297 
 
 School District u. Williams (38 
 
 Ark. 454) 52 
 
 Schoonmaker u. Wilbraham (110 
 
 Mass. 134) 251 
 
 Schroeder u. Baraboo (93 Wis. 
 
 95) 258, 266, 271 
 
 Schrope v. Pioneer Tp. (82 N. W. 
 
 Rep. 466) 274 
 
 Schuenke v. Pine River (84 Wis. 
 
 669) 196, 211 
 
 Schultz V. Milwaukee (49 Wis. 
 
 254) 156, 314 
 
 Sclmssler u. Hennepin County 
 
 (67 Minn. 412) 8 
 
 Schweickhardt v. St. Louis (2 
 
 Mo. App. 571) 201 
 
 Schwingsehlegl v. Monroe (113 
 
 Mich 68.3) 233 
 
 Scott V. Manchester (1 H. & N. 
 
 59) 50, 69 
 
 Scovil V. Geddings (7 Oh. 211) 102 
 Scoville V. Salt Lake City (11 
 
 Utah, 60) 164 
 
 Scranton v. Catterson (94 Pa. St. 
 
 202) 21, 138, 140, 150 
 
 V. Gore (124 Pa. St. 595) 223 
 
 V. Hill (102 Pa. St. 378) 143 
 
 Seaman v. Marshall (116 Mich 
 
 327) 
 
 V. New York (80 N. Y. 2-39) 
 
 Seamons v. Fitts (20 R. L 443) 
 
 278 
 05 
 151, 
 206 
 168 
 
 Sears v. Dennis (105 Mass. 310) 
 Seele v. Deering (79 Me. 343) 24, .32, 
 
 306 
 Selma v. Perkins (68 Ala. 145) 109 
 Semple v. Vicksburg (62 Miss. 
 
 63) 49 
 
 Sevestre v. New York (47 N. Y. 
 
 Sup. Ct. 341) 197 
 
 Sewall V. St. Paul (20 Minn. 511) 56 
 Seward v. Milford (21 Wis. 485) 151, 
 
 225 
 
 V.Wilmington (2 Marv. 189) 150, 
 
 201 
 
 Sewell V. echoes (75 N. Y. 45) 129, 
 
 134 183 237 
 
 Seymer v. Lake (66 Wis. 651) 'l94, 
 
 238 
 
TABLE OF CASES. 
 
 XXXIU 
 
 Seymour v. Cummins (119 Ind. 
 
 148) 260, 263 
 
 V. Salamanca (137 N. Y. 31)4) 97, 
 132 
 Shadier v. Blair County {136 Pa. 
 
 St. 488) 75, 77, 78, 79, 108 
 
 Slialleross v. Philadelphia (187 
 
 Pa. St. 143) 226 
 
 Shallow V. Salem (136 Mass. 136) 245 
 Shannon v. Tama City (74 la. 
 
 22) 1.32 
 
 Sharp V. New York (40 Barb. 256) 53 
 Shartle v. Minneapolis (17 Minn. 
 
 308) 22, 70, 109, 241 
 
 Shaw V. Crocker (42 Cal 435) 97 
 
 V. Sun Prairie (74 Wis. 105) 216 
 
 V. Waterbury (46 Conn. 263) 242, 
 
 244, 245 
 
 Shea V. Lowell (132 Mass. 187) 244 
 
 Sheehy v. New York (160 N. Y. 
 
 139) 249 
 
 Sheel V. Appleton (49 Wis. 125) 219 
 Sheff V. Huntington (16 W. Va. 
 
 307) 203 
 
 Shelby v. Clagett (46 Oh. St. 549) 22, 
 110, 202, 216, 241 
 Shelby County v. Deprez (87 Ind. 
 
 509) 4, 31, 71, 72 
 
 V. Blair (8 Ind. App. 574) 71, 72, 
 85 
 Sheldon v. Kalamazoo (24 Mich. 
 
 383) 51, 52 
 
 Shelley v. Austin (74 Tex. 608) 178 
 Shepherd v. Chelsea (4 Allen, 
 
 113) 15'i, 167 
 
 Sherbourne v. Yuba County (21 
 
 Cal. 113) 5, 42, 311 
 
 Sheren v. Lowell (104 Mass. 24) 263 
 Sheridan v. Salem (14 Oreg. 328) 110 
 Sherry v. Rochester (62 N. H. 
 
 346) 244 
 
 Sherwood w. District of Columbia 
 
 (3 Mackey, 276) ' 213 
 
 Shinkle v. Covington (1 Bush, 
 
 617) 48, 64, 65 
 
 Shipley v. Bolivar (42 Mo. App. 
 
 401) 210 
 
 Shippy u. Au Sable (85 Mich. 
 
 280) 229 
 
 Shook V. Cohoes (108 N. Y. 648) 206, 
 223, 234 
 Shuter u. Philadelphia (3 Phila. 
 
 228) 60, 68 
 
 Sides V. Portsmouth (59 N. H. 24) 151 
 Siefert .-. Brooklyn (101 N. Y. 
 
 136) 16, 258, 261, 269 
 
 Sikes w. Manchester (59 la. 65) 212 
 Simmer v. St. Paul (23 Minn. 408) 18, 
 
 264 
 
 Simmons v. Camden (26 Ark. 
 
 276) 97 
 
 Simon v. Atlanta (67 Ga. 618) 45 
 
 Simons V. Casco Tp. (105 Mich. 
 
 588) 156, 158 
 
 Simpson v. Keokuk (34 la. 568) 272 
 Sims V. Butler County (49 Ala. 
 
 110) 4 
 
 Sleeper v. Sandown (52 N. H. 244) 221, 
 237 238 
 Slivitski !•'. Wien (93 Wis. 460) ' 138 
 Small V. Danville (51 Me. 359) 5, 
 34,52 
 Smid V. New York (49 N. Y. Sup. 
 
 Ct. 126) 212 
 
 Smith 0. Alexandria (33 Gratt. 
 
 208) 278 
 
 V. Allen County (131 Ind. 
 
 116) 5 
 
 V. Atlanta (75 Ga. 110) 261, 270 
 u. Cairo (48 111. App. 166) 237, 
 239 
 V. Chicago (38 Fed. Rep. 388) 164 
 V. Clarkstown (69 Hun. 155) 173 
 V. County Court (33 W. Va. 
 
 713) 174 
 
 n. Conway (121 Mass. 216) 126 
 V. Dedham (8 Cush. 522) 120 
 
 V. De Moines (84 la. 685) 204 
 V. Gardner (11 Gray, 418) 126 
 V. Gould (61 Wis. 31) 15 
 
 V. Leavenworth (15 Kan. 81) 18, 
 21, 151 
 u. New York (66 N. Y. 295) 20 
 V. Northumberland (36 N.H. 
 
 38) 127, 128 
 
 0. Pella (86 la. 236) 204, 207 
 <;. Rochester (76 N.Y. 506) 25,26, 
 32, 44, 45 
 V. St. Joseph (45 Mo. 449) 180, 233 
 I'. Sedalia (152 Mo. 283) 288 
 
 V. Slierwood Tp. (62 Mich. 
 
 159) 157 
 
 V. Tripp (13 R. I. 152) 275 
 
 </. Wakefield (105 Mass. 47.3) 134 
 
 141, 142 
 
 w. Walker Tp. (117 Mich. 14) 166, 
 
 236 
 
 V. Washington (20 How. 135) 98 
 
 V. Wendell (7 Cush. 498) 143 
 
 Smoot V. Wetumpka (24 Ala. 112) 1.3, 
 
 17,109 
 
 Smythe v. Bangor (72 Me. 240) 161 
 
 Snow V. Adams (1 Cusli. 443) 137, 
 
 140, 144 
 
 Snyder v. Rockport (6 Ind. 237) 97 
 
 Sohn V. Cambern (106 Ind. 302) 120 
 
 Solomon v. Kingston (24 Hun, 
 
 562) 294, 295, 297 
 
XXXIV 
 
 TABLE OP CASES. 
 
 Soper V. Henry County (26 la. 264) i, 
 8, 70, 107 
 Sorento v. Johnson (52 111. App. 
 
 659) 205 
 
 South Bend v. Faxon (67 Ind. 
 
 228) 265 
 
 South Omaha v. Cunningham (31 
 
 Neb. 316) 190, 193 
 
 South Ottawa u. Foster (20 111. 
 
 296) 106 
 
 Southwell V. Detroit (74 Mich. 
 
 438) 136, 177, 196 
 
 Sowle V. Toraah (81 Wis. 349) 242, 
 245, 246 
 Spangler v. San Francisco (84 
 
 Cal. 12) 17,'262, 265 
 
 Sparhawk v. Salem (1 Allen, 30) 148, 
 
 191, 192 
 
 Spauldingv. Sherman (75 Wis. 77) 79, 
 
 89 
 V. Winslow (74 Me. 528) 174 
 Spear v. Lowell (47 Vt. 692) 182 
 
 Speir V. New Utrecht (121 N. Y. 
 
 420) 129 
 
 Spellman v. Chicopee (131 Mass. 
 
 443) 162, 244 
 
 Spelman v. Portage (41 Wis. 
 
 144) 285 
 
 Spiceland v. Alier (98 Ind. 467) 210 
 
 Sprague v. Tripp (13 R. I. 88) 30, 54 
 
 V. Worcester (13 Gray, 193) 285, 
 
 286 
 
 Spring V. Hyde Park (137 Mass. 
 
 554) 42 
 
 Springer v. Bowdoinham (7 Me. 
 
 442) 207 
 
 Springfield v. Le Claire (49 III. 
 
 476) 18, 203 
 
 V. Rosenmeyer (52 III. App. 
 
 301) 2.35 
 
 V. Spense (39 Oh. St. 665) 257, 
 
 271 
 
 Sproul V. Seattle (17 Wash. 256) 177, 
 
 180, 182, 188, 219 
 
 Sprowls V. Morris Tp. (179 Pa. St. 
 
 219) 223 
 
 Squires c. Chillicothe (89 Mo. 
 
 226) 180, 215 
 
 Stack V. Portsmouth (52 N. H. 
 
 221) 151, 193, 225 
 
 Stacy V. Phelps (47 Hun, 54) 171, 198 
 Stafford v. Oskaloosa (57 la. 748) 21, 
 
 137 
 Staley v. New York (37 N. Y. 
 
 App. Div. 598) 161 
 
 Stanchfield v. Newton (142 Mass. 
 
 110) 280 
 
 Stanford v. San Francisco (HI 
 Cal. 198) 279 
 
 Stanley v. Davenport (54 la. 
 
 463) 189 
 
 Stanton v. Salem (145 Mass. 476) 181, 
 
 201 
 
 V. Springfield (12 Allen, 566) 161 
 
 Staples V. Canton (69 Mo. 592) 86, 
 
 223 
 Stark V. Lancaster (57 N. H. 88) 145, 
 
 172 
 Starling v. Bedford (94 la 194) 242, 
 
 243 
 State of Louisiana v. New Orleans 
 
 (109U. S. 285) 293 
 
 Stebbins v. Keene Tp. (60 Mich. 
 
 214) . 90 
 
 Stein V. Council Bluffs (72 la. 180) 203 
 Stephani v. Manitowoc (89 Wis. 
 
 467) 81,87,92 
 
 Stephens v. Macon (83 Mo. 345) 136, 
 
 188, 189, 196, 204, 224 
 
 Sterling v. Thomas (60 111. 264) 18, 
 
 109, 150, 199 
 
 Steubenville v. McGill (41 Oh. 
 
 St. 235) 187 
 
 Stevens v. Logansport (76 Ind. 498) 224 
 V. Walpole (70 Mo. App. 
 213) 234 237 
 
 Stewart v. Clinton (79 Mo. 603) ' 98, 
 105, 276 
 V. Nashville (96 Tenn. 50) 237 
 V. New Orleans (9 La. An. 
 461) , E9, 41 
 
 Stiokney v. Maidstone (30 Vt. 
 
 738) 166, 170 
 
 V. Salem (3 Allen, 374) 121, 123 
 Stier V. Oskaloosa (41 la. 353) 231 
 Stilling V. Thorp (54 Wis. 528) 111 
 Stinson v. Gardiner (42 Me. 248) 122, 
 123, 183 
 Stock V. Boston (149 Mass. 410) 67, 
 
 263 
 Stockwell V. Fitchburg (110 
 
 Mass. 305) 143, 146, 190 
 
 Stoddard v. Saratoga Springs (4 
 
 N. Y. Supp. 745) 288 
 
 V. Winchester (154 Mass. 149) 212, 
 213, 219 
 Stone V. Attleborough (140 Mass. 
 
 328) 146, 190 
 
 V. Augusta (46 Me. 127) 285 
 
 V. Hubbardston (100 Mass. 
 
 49) 163, 175 
 
 V. Langworthy (20 R. I. 602) 127, 
 
 157 
 
 V. New York (25 Wend. 157) 302 
 
 V. Poughkeepsie (15 N. Y. 
 
 App. Div. 582) 163 
 
 Storrs V. Utica (17 N. Y. 104) 18, 196 
 
 Streatori). Chrisman (182 111. 215) 208 
 
TABLE OF CASES. 
 
 XXXV 
 
 Page 
 Streator v. Liebendorfer (71 111. 
 
 App. 625) 179 
 
 Street v. New Orleans (32 La. An. 
 
 577) 295 
 
 Strieker v. Eeedsburg (101 Wis. 
 
 457) 143 
 
 Strong V. Stevens Point (62 Wis. 
 
 255) 123 
 
 Stuart V. Machias Port (48 Me. 
 
 477) 238 
 
 Sullivan v. Helena (10 Mont. 
 
 134) 109 
 
 V. Syracuse (77 Hun, 440) 244 
 Sullivan County v. Sisson (2 Ind. 
 
 App. 311) 72, 80, 86 
 
 Summers v. Daviess County (103 
 
 Ind. 262) 42, 311 
 
 Susenguth v. Rantoul (48 Wis. 
 
 334) 242 
 
 Susquelianna Depot v. Simmons 
 
 (112 Pa. St. 384) 189 
 
 Sussex V. Strader (18 N. J. L. 108) 6 
 Sutphen V. North Hempstead (80 
 
 Hun, 409) 221, 237 
 
 Sutter I'. Young Tp. (130 Pa. St. 
 
 72) 151 
 
 Sutton 0. Board of Police (41 
 
 Miss. 236) 6, 3.3, 107 
 
 V. Snoliomish (11 Wash. 24) 110, 
 188, 196, 197, 199, 209, 210 
 Sweeney v. Butte City (15 Mont. 
 
 274) 237 
 
 Sykes v. Pawlet (43 Vt. 446) 121, 122, 
 
 143 
 Symonds v. Clay County (71 111. 
 
 355) 5 
 
 Taake v. Seattle (18 Wash. 178) 130 
 Tainter v. Morristown (19 N. J. 
 
 Eq. 46) ,305 
 
 V. Worcester (123 Mass. 311) 13, 
 
 36 
 
 Talbot V. Taunton (140 Mass. 552) 84 
 
 Tallahassee v. Fortune (3 Fla. 
 
 19) 18, 109, 191 
 
 Talty V. Atlantic (92 la. 135) 191 
 Tarras v. Winona (71 Minn. 22) 195 
 Tasker v. Farraingdale (85 Me. 
 
 523) 142 
 
 v.Farmingdale(91 Me. 521) 224 
 
 Tate V. St. Paul (56 Minn. 527) 261, 
 
 269, 279 
 
 Tatman v. Benton Harbor (115 
 
 Mich. 695) 121 
 
 Taubman v. Lexington (25 Mo. 
 
 App. 218) 128, 132, 204 
 
 Taylor v. Austin (32 Minn. 247) 265, 
 
 266 
 V. Davis County (40 la. 295) 4 
 
 Page 
 Taylor v. New York (4 E. D. 
 
 Smith, 559) 66 
 
 V. Owensboro (98 Ky. 271) 39 
 
 V. Peckliam (8 R. I. 349) 111, 
 
 118, 153 
 
 V. Plymouth (8 Met. 462) 300, 
 
 301, 302, 303 
 
 V. St. Louis (14 Mo. 20) 98 
 
 V. Woburn (130 Mass. 494) l.SO, 
 
 137, 247, 249 
 
 V. Yonkers (105 N. Y. 202) 161, 
 
 164 
 
 Templeton u. Linn County (22 
 
 Oreg. 313) 6, 107 
 
 V. Montpelier (56 Vt. 328) 234 
 Templin v. lo-wa City (14 la. 59) 50 
 Terhune v. New York (88 N. Y. 
 
 247) 44 
 
 Terre Haute v. Hudnut (112 Ind. 
 
 542) 15 
 
 V Turner (36 Ind. 522) 97 
 
 Territory v. Cascade County (8 
 
 Mont. 396) 6 
 
 Terry v. New York (8 Bosw. 504) 67 
 Thayer v. Boston (19 Pick. 511) 9, 
 30, 53 
 Theall v. Yonkers (21 Hun, 265) 33 
 Theissen v. Belle Plaine (81 la. 
 
 118) 197,212 
 
 Tlie King v. West Riding of York 
 
 (7 East, 588) 70 
 
 The Mayor v. Randolph (4 W. & 
 
 S. 514) 98 
 
 Thomas v. Findlay (6 Oh. C. C. 
 
 241) 45 
 
 Thompson v. Bridgewater (7 Pick. 
 
 188) 168,221,224,226 
 
 V. New York (52 N. Y. Sup. 
 
 Ct. 427) 44 
 
 V. Polk County (38 Minn. 130) 7 
 
 V. Qnincy (83 Mich. 173) 253 
 
 u. Saratoga Springs (22 N. Y. 
 
 App. Div. 186) 163 
 
 Thurston v. St. Joseph (51 Mo. 
 
 510) 263, 278 
 
 Tice V. Bay City (84 Mich. 461) 211, 
 
 214 
 Tighe V. Lowell (119 Mass. 472) 123 
 Tilton V. Pittsfield (58 N. H. 327) 127, 
 
 131 
 
 V. Wenham (172 Mass. 407) 137 
 
 Tindley v. Salem (137 Mass. 171) 34, 
 
 47 
 Tinkham v. Stockbridge (64 Vt. 
 
 480) 70, 73 
 
 Tisdalet). Bridgewater (167 Mass. 
 
 248) 193, 194 
 
 Titus u. Northbridge (97 Mass. 
 258) 173, 174 
 
XXXVl 
 
 TABLE OF CASES. 
 
 Page 
 
 Tobey v. Hudson (40 Hun, 318) 162 
 
 Todd V. Rome (2 Me. 55) 128 
 
 V. Rowley (8 Allen, 51) 125 
 
 0. Troy (61 N. Y. 506) 21, 160, 
 
 162, 163, 209 
 
 Toledo V. Cone (41 Oh. St. 149) 57 
 
 Toolan v. Lansing (38 Mich. 315) 14 
 
 Topeka v. Sherwood (89 Kan. 
 
 690) 250, 254 
 
 !). Tuttle (5 Kan. 311) 100 
 
 Torbush v. Norwich (38 Conn. 
 
 225) 14, 44 
 
 Tormey o. New York (12 Hun, 
 
 542) 42 
 
 Torrey u. Scranton (133 Pa. St. 
 
 173) 279 
 
 Trammell v. Russellville (34 Ark. 
 
 105) 36, 39, 40 
 
 Transportation Co. v. Chicago 
 
 (99 U. S. 6.35) 98 
 
 Trapnell v. Red Oak Junction 
 
 (76 la. 744) 254 
 
 Treadway v. Sclinauber (1 Uak. 
 
 Ter. 236) 30, 32 
 
 Treadwell v. New York (1 Daly, 
 
 123) 54 
 
 Treise v. St. Paul (36 Minn. 526) 
 
 129, 130 
 Trescott v. "Waterloo (26 Fed. 
 
 Rep. 592) 39 
 
 Trexier ». Greenwich Tp. (168 
 
 Pa. St. 214) 191 
 
 Tritz V. Kansas City (84 Mo. 6.32) 
 
 134, 176 
 Troxel ;;. Vinton (77 la. 90) 233 
 
 Troy V. Coleman (58 Ala. 570) 279 
 Tucker u. Henniker (41 N. H. 
 
 317) 221 
 
 Tuell V. Paris (23 Me. 556) 207 
 
 Tuffree v. State Center (67 la. 
 
 5.38) 224 
 
 Turner v. Indianapolis (96 Ind. 
 
 51) . 57, 124 
 
 V. Newburgh (109 N. Y. 301) 178, 
 202, 264 
 Tuttle V. Lawrence (119 Mass. 
 
 276) 125 
 
 Twogood V. New York (102 N. Y. 
 
 216) 206 
 
 Tyler v. Williston (62 Vt. 269) 70 
 Tyson v. Milwaukee (60 Wis. 78) 100 
 
 Undekhili, v. Manchester (45 
 
 N. H, 214) 292, 298 
 
 V. "Washington (46 "Vt. 767) 243 
 Union v. Durkes (38 N. J. L. 21) 276 
 Urquhart i\ Ogdensburg (91 
 
 N. Y. 67) 97, 147, 176 
 
 Urtel V. Flint (122 Mich. 65) 233 
 
 Page 
 "Vail v. Amenia (4 N. Dak. 239) 6, 
 
 107 
 Vale Mills v. Nashua (63 N. H. 
 
 136) 279 
 
 Valparaiso v. Cartwright (8 Ind. 
 
 App. 429) 265 
 
 Vandalia d. Huss (41 111. App. 
 
 517) 156, 157 
 
 Vanderslice u. Philadelphia (103 
 ^Pa. St. 102) 56, 264, 265, 268 
 
 Vanhorn v. De Moines (03 la. 
 
 447) 12, 13, 20 
 
 Van Pelt v. Davenport (42 la. 
 
 308) 14, 29, 36, 258, 259 
 
 Van Valkenburgh v. New York 
 
 (43 Barb. 109) 28 
 
 Van "Winter v. Henry County (61 
 
 la. 684) 87 
 
 Varney v. Manchester (68 N. H. 
 
 430) 122 
 
 Vass V. Waukesha (90 "Wis. 337) 139 
 Vaught V. Johnson County (101 
 
 Ind. 123) 4 
 
 Veale v. Boston (135 Mass. 187) 128 
 Veazie v. Rockland (63 Me. 511) 243, 
 
 248 
 Vermillion County i'. Chipps (131 
 
 Ind. 56) 77, 81, 82, 85, 90 
 
 Vicksburg v. Hennessy (54 Miss. 
 
 391) 18, 178, 180 
 
 Village u. Kallagher (52 Oh. St. 
 
 183) 20, 119, 141, 154, 178 
 
 Vinal D.Dorchester (7 Gray, 421) 287 
 Vogel V. West Plains (73 Mo. 
 
 App. 588) 169, 170, 171 
 
 Vogelgesang «. St. Louis (139 Mo. 
 
 127) 109, 169, 172 
 
 Vosper V. New York (49 N. Y. 
 
 Sup. Ct. 296) 154 
 
 Wabash v. Alber (88 Ind. 428) 100 
 V. Carver (129 Ind. 552) 77,78 
 Wabash County v. Pearson (120 
 
 Ind. 426) 81, 90, 92, 202 
 
 Wahoo V. Reeder (27 Neb. 770) 109 
 
 Wakefield v. Newell (12 R. L 75) 98, 
 
 105, 276 
 
 V. Newport (60 N. H. 374) 2.5, 32 
 
 Wakeham v. St. Clair Tp. (91 
 
 Mich. 15) 142, 196, 201, 21 3, 221, 223 
 Walcott V. Swampscott (1 Allen, 
 
 101) 47 
 
 Waldron v. Haverhill (143 Mass. 
 
 582) 48 
 
 Walker «. Hallock (32 Ind. 2.39) 13 
 V. Point Pleasant (49 Mo. 
 
 App. 244) 94 
 
 V. Vicksburg (71 Miss. 899) 125, 
 
 180 
 
TABLE OP CASES. 
 
 XXXVll 
 
 Page 
 
 Wall V. Highland (72 Wis. 435) 225 
 
 Wallace v. Metiasha (48 Wis. 79) 46 
 
 V. Muscatine (4 Greene, 373) 18, 
 
 49, 263 
 
 V. Norman (9 Okl. 339) 23 
 
 Waller u. Dubuque (69 la. 541) 47 
 
 Walling V. Shreveport (5 La. An. 
 
 660) 53 
 
 Waltham v. Kemper (65 111. 346) 106, 
 
 112 
 Walton V. Travis County (5 Tex. 
 
 Civ. App. 525) 6 
 
 Ward V. Hartford County (12 
 
 Conn. 404) 5 
 
 V. Jefferson (24 Wis, 342) 137, 202 
 
 V. Louisville (16 B. Mon. 184) 290, 
 
 291 
 
 u. North Haven (43 Conn. 
 
 148) 172 
 
 Warner v. Holyoke (112 Mass. 
 
 362) 144, 194 
 
 Warsaw v. Dunlap (112 Ind. 576) 188, 
 189, 190, 201, 204 
 Washburn & Moen Co. o. Worces- 
 ter (116 Mass. 458) 288 
 Washer v. Bullitt County (110 
 
 U. S. 558) 70 
 
 Washington v. Small (86 Ind. 462) 219 
 Waters v. Bay View (61 Wis. 
 
 612) 2.-)8, 271, 276 
 
 Watkins v. Preston County Court 
 
 (30 W. Va. 657) 7 
 
 Watseka o. Smith (75 111. App. 
 
 391) 227 
 
 Watson V. Kingston (114 N. Y. 88) 147, 
 
 276 
 
 D.Tripp (11 R. L 98) 187 
 
 Weber v. Creston (75 la. 16) 213, 252 
 
 V. Greenfield (74 Wis. 234) 245 
 
 Webster i\ Beaver Dam (84 Fed. 
 
 Rep. 280) 248 
 
 V. Hillsdale County (99 Mich. 
 259) 6 
 
 Weed V. Ballston Spa (76 N, Y. 
 
 329) 140, 212, 225, 241 
 
 Weeks «. Needham (156 Mass. 
 
 289) 185, 255 
 
 ,). Parsonsfield (65 Me. 285) 139 
 
 Weet K. Brockport (16N. Y. 161) 18, 
 
 109, 112 
 
 Wegmann v. Jefferson (61 Mo. 55) 103 
 
 Wehn V. Gage County (5 Neb. 
 
 494) 6 
 
 Weightman v. Washington (1 
 
 Black, 39) 19,110,112 
 
 Weinstein v. Terre Haute (147 
 
 Ind. 556) 138 
 
 Weirs v. Jones County (80 la. 
 351) 88 
 
 Page 
 
 Weirs v. Jones County (86 la. 625) 198 
 
 Weis V. Madison (75 Ind, 241) 262 
 
 270, 280, 281 
 
 Weisenburg y. Appleton (26 Wis. 
 
 56) 215 
 
 Welch V. Gardner (133 Mass, 529) 
 
 244, 246 
 Weller «. Burlington (60 Vt. 28) 166 
 Wellington v. Gregson (31 Kan. 
 
 991 21, 134, 137, 1-39, 142, 149 
 
 WeUman c. Susquehanna Depot 
 
 (167 Pa. St. 239) 193 
 
 Welsh V. Amesbury (170 Mass. 
 
 437) 151,181,201,218 
 
 V. Argyle (89 Wis, 649) 236 
 
 V. Lansing (111 Mich. 689) 197, 
 
 198 
 
 „. Rutland (56 Vt, 228) 44 
 
 D. St. Louis (73 Mo. 71) 18,177 
 
 Wendell v. Troy (39 Barb. 329) 19 
 
 Wentworth i'. Rochester (63 N. 
 
 H. 244) 131 
 
 V. Summit (60 Wis, 281) 242, 243 
 
 Werner y, Rochester (77 Hun, 33) 245 
 
 West V. Eau Claire (89 Wis, 31) 226 
 
 V. Lynn (110 Mass. 514) 153 
 
 Western College u. Cleveland (12 
 
 Oh. St. 375) 9, 36, 290, 291 
 
 Western, etc. Society v. Phila- 
 delphia (31 Pa, St. 175) 09 
 Westfield v. Tioga County (150 
 
 Pa. St. 152) 70, 73 
 
 Weston V. Troy (139 N. Y. 281) 227, 
 
 234 
 
 Wheatly v. Mercer (9 Bush, 704) 107 
 
 Wlieaton v. Hadley (131 ID, 640) 217 
 
 Wheeler r. Boone ( 108 la, 235) 178 
 
 V. Cincinnati (19 Oh, St. 19) 12, 
 
 13,44 
 
 u. Framingham (12 Cush. 
 
 287) 253 
 
 V. Plymouth (116 Ind. 158) 57, 
 315 
 «. Troy (20 N. H. 77) 107 
 
 C-. Westport (30 Wis, 392) 139, 
 146 
 V. Worcester (10 Allen, 591) 
 
 282, 285, 286 
 Whipple V. Fair Haven (63 Vt. 
 
 221) 279 
 
 Whitcher v. SomervilIe(138 Mass. 
 
 454) 74 
 
 White V. Ballard (19 Wash. 284) 173 
 
 V. Bond County (58 111. 297) 6, 
 
 107 
 
 V. Boston (122 Mass. 491) 136, 
 
 196 199 
 
 V. Charleston (2 Hill L. 571)' 
 
 300, 301 
 
XXXVIU 
 
 TABLE OP CASES. 
 
 White V. Chowan County (90 
 
 N. C. 437) 2, 3, 6, 107 
 
 V. Quincy (97 Mass. 430) 74 
 
 V. Stowe (54 Vt. 510) 242, 244, 
 245 
 V. Vassalborougb (82 Me. 67) 245 
 V. Yazoo City (27 Miss. 357) 98 
 White's, etc. Turnpike Co. v. 
 
 Davidson County (14 Lea, 73) 6 
 Whitfield V. Meridian (66 Miss. 
 
 570) 22, 184, 209, 214, 240 
 i;. Paris (84 Tex. 431) 40 
 
 Whitford ;•. Southbridge (119 
 
 Mass. 564) 167 
 
 Whitman v. Groveland (131 
 
 Mass. 553) . 70, 242, 247 
 
 Whitney v. Essex (42 Vt. 520) 128, 
 
 130, 145 
 
 V. Ticonderoga (127 N Y. 40) 138 
 
 Whoram r. Argentine Tp. (112 
 
 Mich 20) 227 
 
 Wicks V. De Witt (54 la. 130) 14, 259 
 Wieting v. Millston (77 Wis. 523) 
 
 246, 249 
 Wilcox V. Chicago (107 111. 334) 26, 
 
 43,44 
 Wild V. Paterson (47 N.J. L. 406) 43, 
 45,57 
 Wilde V. New Orleans (12 La. 
 
 An 15) 30 
 
 Wilder v. St. Paul (12 Minn.. 192) 128 
 Wilkins v. Rutland (61 Vt. 336) 67, 
 
 118 
 
 t. Wilmington (2Marv. 132) 223 
 
 WilU.Mendon (108 Mich. 251) 129, 
 
 216 
 Willard v. Cambridge (3 Allen, 
 
 574) 120 
 
 V.Newbury (22 Vt. 458) 1.39,151 
 V. Sherburne (59 Vt. 361) 118, 248 
 Willey V. Allegheny (118 Pa. St. 
 
 490) 64 
 
 V. Ellsworth (64 Me. 57) 143, 
 
 190, 191 
 
 «.Portsmouth(35N. H 303) 128, 
 
 133, 143, 144, 145, 187, 190 
 
 Williams v. Clinton (28 Conn. 
 
 264) 231, 232 
 
 V. Grand Rapids (59 Mich. 
 
 51) 97 
 
 u. Lawrence (113 Mass. 506) 163 
 c;. Leyden (119 Mass. 237) 168 
 V. New Orleans (23 La. An. 
 
 507) 292, 296 
 
 V. Tripp (11 R. I. 447) 120 
 
 Williamsport v. Lisk (21 Ind. 
 
 App. 414) 232 
 
 Willson V. Boise City (55 Pae. 
 Kep. 887) 286 
 
 Page 
 Wilmington v. Vandegrift (1 Marv. 
 
 5) 156 
 
 Wilson V. Atlanta (60 Ga. 473) 170 
 V. Boston (117 Mass. 509) 130 
 V. Charlestown (8 Allen, 13T) 
 
 236, 240 
 
 ^. Granby (47 Conn. 59) 77, 78, 
 
 178, 183 
 
 V. Halifax (L. R. 3 Exch. 114) 13 
 
 V. Jefferson County (13 la. 
 
 181) 4, 70, 108 
 
 V. New Bedford (108 Mass. 
 
 261) 60,67 
 
 V. New York (1 Den. 595) 12, 
 
 14, 33, 36, 98, 257, 258, 276 
 
 V. Troy (60 Hun, 183) 151 
 
 V. Troy (135 N. Y. 96) 203 
 
 V. WheeUng (19 W. Va. 323) 19, 
 
 20. 110, 130,140, 196 
 
 Wiltse V. Tilden (77 Wis. 152) 151, 
 
 196, 217 
 
 Winbigler o. Los Angeles (45 
 
 Cal. 36) 111 
 
 Wing Chung v. Los Angeles (47 
 
 Cal. 531) 296, 298 
 
 Winnu. Lowell (1 Allen, 177) 237 
 
 V. Rutland (52 Vt. 481 ) 19,.259, 
 
 263, 266, 269, 279 
 
 Winner v. Oakland Tp. (158 Pa. 
 
 St. 405) 236 
 
 Winship v. Enfield (42 N. H. 197) 
 
 109, 172, 186 
 Witham v. Portland (72 Me. 639) 151 
 Wixon V. Newport (13 R. I. 
 
 454) 312 
 
 Wood V. Tipton County (7 Baxt. 
 
 112) 6, 107 
 
 V. Waterville (5 Mass. 294) 125 
 Woodbury v. Owosso (64 Mich. 
 
 239) 201 
 
 Woodcock V. Calais (66 Me. 234) 34, 
 
 47, 52 
 
 V. Worcester (138 Mass. 268) 253 
 
 Woodman v. Nottingham (49 N. H. 
 
 387) 193 
 
 Woods V. Boston (121 Mass. 337) 226 
 V. Colfax County (10 Neb. 
 
 552) 6 
 
 V. Groton (111 Mass. 357) 160 
 V. Kansas City (58 Mo. App. 
 
 272) ■ 265, 267 
 
 V. Tipton County (128 Ind. 
 289) 238 
 
 Woodward u. Worcester (121 
 
 Mass. 245) 269 
 
 Woolsey v. EUenville (61 Hun, 
 
 1.36) 162 
 
 Worden v. New Bedford (131 
 Mass. 23) 48, 62, 63 
 
TABLE OP CASES. 
 
 XXXIX 
 
 Page 
 Worley v. Columbia (88 Mo. 106) 25, 
 32, 40, 315 
 Worrilow v. Upper Chichester 
 
 Tp. (149 Pa. St. 40) 143 
 
 Worthington v. Morgan (17 Ind. 
 
 App. 603) 109 
 
 Wright V. Augusta (78 Ga. 241) 13 
 
 v. Templeton (132 Mass. 49) 174 
 
 w. Wilmington (92 N. C. 156) 15, 
 
 20. 262 
 
 Wyandotte v. Gibson (25 Kan. 
 
 236) 196 
 
 t). White (13 Kan. 191) 221 
 
 Wyatt W.Rome (105 Ga. 312) 310,315 
 Wyman v. Philadelpliia (175 Pa. 
 
 St. 117) 162, 164 
 
 Wymore v. Mahaska County (78 
 la. 396) 229 
 
 Yates v. Milwaukee (10 Wall. 
 
 497) 304 
 
 Yeaw V. Williams (15 R. I. 20) 137, 
 1.39, 175 
 Yoders v. Amwell Tp. (172 Pa. 
 
 St. 447) - 166 
 
 Yordy v. Marshall County (86 la. 
 
 340) 77, 78, 85 
 
 Young V. Charleston (20 S. C. 
 
 116) 111 
 
 V. Commissioners of Roads 
 
 (2 N. & McC. 637) 6 
 
 V. District of Columbia (3 Mac- 
 
 Artliur, 137) 143 
 
 V. Douglas (157 Mass. 383) 247 
 u. Kansas City (27 Mo. App. 
 
 101) 285 
 
 V. New Haven (39 Conn. 435) 166 
 
 V. Waterville (39 Minn. 196) 109, 
 
 126 
 
 Youngstown v. Moore (30 Oh. St. 
 
 133) 102 
 
 Yule V. New Orleans (25 La. An. 
 394) 14 
 
 Zanesville v.Fannan (53 Oh. St. 
 
 605) 187 
 
 Zettler v. Atlanta (66 Ga. 195) 143, 
 
 190 
 Zimmerman u. Conemaugh Tp. 
 
 (5 Atl. Rep. 45) 75 
 
THE LIABILITY OF 
 
 MUNICIPAL CORPORATIONS 
 FOR TORT. 
 
 CHAPTER I. 
 
 THE GENERAL PRINCIPLES OP THE LIABILITY. 
 
 §1. The Possibilities of the Subject. — The impossibility 
 of framing any general proposition which will include 
 all the torts for which public corporations have been held 
 responsible in a private action at common law appears to 
 be conceded by both judges and text writers.^ Although 
 this may be so, it is, nevertheless, quite possible to point 
 out the rules that govern the liability for tort of such 
 corporations in each class of cases, together with the gen- 
 eral principles of law upon which they rest, since for the 
 most part they have become clear and well settled. In 
 getting at those rules and principles, three considerations 
 are of primary importance. They are briefly : First, the 
 character of the corporate body that is sought to be charged 
 with liability for the tort; Second, the nature of the duty 
 from the breach of which the tort resulted ; Third, the 
 means at the command of the corporation for the perform- 
 ance of that duty. 
 
 § 2. The Character of the Corporation. — In the United 
 States two classes of public corporations, commonly known 
 
 1 See Conway v. Beaumont, 61 Tex. 10, 12 (1884) ; Dillon, Munici- 
 pal Corporations, 4th ed., § 948. 
 
Z LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 to the law as quasi corporations and municipal corpora- 
 tions proper, each of which is, in certain important par- 
 ticulars, distinct in character from the other, have long 
 heen recognized by all courts, and have furnished the 
 subject for much legal discussion. It has happened, 
 therefore, that the distinctions between them have been 
 frequently pointed out, and have now for the most part 
 become clear and well settled.^ 
 
 It is universally agreed that all those subdivisions of 
 state territory, such as counties, townships, school dis- 
 tricts, and like bodies,^ which are created by the legisla- 
 ture for public purposes and without regard to the wishes 
 of their inhabitants, are to be included in the class known 
 as quasi corporations. They are in essence local branches 
 of the state government, though clothed with a corporate 
 form in order that they may the better perform the duties 
 imposed upon them. Generally they comprise large areas 
 of territory which are but sparsely settled, and the rela- 
 tions of life and business existing within them are 
 extremely simple.^ 
 
 Municipal corporations proper, on the other hand, com- 
 prise all those portions of territory, such as cities, bor- 
 oughs, and Tillages, which have been incorporated at the 
 request of, or with the assent of, their inhabitants, by 
 special charter, or have been voluntarily organized under 
 general laws. They are not simply local branches of the 
 state government, as are all quasi corporations, but are 
 given a much wider range, and greater variety, of powers 
 and duties. It is also to be observed that the public bodies 
 
 1 Hamilton County v. Mighels, 7 Oh. St. 109 (1857), and cases 
 cited post. 
 
 ^ In this category New England towns are also commonly included. 
 
 3 El Paso County v. Bish, 18 Col. 474 (1893), (33 Pac. Rep. 184); 
 White V. Commissioners of Chowan, 90 N. C. 437 (1884), and cases 
 cited on page 4, note 2. 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 3 
 
 of this class are usually characterized by the fact that 
 they are confined within comparatively small and compact 
 limits, that they are thickly settled, and that the rela- 
 tions of life and business within them have a far greater 
 degree of complexity. ^ 
 
 The chief lines of differentiation between these two 
 classes of public corporations, it will be noticed, lie in the 
 presence or absence of the element of consent to their 
 creation; in the breadth or narrowness of the powers and 
 duties given to them ; in the complexity or simplicity of 
 the relations of life existing within them. 
 
 § 3. Quasi Corporations. — Quasi corporations are terri- 
 torial and political sections of the state, created by the 
 sovereign power without reference to the wish of the in- 
 habitants and solely for public and governmental purposes. 
 They are simply the agencies or auxiliaries that the state 
 has established for the purpose of aiding in the general 
 administration of the state government. Thus, though 
 given a corporate form, the sole object and reason of their 
 creation is that the state may through them the more con- 
 veniently and effectively discharge those duties which as 
 an organized government it owes to all its citizens in re- 
 spect to matters local in character and requiring local 
 supervision and control. It is through them in large 
 measure that the powers of the state government reach and 
 operate upon the people. It follows, therefore, that all 
 the powers with which quasi corporations are intrusted 
 are powers of the state, and all the duties with the per- 
 formance of which they are charged are duties of the 
 state. ^ Being then simply governmental instrumentali- 
 
 1 See Galveston v. Posnainsky, 62 Tex. 118 (1884) ; Barnes v. Dis- 
 trict of Columbia, 91 U. S. 540 (1875), and cases cited in § 4. 
 
 "' See Galveston v. Posnainsky, 62 Tex. 118 (1884); White w. Com- 
 missioners of Chowan, 90 N. C. 437 (1884); Eikenberry v. Township 
 
4 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 ties, charged with the performance of governmental duties 
 and with nothing more, the rule that sovereignty is not 
 amenable to the suit of a private individual for neglect in 
 the discharge of public duties is extended to them, and by 
 an almost unanimity of decision ^ the courts hold that 
 quasi corporations are not liable for negligence or mis- 
 feasance in the performance of the duties thrust upon 
 them, unless such liability is expressly created by 
 statute.''' 
 
 of Bazaar, 22 Kan. 556, 560 (1879) ; Madden v. Lancaster County, 65 
 Fed. Rep. 188 (1894). 
 
 1 This rule, however, is not quite universal. In three states a 
 narrow line of cases which depart from this rule may be found. Thus 
 in Iowa it has become the settled doctrine that counties are respon- 
 sible at common law for the safe condition of county bridges. Wilson 
 V. Jefferson County, 13 la. 181 (1862) ; Brown v. Jefferson County, 16 
 la. 339 (1864) ; McCullom v. Black Hawk County, 21 la, 409 (1866); 
 Soper V. Henry County, 26 la. 264 (1868) ; Taylor v. Davis County, 
 40 la. 295 (1875) ; Krause v. Davis County, 44 la. 141 (1876) ; Fergu- 
 son V. Davis County, 57 la. 601 (1881), (10 N. W. Rep. 906) ; Huff v. 
 Poweshiek County, 60 la. 529 (1883), (15 N. W. Rep. 418). This 
 same narrow rule prevails also in Pennsylvania. Humphreys v. Arm- 
 strong County, 56 Pa. St. 204 (1868) ; Rigony v. Schuylkill County, 
 103 Pa. St. 382 (1883). And formerly prevailed in Indiana. House 
 V. Board of Commissioners, 60 Ind. 580 (1878) ; Board of Commis- 
 sioners V. Pritchett, 85 Ind. 68 (1882) ; Board of Commissioners v. 
 Deprez, 87 Ind. 509 (1882); Board of Commissioners v. Brown, 89 
 Ind. 48 (1883) ; Board of Commissioners v. Legg, 93 Ind. 523 (1883) ; 
 Board of Commissioners u. Emraerson, 95 Ind. 579 (1884) ; Board of 
 Commissioners v. Bacon, 96 Ind. 31 (1884) ; Patton v. Board of Com- 
 missioners, 96 Ind. 131 (1884) ; Vaught v. Board of Commissioners, 
 101 Ind. 123 (1884). This doctrine was reviewed, and the above line 
 of Indiana cases overruled, in Jasper County u. Allman, 142 Ind. 573 
 (1895), (42 N. E. Rep. 208). In Maryland counties are held liable for 
 injuries resulting from defects in the highway. Anne Arundel County 
 V. Duokett, 20 Md. 468 (1863) ; Calvert County v. Gibson, 36 Md. 
 229 (1872); Baltimore County v. Baker, 44 Md. 1 (1875); Eyler m. 
 Allegany County, 49 Md. 257 (1878). 
 
 2 Alabama. Covington County v. Kinney, 45 Ala. 176 (1871); 
 Barbour County v. Horn, 48 Ala. 566 (1872); Sims v. Butler 
 County, 49 Ala. 110 (1873) ; Askew v. Hale County, 54 Ala. 639 
 
THE GENERAL PRINCIPLES OF THE LIABILITY. 5 
 
 A quasi corporation may, however, by its own voluntary 
 act, become something more than the mere governmental 
 
 (1875); Lee County v. Yarbrough, 85 Ala. 590 (1888), (5 So. Rep. 
 341). 
 
 Arkansas. Granger v. Pulaski County, 26 Ark. 37 (1870). 
 
 California. Huffman y. San Joaquin County, 21 Cal. 426 (1863) ; 
 Sherbourne v. Yuba County, 21 Cal. 113 (1862) ; Crowell v. Souoma 
 County, 25 Cal. 313 (1864) ; Barnett v. Contra Costa County, 67 Cal. 
 77 (1885), (7 Pao. Rep. 177). 
 
 Colorado. El Paso County v. Bish, 18 Col. 474 (1893), (33 Pac. 
 Rep. 184). 
 
 Connecticut. Ward u. Hartford County, 12 Conn. 404 (1838) ; Chid- 
 sey V. Canton, 17 Conn. 475 (1846). 
 
 Delaware. Carter v. Wilds, 8 Houst. 14 (1887), (31 Atl. Rep. 715). 
 
 Georgia. Haygood v. Justices of the Inferior Court, 20 Ga. 845 
 (1858); Scales v. Chattahoochee County, 41 Ga. 225 (1870j. 
 
 Idaho. Davis v. Ada County, 47 Pac. Rep. 93 (1896). 
 
 Illinois. Hedges v. Madison County, 6 111. 567 (1844) ; White v. 
 Bond County, 58 111. 297 (1871) ; Symonds v. Clay County, 71 111. 
 355 (1874) ; HoUenbeck v. Winnebago County, 95 111. 148 (1880). 
 
 Indiana. Fulton County u. Rickel, 106 Ind. 501 (1886), (7 N. E. 
 Rep. 220) ; Abbett v. Johnson County, 114 Ind. 61 (1887), (16 N. E. 
 Rep. 127) ; Carroll County v. Bailey, 122 lud. 40 (1889), (23 N. E. Rep. 
 672) ; Smith v. Allen County, 131 Ind. 116 (1891), (30 N. E. Rep. 942); 
 Cones V. Benton County, 137 Ind. 404 (1893), (37 N. E. Rep. 272) ; Jas- 
 per County V. AUman, 142 Ind. 573 (1805), (42 N. E. Rep. 206) ; John- 
 son County!;. Hemphill, 14 Ind. App. 219 (1895), (42 N. E. Rep 760) ; 
 Montgomery County v. Coffenberry, 14 Ind. App. 701 (1895), (42 N. E. 
 Rep. 491) ; Johnson County v. Reinier, 18 Ind. App. 119 (1897), (47 
 N. E. Rep. 642). 
 
 I Toiva. Soper v. Henry County, 26 la. 264 (1868) ; Kincaid v. Har- 
 din County, 53 la. 430 (1880), (5 N. W. Rep. 589). 
 
 Kansas. Eikenberry v. Township of Bazaar, 22 Kan. 556 (1879); 
 Marion County v. Riggs, 24 Kan. 255 (1880). 
 
 Kentucky. Downing v. Mason County, 87 Ky. 208 (1888), (8 S. \V. 
 Rep. 264). 
 
 Louisiana. King v. Police Jury, 12 La. An. 858 (1857) ; Fischer 
 Land, etc. Co. v. Bordelon, 52 La. An. 429 (1899), (27 So. Rep. 59). 
 
 Maine. Small 'v. Danville, 51 Me. 359 (1864) ; Brown t-. Vinal- 
 haven, 65 Me. 402 (1876). 
 
 Maryland. Anne Arundel County v. Duvall, 54 Md. 350 (1880). 
 
 Massachusetts. Mower u. Leicester, 9 Mass. 247 (1812) ; Hill v. 
 Boston, 122 Ma,ss. 344 (1877). 
 
 Michigan. Commissioners of Highways v. Martin, 4 Mich. 557 
 
b LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 instrumentality that the state originally made it and in- 
 tended it to be, and may thus assume a new character. 
 
 (1857) ; Larkiu v. Saginaw County, 11 Mich. 88 (1862) ; Webster v. 
 Hillsdale County, 99 Mich. 259 (1894), (58 N. W. Rep. 317). 
 
 Minnesota. Dosdall v. County of Olmsted, 30 Minn. 96 (1882), 
 (14 N. W. Rep. 458). 
 
 Mississippi. Sutton v. Board of Police 41 Miss. 236 (1866) | 
 Brabham v. Hinds County, 54 Miss. 363 (1877). 
 
 Missouri. Miller v. Iron County, 29 Mo. 122 (1859) ; Reardon v. 
 St. Louis County, 36 Mo. 555 (1865) ; Clark v. Adair County,- 79 Mo. 
 
 536 (1883); Reed v. Howell County, 125 Mo. 58 (1894), (28 S. W. 
 Rep. 177). 
 
 Montana. Territory v. Cascade County, 8 Mont. 396 (1889), (20 
 Pac. Rep. 809). 
 
 Nebraska. Wehn v. Gage County, 5 Neb. 494 (1877) ; Woods v. 
 Colfax County, 10 Neb. 552 (1880), (7 N. W. Rep. 269). 
 
 New Hampshire. Farnum v. Concord, 2 N. H. 392 (1821). 
 
 New Jersey. Freeholders of Sussex v. Strader, 18 N. J. L. 108 
 (1840) ; Cooley v. Freeholders of Essex, 27 N. J. L. 415 (1859) ; Liv- 
 ermore v. Freeholders of Camden, 29 N. J. L. 245 (1861). 
 
 New York. Bartlett v. Crozier, 17 Johns. 439 (1820) ; Morey v. 
 Newfane, 8 Barb. 645 (1850) ; Albrecht v. Queens County, 84 Hun, 
 399 (1895), (32 N. Y. Supp. 473); Ahern v. Kings County, 89 Hun, 
 148 (1895), (34 N. Y. Supp. 1023). 
 
 North Carolina. Kinsey v. Magistrates of Jones, 8 Jones L. 186' 
 (1860) ; White v. Chowan County, 90 N. C. 437 (1884). 
 
 North Dakota. Vail v. Amenia, 4 N. Dak. 239 (1894), (59 N. W. 
 Rep. 1092). 
 
 Ohio. Hamilton County v. Mighels, 7 Oh. St. 109 (1857), overruling 
 Brown County v. Butt, 2 Oh. Rep, 348 (1826); Finch v. Board of 
 Education, 30 Oh. St. 37 (1876). 
 
 Oregon. Templeton v. Linn County, 22 Oreg. 313 (1892), (29 Pac. 
 Rep. 795). 
 
 Pennsylvania. Lehigh County v. HofEort, 116 Pa. St. 119 (1887), 
 (9 Atl, Rep. 177) ; Ford v. Kendall School District, 121 Pa. St. 548 
 (1888), (15 Atl. Rep. 812). 
 
 South Carolina. Young v. Commissioners of Roads, 2 N. & McC. 
 
 537 (1820). 
 
 South Dakota. Bailey v. Lawrence County, 5 S. Dak. 393 (1894), 
 (59 N. W. Rep. 219). 
 
 Tennessee. Wood v. Tipton County, 7 Baxt. 112 (1874) ; White's 
 Creek Turnpike Co. v. Davidson County, 14 Lea, 73 (1884). 
 
 Texas. Navasota v. Pearce, 46 Tex. 525 (1877) ; Walton v. Travis 
 
THE GENERAL PRINCIPLES OF THE LIABILITY. 7 
 
 Such a change of character may be brought about, it seems, 
 by the assumption and performance of some special duty 
 undertaken for its own private advantage, which has been 
 either imposed upon it by the legislature with its consent 
 express or implied, or conferred upon it by the legislature 
 at its request,^ or voluntarily assumed without any action 
 on the part of the legislature. ^ When a quasi corporation 
 assumes in any one of these ways the performance of 
 duties for its own private advantage, it thereby ceases to 
 be a pure quasi corporation and becomes to that extent 
 a municipal corporation proper. With such a change in 
 character comes also a change in the rule of liability, and 
 such corporation is held to be responsible to the same 
 extent as a municipal corporation proper under like 
 circumstances. 2 
 
 County, 5 Tex. Civ. App. 525 (1893), (24 S. W. Rep. 352) ; Floria 
 V. Galveston County, 55 S. W. Rep. 540 (Tex. Civ. App. 1900). 
 
 Vermont. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123 (1849) ; 
 Hyde v. Jamaica, 27 Vt. 443, 457 (1855). 
 
 Virginia. Fry v. County of Albemarle, 86 Va. 195 (1890), (9 S. E. 
 Kep. 1004); Field v. Same, 20 S. E. Rep. 954 (1895). 
 
 Washington. Clark v. Lincoln County, 1 Wash. 518 (1889), (20 
 Pac. Rep. 576). 
 
 West Virginia. Watkins v. Preston County Court, 30 W. Va. 657 
 (1888), (5 S. E. Rep. 654). 
 
 Wisconsin. Randies v. Waukesha County, 96 Wis. 629 (1897), 
 (71 N. W. Rep. 1034). 
 
 England. Russell v. Men of Devon, 2 Term Rep. 667 (1788). 
 
 1 Mr. Justice Metcalf, speaking of the rule giving immunity from 
 private action to quasi corporations, says : " This rule of law, however, 
 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 on it, with its consent, 
 express or implied, or a special authority is conferred on it, at its re- 
 quest." Bigelow V. Randolph, 14 Gray (Mass.), 541, 543 (1860). 
 
 2 Hannon v. St. Louis County, 62 Mo. 313 (1876). 
 
 3 Thompson v. Polk County, 38 Minn. 130 (1888), (36 N. W. Rep. 
 
8 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 4. Municipal Corporations Proper. — Public corpora- 
 tions of this class, created by special charter or volun- 
 tarily organized under general laws,^ have a distinctly dual 
 character. They, like quasi corporations, are govern- 
 mental instrumentalities, endowed with all those powers 
 and duties necessary for the establishment and mainten- 
 ance of good government within their territory. While 
 in the exercise of these powers and the discharge of these 
 duties, a municipal corporation proper is simply another 
 of the political divisions of the state, employed by it as a 
 means through which it may perform those duties that it 
 owes to all citizens alike. But this is not the sole object, 
 nor indeed the main object, of their creation. They are 
 incorporated at the wish and special instance of the in- 
 habitants for the advancement of their own private inter- 
 ests. More or less, generally very much more, extensive 
 
 267) ; Schussler v. Hennepin County, 67 Minn. 412 (1897), (70 N. W. 
 Rep. 6); Rowland v. Kalamazoo County, 49 Mich. 553 (1883), (14 
 N. W. Rep. 494) ; Moultou v. Scarborough, 71 Me. 267 (1880) ; Hand 
 V. Brookline, 126 Mass. 324 (1879); Coburn v. San Mateo County, 75 
 Fed. Rep. 520, 537 (1896). 
 
 In Haag v. Vanderburgh County, 60 Ind. 511 (1878), a county was 
 held liable for creating a nuisance. 
 
 By tlie weight of authority a private party can maintain an action 
 against a county to recover damages for the infringement of a patent. 
 This rule appears to rest upon the ground that a patentee's rights and 
 remedies are created and defined by Congress, which has, under the 
 constitution, the exclusive control of the subject, and Congress has not 
 excepted counties from the obligation to respect the patentee's rights. 
 May V. Logan County, 30 Fed. Rep. 250, 259 (1887) ; May v. Mercer 
 County, 30 Fed. Rep. 246 (1887) ; May v. Buchanan County, 29 Fed. 
 Rep. 469 (1886) ; May v. County of Fond du Lac, 27 Fed. Rep. 691 
 (1886). Contra, Jacobs v. Hamilton County, 1 Bond, 500 (1861); 
 May V. Juneau County, 30 Fed. Rep. 241 (1887). 
 
 1 " The whole municipal authority emanates from the legislature. 
 Its legislative charter indicates its extent and regulates the distribu- 
 tion of its powers as well as the manner of selecting and compensating 
 its agents." Mr. Justice Hunt in Barnes v. District of Columbia, 91 
 U. S. 540, 546 (1875). 
 
THE GENERAL PRINCIPLES OF THE LIABILITY. 9 
 
 powers and privileges, therefore, which are to be exercised 
 for the improvement of the territory within their limits 
 and for its adaptation to the purposes of business and 
 residence, are conferred upon them. 
 
 Municipal corporations proper thus represent, on the 
 one hand, the state in the discharge of its public functions, 
 and, on the other hand, their inhabitants in the protection 
 and advancement of their pecuniary and proprietary in- 
 terests. In brief, they are the resultant of a public cor- 
 poration and a private corporation blended together. ^ 
 
 While acting in their governmental capacity, municipal 
 corporations proper are given the benefit of that same rule 
 which is applied to the sovereign power itself, and are 
 afforded complete immunity from civil responsibility for 
 acts done or omitted, unless such responsibility is ex- 
 pressly created by statute. ^ When, however, they are not 
 acting in the exercise of their purely governmental func- 
 tions, but are performing duties that pertain to the exer- 
 cise of those private franchises, powers, and privileges 
 which belong to them for their own corporate benefit, or 
 are dealing with property held by them for their own 
 corporate gain or emolument, then a different rule of 
 liability is applied and they are generally held responsible 
 for injuries arising from their negligent acts or their omis- 
 sions to the same extent as a private corporation under 
 like circumstances.^ 
 
 1 See Galveston v. Posnainsky, 62 Tex. 118 (1884)-; Western Col- 
 lege of Medicine v. Cleveland, 12 Oh. St. 375 (1861) ; Maxmilian v. 
 Mayor, etc. of New York, 62 N. Y. 160 (1875). 
 
 2 See Hewison i-. New Haven, 37 Conn. 475 (1871) ; Hill v. Boston, 
 122 Mass. 344 (1877); Bigelow v. Randolph, 14 Gray (Mass.), 541 
 (1860) ; French u. Boston, 129 Mass. 592 (1880) ; Eastman v. Mere- 
 dith, 36 N. H. 284 (1858). 
 
 8 Jones V. New Haven, 34 Conn. 1 (1867) ; Oliver v. Worcester, 102 
 Mass. 489 (1869); Thayer v. Boston, 19 Pick. (Mass.) 511 (1837) ; Pitts- 
 burg V. Grier, 22 Pa. St. 54 (1853). 
 
 In Jones v. New Haven, Mr. Justice Carpenter says, at page 14: 
 
10 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 5. The Nature of the Duty. — As Was pointed Out in 
 the preceding section, municipal corporations proper 
 have two distinct characters, the one public, the other 
 private. It follows as a natural consequence of this 
 peculiarity that the duties performed by them are, broadly 
 classified, of two kinds. The first is incident to their 
 public character, and comprises all those governmental 
 duties that are imposed upon them as the representatives 
 of the state, duties relating to the public peace, health, 
 safety, and education, and as well duties growing out of 
 the exercise of their legislative and judicial or discretion- 
 ary powers. The second kind is incident to their private 
 character, and embraces all municipal duties that grow 
 out of the ownership of property for private gain, such as 
 wharves, water and gas works, markets, and like institu- 
 tions; and those duties that are incident to the actual 
 work of constructing and repairing quasi public works, 
 such as sewers, drains, and the like, which are commonly 
 called executory duties. 
 
 The broad, general distinctions between these two 
 kinds of duties are reasonably plain and marked, and 
 have been often pointed out by the courts. Nevertheless 
 there are many duties that occupy a middle ground between 
 the two kinds which it is not easy to classify with cer- 
 tainty. The difficulty in determining clearly and accu- 
 rately the line of demarcation between the two kinds in 
 
 " When a corporation is charged with the performance of some public 
 duty, as a condition express or implied upon which it holds its cor- 
 porate powers ; when a grant is made to a corporation of some special 
 power or privilege at its request, out of which public duties grow ; and 
 when some special duty is imposed upon a corporation not belonging 
 to it under the general law, with its consent ; in these and like cases, 
 if the corporation is guilty of negligence in the discharge of such duty, 
 thereby causing injury to another, it is liable to an action in favor of 
 the party injured." 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 11 
 
 such cases has been the principal difficulty that courts 
 have experienced in considering this branch of the law, 
 and has given rise to much of the confusion to be found 
 in the decisions of the various states. As soon, however, 
 as the class to which the duty, in any particular case, 
 belongs has been accurately determined, it becomes a 
 comparatively simple matter to fix the rights of the par- 
 ties, since the rules of law that establish the immunities 
 and the liabilities of a municipal corporation while en- 
 gaged in the performance of their duties are fairly clear 
 and well settled.^ 
 
 § 6. Legislative and Judicial Duties. — • Of the numerous 
 duties devolving upon municipal corporations, many, it 
 is obvious, are not absolute in their nature, but are rather 
 intrusted to the judgment and discretion of the municipal 
 authorities. Duties of this character are commonly re- 
 ferred to in the cases as legislative and judicial, or discre- 
 tionary duties. Under this head are included all those 
 duties that involve deliberation, judgment, and discretion 
 in their exercise, whether the result attained by that ex- 
 
 1 Bailey v. Mayor, etc. of New York, 3 Hill (IST. Y.), 531 (1842) ; 
 Lloyd V. Same, 5 N. Y. 369 (1851) ; Richmond v. Long, 17 
 Gratt. (Va.) 375 (1867), and cases cited in notes under §§ 6 and 7, 
 
 Mr. Justice Nelson, in Bailey v. Mayor, etc. of New York, 3 Hill 
 (N. Y-), 531, at page 539, speaking of the distinction between powers 
 granted exclusively for public purposes, and those granted for private 
 advantage, says that it is " quite clear and well settled, and the process 
 of separation is practicable. To this end, regard should be had, not 
 so much to the nature and character of the various powers conferred, 
 as to the object and purpose of the legislature in conferring them. If 
 granted for public purposes exclusively, they belong to the corporate 
 body in its public, political, or municipal character. But if the grant 
 was for purposes of private advantage and emolument, though the 
 public may derive a comlnon advantage therefrom, the corporation, 
 quoad hoc, is to be regarded as a private company." 
 
12 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 ercise is the accomplishment of purposes public and gov- 
 ernmental or private and municipal. As to such duties, 
 the corporation is not bound in the first instance to act 
 at all,' nor is it, if it proceeds to act, liable for negligence 
 in their performance. ^ 
 
 ^ Nor has a court of chancery any power to compel it to exercise a 
 power left to its legislative or judicial discretion. Thus it has been 
 held that a bill to compel the construction of a sewer for the better 
 drainage of the plaintiff's premises could not be entertained, though 
 the power to construct the sewer had been conferred upon the corpora- 
 tion. Horton v. Nashville, 4 Lea (Tenn.), 39 (1879). 
 
 2 Alabama. Davis v. Montgomery, 51 Ala. 139 (1874) ; Campbell 
 V. Montgomery, 53 Ala. 527, 580 (1875). 
 
 Colorado. Daniels u. Denver, 2 Col. 669 (1875). 
 
 Georgia. Duke v. Rome, 20 Ga. 635 (1856) ; Rivers v. Augusta, 65 
 Ga. 876 (1880). 
 
 Illinois. Goodrich v. Chicago, 20 111. 445 (1858) ; Freeport v. Isbell, 
 88 111. 440 (1876). 
 
 Indiana. Faulkner v. Aurora, 85 Ind. 130 (1882) ; Lafayette v. 
 Timberlake, 88 Ind. 330 (1882); Kistner v. Indianapolis, 100 Ind. 
 210 (1884) ; Anderson i;. East, 117 Ind. 126 (1888), (19 N. E. Rep. 
 726). 
 
 Iowa. Ogg V. Lansing, 35 la. 495 (1872) ; Ball v. Woodbine, 61 
 la. 83 (1883), (15 N. W. Rep. 846) ; Vanhorn v. Des Moines, 63 la. 
 447 (1884), (19 N. W. Rep. 29-3). 
 
 Kentucky. James v. Harrodsburg, 85 Ky. 191 (1887), (3 S. W. 
 Rep. 135). 
 
 Louisiana. Bennett v. New Orleans, 14 La. An. 120 (1859). 
 
 Michigan. Dewey v. Detroit, 15 Mich. 307 (1867) ; Detroit v. 
 Beokman, 34 Mich. 125 (1876). 
 
 Missouri. Schattner v. Kansas City, 53 Mo. 162 (1878); Armstrong 
 V. Brunswick, 79 Mo. 319 (1883); Kiley v. Kansas City, 87 Mo. 103 
 (1885). 
 
 Nevada. McDonough v. Virginia City, 6 Nev. 90 (1870). 
 
 New Jersey. Eeock v. Newark, 33 N. J. L. 129, 132 (1868). 
 
 New York. Wilson v. Mayor, etc. of New York, 1 Den. 595 
 (1845) ; Levy v. Same, 1 Sandf. 465 (1848) ; Cole v. Medina, 27 
 Barb. 218 (1858) ; Mills v. Brooklyn, 32 N. Y. 489 (1865). 
 
 North Carolina. Hill v. Charlotte, 72 N. C. 55 (1875). 
 
 Ohio. Wheeler v. Cincinnati, 19 Oh. St. 19 (1869). 
 
 Pennsylvania. Carr v. Northern Liberties, 35 Pa. St. 324 (1860) ; 
 Easton v. Neff, 102 Pa. St. 474 (1883) ; Lehigh County v. Hoffort, 116 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 13 
 
 Thus, at common law municipal corporations are not 
 liable to a private individual for a failure to exercise their 
 power to abate private nuisances,' nor for a failure to 
 supply sufficient water and apparatus for the protection of 
 property from destruction by fire.^ Nor furthermore, if in 
 
 Pa. St. 119 (1887), (9 Atl. Rep. 177) ; McDade?;. Chester, 117 Pa. St. 
 414 (1887), (12 Atl. Rep. 421). 
 
 South Carolina. Black v. Columbia, 19 S. C. 412 (1883). 
 
 Tennessee. Foster v. Lookout Water Co. et al., 3 Lea, 42 (1879). 
 
 West Virginia. Mendel v. Wheeling, 28 W. Va. 233 (1886). 
 
 Wisconsin. Kelley v. Milwaukee, 18 Wis. 83 (1864). 
 
 United States. Fowle v. Alexandria, 8 Pet. 398, 408 (1880). 
 
 English. Wilson v. Halifax, L. R. 3 Exoh. 114 (1868) ; Forbes v. 
 Lee Conservancy Board, 4 Exoh. Div. 116 (1879). 
 
 1 Alabama. Smoot v. Wetumpka, 24 Ala. 112 (1854); Davis v. 
 Montgomery, 51 Ala. 139 (1874). 
 
 Connecticut. Hewison v. New Haven, 37 Conn. 475 (1871). 
 
 Georgia. Forsyth v. Atlanta, 45 Ga. 152 (1872) ; and see Parker 
 V. Macon, 39 Ga. 725 (1869). 
 
 Illinois. Goodrich v. Chicago, 20 111. 445 (1858). 
 
 Indiana. Walker v. Hallock, 32 Ind. 289 (1869); Faulkner v. 
 Aurora, 85 Ind. 130 (1882). 
 
 Iowa. Ogg V. Lansing, 35 la. 495 (1872) ; Ball v. Woodbine, 61 la. 
 83 (1883), (15 N. W. Rep. 846). 
 
 Kentucky. James v. Harrodsburg, 85 Ky. 191 (1887), (3 S. W. 
 Rep. 185). 
 
 Louisiana. Howe v. New Orleans, 12 La. An. 481 (1857). 
 
 Missouri. Armstrong v. Brunswick, 79 Mo. 319 (1883) ; Kiley v. 
 Kansas City, 87 Mo. 103 (1885). 
 
 New York. Connors v. Mayor, etc. of New York, 11 Plun, 439 
 (1877) ; Cain v. Syracuse, 95 N. Y. 83 (1884). 
 
 North Carolina. Hill v. Charlotte, 72 N. C. 55 (1875). 
 
 Pennsylvania. Fair v. Philadelphia, 88 Pa. St. 309 (1879) ; Nor- 
 ristown v. Fitzpatriok, 94 Pa. St. 121 (1880) ; McDade v. Chester, 117 
 Pa. St. 414 (1887), (12 Atl. Rep. 421). 
 
 Texa.^. Fort Worth v. Crawford, 64 Tex. 202 (1885). 
 
 Wisconsin. Kelley v. Milwaukee, 18 Wis. 88 (1864). 
 
 United States. Fowle v. Alexandria, 3 Pet. 398 (1830). 
 
 ^ Wright V. Augusta, 78 Ga. 241 (1886) ; Brinkmeyer v. Evansville, 
 29 Ind. 187 (1867) ; Vanhorn v. Des Moines, 63 la. 447 (1884), (19 
 N. W. Rep. 293) ; Patch v. Covington, 17 B. Monroe (Ky.), 722 (1856) ; 
 Tainter v. Worcester, 123 Mass. 811 (1877); Wheeler v. Cincinnati, 
 
14 LIABILITY OF MUNICIPAL CORPOEATIONS FOR TORT. 
 
 the exercise of their discretion they furnish fire apparatus, 
 can they be held responsible by reason of negligence in 
 using it or in keeping it in repair.^ 
 
 Likewise it is the general rule that municipal corpora- 
 tions cannot at common law be made to respond in dam- 
 ages either for a total failure to construct roads, sewers, 
 and other municipal improvements, or for any injuries 
 due solely to the plan of such improvements which the 
 municipal authorities, in the exercise of the discretion in- 
 trusted to them, adopted and carried out/ In Indiana this 
 
 19 Oh. St. 19 (1869) ; Grant v. Erie, 69 Pa. St. 420(1871); Black v. 
 Columbia, 19 S. C. 412 (1883). 
 
 1 Howard v. San Francisco, 51 Cal. 52 (187.5) ; Torbush v. Norwich, 
 38 Conn. 225 (1871); Greenwood v. Louisville, 13 Bush (Ky.), 226 
 (1877); Yule v. New Orieaas,25 La. An. 394(1873); Heller v. Sedalia, 
 53 Mo. 159 (1878); Foster v. Lookout Water Co., 3 Lea (Teun.), 42 
 (1879); Mendel v. Wheeling, 28 W. Va. 233 (1886); Hayes v. Osh- 
 kosh, 33 Wis. 314(1873). 
 
 A municipal corporation cannot be made liable by reason of the 
 repeal of an ordinance previously enforced. Thus, where a city made 
 an ordinance providing that cattle should not be allowed in the street, 
 and subsequently suspended it and the plaintiff was injured by cattle 
 running at large, it was held that the corporation was not liable. Rivers 
 V. Augusta, 65 Ga. 376 (1880); Hill v. Charlotte, ,72 N. C. 55 (1875). 
 
 2 Colorado. Denver v. Capelli, 4 Col. 25 (1877). 
 
 Connecticut. Diamond Match Co. v. New Haven, 55 Conn. 510 
 (1888), (13 Atl. Rep. 409). 
 
 Georgia. Duke v. Rome, 20 Ga. 635 (1856). 
 
 Indiana. Roll u. Indianapolis, 52 Ind. 547 (1876) ; Rozell v. Ander- 
 son, 91 Ind. 591 (1883). 
 
 Iowa. Van Pelt v. Davenport, 42 la. 308 (1875); Wicks v. De 
 Witt, 54 la. 130 (1880), (6 N. W. Rep. 176) ; German Theo. School v. 
 Dubuque, 64 la. 736 (1883), (17 N. W. Rep. 153). 
 
 Kansas. Atchison v. Challiss, 9 Kan. 603 (1872). 
 
 Massachusetts. Child v. Boston, 4 Allen, 41, 51 (1862) ; Merrifield 
 u. Worcester, 110 Mass. 216 (1872). 
 
 Michigan. Toolan v. Lansing, 38 Mich. 315 (1878). 
 
 Missouri. Imler v. Springfield, 55 Mo. 119 (1874) ; Foster v. St. 
 Louis, 71 Mo. 157 (1879). 
 
 New York. Wilson v. Mayor, etc. of New York, 1 Den. 595 
 
THE GENERAL PRINCIPLES OF THE LIABILITY. 15 
 
 last rule has been materially limited by the doctrine, now 
 ■well established in that state, that municipal corporations 
 are bound to exercise reasonable care in devising the plan 
 of their municipal improvements, as well as in executing 
 it, and are therefore responsible for any damages due 
 to negligence in preparing it.^ As was said by Mr. 
 Justice Elliott in a recent caSe : ^ "It is possible for a com- 
 mon council to act negligently in devising a plan, as well 
 as in any other matter. If that body undertakes to prose- 
 cute a public work which requires a plan, and that plan 
 can only be devised and prepared by skilful or experi- 
 enced men, it would be negligence for it to undertake the 
 work without exercising reasonable care to secure the 
 assistance of such men. A prudent man certainly would 
 not undertake a work of that character without the aid 
 of competent men, and a city is held to substantially the 
 same degree of care as individuals. " While this doctrine 
 sounds well, it is open to the objection that it in all cases 
 
 (1845) ; Kavanagh v. Brooklyn, 38 Barb. 232 (1862) ; Mills v. Brook- 
 lyn, 32 N. Y. 489 (1865) ; Lynch v. Mayor, etc. of New York, 76 
 N. y. 60 (1879); Monk v. New Utrecht, 104 N. Y. 552 (1887), (11 
 N. E. Rep. 268). 
 
 North Carolina. Wright v. Wilmington, 92 N. C. 156 (1885). 
 
 Pennsylvania. Carr v. Northern Liberties, 35 Pa. St. 324 (1860) ; 
 Fair v. Philadelphia, 88 Pa. St. 309 (1879) ; Collins v. Philadelphia, 
 93 Pa. St. 272 (1880). 
 
 Wisconsin. Allen v. Chippewa Falls, 52 Wis. 430 (1881), (9 N. W. 
 Kep. 284) ; Smith v. Gould, 61 Wis. 31 (1884), (20 N. W. Rep. 369). 
 
 District of Columbia. Bannagan v. District of Columbia, 2 Mac- 
 key, 285 (1883). 
 
 United Stales. Johnston v. District of Columbia, 118 U. S. 19 
 (1886), (6 S. Ct. Rep. 923). 
 
 1 Indianapolis v. Buffer, 30 Ind. 235 (1868) ; Cummins v. Seymour, 
 79 Ind. 491 (1881) ; Evansville v. Decker, 84 Ind. 325 (1882) ; North 
 Vernon v. Voegler, 103 Ind. 314 (1885), (2 N. E. Rep. 821) ; Rice v. 
 Evansville, 108 Ind. 7 (1886), (9 N. E. Rep. 139) ; Terre Haute v. 
 Hudnut, 112 Ind. 542 (1887), (13 N. E. Rep. 686). 
 
 2 Terre Haute v. Hudnut, 112 Ind. 542, 547 (1887), (13 N. E. Rep. 
 686). 
 
16 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 requires to be submitted to the jury the ultimate deter- 
 mination of matters that the state has intrusted to the 
 judgment and discretion of the municipal authorities. In 
 other words, it takes the final determination of certain 
 matters out of the hands of those to whom the state com- 
 mitted it, and puts it into the hands of a body which the 
 state never intended should have it. The doctrine finds, 
 however, some support in other jurisdictions.^ 
 
 The immunity of municipal corporations from liability 
 to any private citizen while they are in the exercise of 
 their discretionary powers is based upon that public 
 policy which protects the legislator and the judge in the 
 performance of their respective duties. For, although the 
 legislative and judicial duties that devolve upon municipal 
 corporations are not strictly those of the legislator or the 
 judge, yet they so far partake of the nature of such duties 
 that the same reasons which make it desirable to protect 
 the legislator and the judge in the free exercise of their 
 respective duties, apply with equal force to the case of 
 municipal authorities. 
 
 1 Helena v. Thompson, 29 Ark. 569 (1874) ; Lehn v. San Francisco, 
 66 Cal 76 (1884), (4 Pac. Rep. 965); Gould v. Topeka, 32 Kan. 483 
 (1884), (4 Pac. Rep. 822); Hitchins v. Frostburg, 68 Md. 100(1887), 
 (11 Atl. Rep. 826). 
 
 If the execution of the -plan adopted results in a direct injury to 
 the plaintiff's property, such as the creation of a nuisance, the corpora- 
 tion may be liable. Metropolitan Asylum District v. Hill, L. R. 6 App. 
 Cas. 193 (1881); Siefert v. Brooklyn, 101 N. Y. 136 (1886), (4 N. E. 
 Rep. 321). In the latter case Chief Justice Ruger says, at page 143 : 
 " The exercise of a judicial or discretionary power, by a municipal 
 coi'povation , which results in a direct and physical injury to the 
 property of an individual, and which from its nature is liable to be 
 repeated and continuous, but is remediable by a change of plan, or 
 the adoption of prudential measures, renders the corporation liable for 
 such damages as occur in consequence of its continuance of the original 
 course after notice, and an omission to adopt such remedial measures 
 as experience has shown to be necessary and proper." 
 
THE GENERAL PRINCIPLES OF THE LIABILITY. 17 
 
 § 7. Ministerial Duties. — ■ Although the duty of determin- 
 ing whether or not the municipal corporation shall under- 
 take any particular improvement for its own special 
 interest and advantage, and, if it decides to so do, the 
 duty of devising the plan in accordance with which the 
 work shall be done, rest entirely in the discretion of 
 the municipal authorities, the actual prosecution of the 
 work stands on a different basis. When a corporation has 
 adopted its plan of municipal improvement, judicial or 
 discretionary duty ceases. The duty involved in carrying 
 it out — the actual doing of the work — is purely minis- 
 terial and absolute. With this change in the nature of 
 the duty comes also a change in the rule of liability. The 
 corporation drops the character of the quasi legislator or 
 judge with its immunities, and assumes that of the legal 
 individual with its liabilities. As Mr. Justice Carpenter 
 has tersely expressed it:^ "Where judicial duty ends 
 and ministerial duty begins, there immunity ceases and 
 liability attaches." 
 
 It is the universal rule, therefore, that municipal cor- 
 porations, although there be no statute expressly creating 
 the liability, are bound to see that all purely ministerial 
 and absolute duties undertaken by them are performed 
 with reasonable care and prudence, and are responsible 
 in damages for any failure so to perform them, to the same 
 extent as a business corporation or a private individual 
 would be in like circumstances.^ This rule is, it appears, 
 
 1 Jones V. New Haven, 34 Conn. 1, 14 (1867). 
 
 2 Alabama. Smoot v. Wetumpka, 24 Ala. 112 (1854); Montgom- 
 ery V. Gilmer, 33 Ala. 116, 130 (1858) ; Albrittin v. Huntsville, 60 
 Ala. 486 (1877). 
 
 Arkansas. Little Rock v. Willis, 27 Ark. 572 (1872). 
 California. Spangler v. San Francisco, 84 Cal. 12 (1890), (23 Pac. 
 Rep. 1091). 
 
 Colorado. Denver v. Dunsmore, 7 Col. 328 (1884), (3 Pao. Rep. 
 
 2 
 
18 LIABILITY OP MUNICIPAL COEPOEATIONS FOR TORT. 
 
 simply an application to municipal corporations of that 
 general doctrine that all persons are bound to see that the 
 
 705); Boulder v. Niles, 9 Col. 415 (1886), (12 Pao. Rep. 632) ; Denver 
 V. Rhodes, 9 Col. 554 (1886), (13 Pac. Rep. 729). 
 
 Connecticut. Jones v. New Haven, 34 Conn. 1 (1867). 
 
 Florida. Tallahassee v. Fortune, 3 Fla. 19 (1850). 
 
 Georgia. Parker v. Macon, 89 Ga. 725 (1869); Savannah v. Wald- 
 ner, 49 Ga. 316 (1873); Milledgeville v. Cooley, 55 Ga. 17 (1875); 
 Rome V. Dodd, 58 Ga. 238 (1877). 
 
 Illinois. Browning v. Springfield, 17 111. 148 (1855) ; Laeon v. 
 Page, 48 111. 499 (1868); Bloomington v. Bay, 42 111. 503(1867); 
 Springfield v. Le Claire, 49 111. 476 (1869) ; Champaign v. Patterson, 
 50 111. 61 (1869); Sterling v. Thomas, 60 111. 264 (1871). 
 
 Indiana. Logansport v. Wright, 25 Ind. 512 (1865) ; Grove v. Fort 
 Wayne, 45 Ind. 429 (1874) ; Centerville v. Woods, 57 Ind. 192 (1877). 
 
 Iowa. Wallace v. Muscatine, 4 Greene, 873 (1854); Cotes v. 
 Davenport, 9 la. 227 (1859); Ellis v. Iowa City, 29 la. 229 (1870). 
 
 Kansas. Smith v. Leavenworth, 15 Kan. 81 (1875); Jansen v. 
 Atchison, 16 Kan. 358 (1876). 
 
 Louisiana. O'Neill v. New Orleans, 80 La. An. 220 (1878). 
 
 Maryland. Baltimore v. Pendleton, 15 Md. 12 (1860); Hitohins v. 
 Frostburg, 68 Md. 100 (1887), (11 Atl. Rep. 826). 
 
 Massachusetts. Child v. Boston, 4 Allen, 41 (1862) ; Merrifield v. 
 Worcester, 110 Mass. 216 (1872). 
 
 Michigan. Detroit v. Corey, 9 Mich. 165 (1861). 
 
 Minnesota. Furnell v. St. Paul, 20 Minn. 117 (1878); Kobs v. 
 Minneapolis, 22 Minn. 159 (1875); Simmer v. St. Paul, 23 Minn. 408 
 (1877) ; Bohen v. Waseca, 32 Minn. 176 (1884), (19 N. W. Rep. 730). 
 
 Mississippi. Bell v. West Point, 51 Miss. 262 (1875) ; Vicksburg 
 V. Hennessy, 54 Miss. 391 (1877). 
 
 Missouri. Blake v. St. Louis, 40 Mo. 569 (1867) ; Bassett v. St. 
 Joseph, 53 Mo. 290 (1 873) ; Craig v. Sedalia, 63 Mo. 417 (1876) ; Welsh 
 V. St. Louis, 73 Mo. 71 (1880) ; Russell v. Columbia, 74 Mo. 480, 490 
 (1881) ; Halpin v. Kansas City, 76 Mo. 335 (1882). 
 
 Nebraska. Omaha v. Olmstead, 5 Neb. 446 (1877). 
 
 Nevada. McDonough v. Virginia City, 6 Nev. 90 (1870). 
 
 New Hampshire. Oilman v. Lacouia, 55 N. H. 130 (1875) ; Rowe 
 V. Portsmouth, 56 N. H. 291 (1876). 
 
 New York. Bailey v. Mayor, etc. of New York, 8 Hill, 531 (1842) ; 
 Mayor, etc. of New York v. Furze, 8 Hill, 612 (1842) ; Rochester White 
 Lead Co. v. Rochester, 3 N. Y. 463 (1850) ; Lloyd v. Mayor, etc. of 
 New York, 5 N. Y. 869 (1851) ; Conrad v. Ithaca, 16 N. Y. 158 (1857) ; 
 Weet V. Brockport, 16 N. Y. 161 (1857) ; Storrs v. Utica, 17 N. Y 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 19 
 
 property in their charge and under their control is kept 
 
 in a reasonably safe condition. 
 
 § 8. Municipal Corporations are not Insurers. — Aside 
 
 from certain wilful acts, such as trespass, the disturbance 
 
 of natural easements, the creation of nuisances, the non- 
 
 compliancie with statutory regulations, and the like, for 
 
 104 (1858) ; Wendell v. Troy, 39 Barb. 329 (1862) ; Barton v. Syra- 
 cuse, 36 N. Y. 54 (1867); Clark v. Lockport, 49 Barb. 580 (1867); 
 Davenport v. Ruckman, 37 N. Y. 568 (1868) ; Kequa v. Rochester, 45 
 N. Y. 129 (1871) ; McCarthy v. Syracuse, 46 N. Y. 194 (1871); Ring 
 V. Cohoes, 77 N. Y. 83 (1879); Noonan u. Albany, 79 N. Y. 470 
 (1880) ; Saulsbury v. Ithaca, 94 N. Y. 27 (1883) ; Ehrgott v. Mayor, 
 etc. of New York, 96 N. Y. 264 (1884) ; Nelson v. Canistoe, 100 N. Y. 
 89 (1885), (2 N. E. Rep. 473); Hubbell v. Yonkers, 35 Hun, 349 
 (1885). 
 
 North Carolina. Meares v. Wilmington, 9 Ired. L. 73 (1848). 
 
 Ohio. Dayton v. Pease, 4 Oh. St. 80 (1854). 
 
 Oregon. Farquar v. Roseburg, 18 Oreg. 271 (1890), (22 Pac. Rep. 
 1103). 
 
 Pennsylvania. Pittsburg v. Grier, 22 Pa. St. 54 (1853) ; Erie City 
 V. Schwingle, 22 Pa. St. 384 (1853) ; Fritsoh v. Allegheny, 91 Pa. St. 
 226 (1879). 
 
 Tennessee. Memphis v. Lasser, 9 Humph. 757 (1849) ; Niblett v. 
 Nashville, 12 Heisk. 684 (1874). 
 
 Texas. Galveston v. Posnainsky, 62 Tex. 118 (1884) ; Galveston v. 
 Barbour, 62 Tex. 172 (1884). 
 
 Vermont. Winn v. Rutland, 52 Vt. 481 (1880). 
 
 Virginia. Noble v. Richmond, 31 Gratt. 271 (1879) ; Gordon v. 
 Richmond, 83 Va. 436 (1887), (2 S. E. Rep. 727). 
 
 West Virginia. Wilson v. Wheeling, 19 W. Va. 323 (1882). 
 
 Wisconsin. Gilluly v. Madison, 63 Wis. 518 (1885), (24 N. W. 
 Rep. 137). 
 
 United Stales. Weightman v. Washington, 1 Black, 39 (1861); 
 Chicago City v. Bobbins, 2 Black, 418 (1862); Nebraska City v. 
 Campbell, 2 Black, 590 (1862); Mayor, etc. of New York v. Sheffield, 
 4 Wall. 189 (1866); Barnes v. District of Columbia, 91 U. S. 540 
 (1875); Evanston v. Gunn, 99 U. S. 660 (1878) ; Delger v. St. Paul, 
 14 Fed. Rep. 567 (1882). 
 
 England. Mayor of Lynn v. Turner, 1 Cowper, 86 (1774) ; Lyme 
 Regis V. Henley, 3 B. & Ad. 77 (1882); Lancaster Canal Co. v. Par- 
 naby, 11 A. & E. 223 (1839); Mersey Docks Trustees v. Gibbs, 11 
 H. L. Cas. 686 (1866). 
 
20 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 which they are generally held responsible to the same 
 extent as any legal individual, the entire liability of 
 municipal corporations for tort is based upon negligence.' 
 They are in no wise insurers. At common law no obli- 
 gation rests upon them to perform their private and cor- 
 porate duties at all times and at all hazards in an 
 absolutely safe manner.^ Reasonable care, skill, and 
 diligence in the performance of those duties is the sole 
 measure of their common law obligation toward private 
 individuals. Such a degree of care and skill they are 
 bound to exercise ; if they have done that, they cannot be 
 held responsible for the consequences. Thus, in the 
 absence of negligence on their part, municipal corpora- 
 tions are not liable for injuries due to defects in sewers;^ 
 or for damages caused by defects in highways ^ or by 
 defects in water works. ^ 
 
 ' A municipal corporation cannot assume by contract a liability 
 for tort iu cases where the law does not impose one. Vanhorn v. Des 
 Moines, 63 la. 447, 450 (1884), (19 N. W. Rep. 293). 
 
 2 Smith V. Mayor, etc. of New York, 66 N. Y. 295 (1876) ; Village 
 V. Kallagher, 52 Oh. St. 183 (1894), (39 N. E. Rep. 144) ; Wilson v. 
 Wheeling, 19 W. Va. 323 (1882). 
 
 8 Denver v. Rhodes, 9 Col. 554 (1886); (13 Pac. Rep. 729); Mc- 
 Carthy V. Syracuse, 46 N. Y. 194 (1871) ; Wright v. Wilmington, 92 
 N. C. 156 (1885). 
 
 ■1 Parker v. Macon, 39 Ga. 725 (1869); Atlanta v. Perdue, 53 Ga. 
 607 (1875); Rockfordo. Hildebrand, 61 111. 155 (1871) ; Fahey w. Har- 
 vard, 62 111. 28 (1871) ; Centralia v. Krouse, 64 111. 19 (1872) ; Chicago 
 V. Hoy, 75 111. 530 (1874) ; Chicago v. McGiven, 78 111. 347, 352 (1875) ; 
 Aurora v. Hillman, 90 111. 61 (1878) ; Joliet v. Walker, 7 111. App. 267 
 (1880) ; Fort Wayne v. De Witt, 47 Ind. 391 (1874) ; Aurora v. Bituer, 
 
 6 Brown v. Atlanta, 66 Ga. 71, 77 (1880); Jenney v. Brooklyn, 
 120 N. Y. 164 (1890), (24 N. E. Rep. 274) ; Bishop v. Schuylkill, 
 8 Atl. Rep. 449 (Pa. 1887). 
 
 A broader rule of liability appears to be laid down in certain early 
 Ohio cases. See McCombs «. Akron, 15 Oh. 474(1846); Rhodes u. 
 Cleveland, 10 Oh. 159 (1840). 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 21 
 
 § 9. The Liability limited by the Means for Perform- 
 anoe. — It is a general principle that nothing can consti- 
 tute a duty which the law does not afford the means to 
 perform. This principle applies with peculiar force to 
 municipal corporations, confined as they are to the exer- 
 cise of those powers, and those only, that the legislature 
 has conferred upon them. It is generally conceded, there- 
 fore, that the obligation to perform the private and mu- 
 nicipal duties which rest upon them is strictly limited 
 by the means at their command with which to perform 
 them.^ Municipal corporations are, consequently, held 
 not to be liable for any failure to undertake a work, to 
 pay for which they have not the means at their command.^ 
 
 This limitation upon their liability, however, does not 
 depend ultimately upon the question whether or not they 
 have funds actually in the treasury which might have 
 been applied to remedy the conditions that caused the 
 damage.^ The vital question in every case is whether or 
 
 100 Ind. 396 (1884) ; Douloii v. Clinton, 33 la. 397 (1871); Holmes u. 
 Hamburg, 47 la. 348 (1877); Stafiordi;. Oskaloosa, 57 la. 748 (1882), 
 (11 N. W. Rep. 668) ; Cook v. Anamosa, 66 la. 427, 428 (1885), (23 
 N. W. Rep. 907); Atchison v. King, 9 Kan. 550, 557 (1872); Smith 
 V. Leavenworth, 15 Kan. 81 (1875) ; Wellington v. Gregson, 31 Kan. 
 99 (1883), (1 Pac. Rep. 253); Craig v. Sedalia, 63 Mo. 417 (1876); 
 Hutson V. Mayor, etc. of New York, 9 N. Y. 183 (1853) ; McGinty v. 
 Same, 5 Duer, (N. Y.) 674. (1856) ; Hart v. Brooklyn, 86 Barb. (N. Y.) 
 226 (1862); Todd v. Troy, 61 N. Y. 506 (1875); Ring v. Cohoes, 77 
 N. Y. 83, 86 (1879); Goodfellow v. Mayor, etc. of New York, 100 
 N. Y. 15 (1885), (2 N. E. Rep. 462) ; Hunt v. Same, 109 N. Y. 134 
 (1888), (16 N. E. Rep. 320) ; Soranton u. Catterson, 94 Pa. St. 202 
 (1880); Noble v. Richmond, 31 Gratt. (Va.) 271 (1879). 
 
 1 Garlinghouse v. Jacobs, 29 N. Y. 297 (1864) ; Hover v. Barkhoof, 
 44 N. Y. 113 (1870); Hines v. Lockport, 50 N. Y. 236 (1872); Erie 
 V. Schwingle, 22 Pa. St. 384 (1853) ; Evanston v. Gunn, 99 U. S. 660, 
 667 (1878), and cases cited in following notes. 
 
 2 Garlinghouse v. Jacobs, 29 N. Y. 297 (1864). 
 
 8 If there are funds in the treasury that might have been applied 
 to remedy the defective conditions which caused the damage, it makes 
 
22 LIABILITY OP MUNICIPAL COEPORATIONS FOR TOET. 
 
 not, if the necessary funds are not in the treasury, the 
 corporation has the power to raise them by taxation or 
 otherwise,^ or has the power to enforce contributions of 
 labor from its citizens by means of which the necessary 
 work might have been done.^ For, if it possesses either 
 the power to raise the necessary funds, or the power to 
 enforce contributions of labor, by the exercise of which 
 the means for removing the defective conditions might 
 have been supplied, and yet neglects to exercise such 
 power, the defence of a lack of means can afford it no 
 protection. 
 
 Bat, while a lack of means may afford a defence for a 
 failure to do what would constitute a duty if there were 
 sufficient funds at command, it does not furnish an 
 excuse for a failure to use due care and skill in the execu- 
 tion of whatever work a municipal corporation has actu- 
 ally undertaken. Thus, where a city undertook to grade 
 a street and to construct gutters therein, and did the work 
 in a careless and unskilful manner because, as it was 
 alleged, of a lack of means, and the plaintiff was damaged 
 
 no difference how they came there. Thus, where it appeared that the 
 funds raised by taxation for the year had been exhausted ; that the 
 corporation was prohibited by its charter from pledging its credit; 
 but that there was money in the treasury which had been raised on 
 the individual credit of the members of the common council, and 
 which might have been used to remove the defect that caused the 
 injury, it was held that, so far as the question of means was concerned, 
 the corporation was liable. Moon v. Ionia, 81 Mich. 635 (1890), (46 
 N. W. Rep. 25). 
 
 1 Albrittin v. Huntsville, 60 Ala. 486 (1877) ; Shartle v. Minne- 
 apolis, 17 Minn. 308 (1871) ; Adsit v. Brady, 4 Hill (N. Y.), 630 (1843) 
 Peach V. Utica, 10 Hun (N. Y.), 477 (1877) ; Eveleigh v. Hounsfleld. 
 34 Hun (N. Y.), 140 (1884) ; Erie v. Schwingle, 22 Pa. St. 384 (1853) 
 Evanston v. Gunn, 99 U. S. 660, 667 (1878). 
 
 2 Shelby v. Clagett, 46 Oh. St. 549 (1889), (22 N. E. Rep. 407) 
 and see also Whitfield v. Meridian, 66 Miss. 570 (1889), (6 So. Rep. 
 244) ; Monk v. New Utrecht, 104 N. Y. 552 (1887), (11 N. E. Rep, 
 268). 
 
THE GENERAL PRINCIPLES OP THE LIABILITY. 23 
 
 in consequence of such negligence, it was held that the 
 lack of funds afforded no defence.^ 
 
 1 Bartle v. Des Moines, 38 la. 414 (1874). 
 
 The legislature has the power, unless restrained by the state consti- 
 tution, to insert in the charter of a municipal corporation a provision 
 relieving it from liability for any non-feasance or misfeasance of its 
 officers. Gray v. Brooklyn, 50 Barb. (N. Y.) 365 (1868). 
 
 In Louisville u. McGill, 52 S. W. Rep. 1053 (Ky. 1899), a statutory 
 provision pi-escribing a limitation of six months as to actions against 
 cities of the first class for injuries to person or property was declared 
 to be special legislation, and therefore unconstitutional. 
 
 A municipal corporation has been held not to be liable for damages 
 resulting from a conspiracy among its inhabitants to prevent, by 
 threats and personal violence, the living and laboring of colored people 
 within its limits, even though it had full knowledge of such conspiracy. 
 Wallace v. Norman, 9 Okl. 339 (1900), (60 Pao. Rep. 108). 
 
24 LIABILITY OP MUNICIPAL COEPORATIONS FOR TOET. 
 
 CHAPTER 11. 
 
 THE LIABILITY POE ULTEA TIRES TOETa. 
 
 § 10. Where the Injury is due to Acts outside the Scope 
 of the Corporate Powers. — Quasi corporations and mu- 
 nicipal corporations proper are purely the creatures of the 
 state. They have such powers as the state, by valid 
 legislative enactment,^ has seen fit expressly to confer 
 upon them, and such powers as are necessarily incident 
 to the powers so conferred. ^ They have no greater au- 
 thority, and can lawfully do no acts not so authorized. 
 Hence, in order to create any civil liability for tort on 
 the part of such corporate bodies, the acts complained of 
 must be within the scope of their corporate powers as 
 defined by charter and general laws. If such acts tran- 
 scend the powers so defined, they are in no wise respon- 
 sible for the consequences of them in a private action, 
 even though they may have expressly authorized their 
 officers to do them. Such acts are ultra vires, and cannot 
 be made the basis of an action for damages.^ 
 
 1 If the statute conferring a power upon a municipal corporation is 
 unconstitutional, it will not be liable for any injuries done while in 
 the exercise of it. Albany v. Cunliff, 2 N. Y. 165 (1849). 
 
 2 See Leeds v. Richmond, 102 Ind. 372 (1885), (1 N. E. Rep. 711). 
 8 Colorado. Idaho Springs v. Woodward, 10 Col. 104 (1887), (14 
 
 Pac. Rep. 49) ; Idaho Springs v. Filteau, 10 Col. 105 (1887), (14 Pac. 
 Rep. 48). 
 
 Louisiana. Hoggard v. Monroe, 51 La. An. 683 (1899), (25 So. 
 Rep. 349). 
 
 Maine. Seele v. Deering, 79 Me. 343 (1887), (10 Atl. Rep. 45). 
 
 Maryland. Horn v. Baltimore, 30 Md. 218 (1868). 
 
 Massachusetts. Anthony v. Adams, 1 Met. 284 (1840); Cushing v. 
 
THE LIABILITY FOE ULTRA VIRES TORTS. 25 
 
 Bedford, 125 Mass. 526 (1878); Lemon v. Newton, 134 Mass. 478 
 (1883). 
 
 Minnesota. Boys v. Albert Lea, 74 Minn. 230 (1898), (76 N. W. 
 Kep. 1131). 
 
 Missouri. Worley v. Columbia, 88 Mo. 106 (1885). 
 
 New Hampshire. Wakefield v. Newport, 60 N. H. 374 (1880). 
 
 New York. Smith u. Rochester, 76 N. Y. 506 (1879). 
 
 Utah. Royce v. Salt Lake City, 15 Utah, 401 (1897), (49 Pac. Kep. 
 290). 
 
26 LIABILITY OF MUNICIPAL COBPOEATIONS FOB TORT. 
 
 CHAPTER III. 
 
 THE LIABILITY FOE THE ACTS OF OFFICERS AND AGENTS. 
 
 § 11. The Doctrine of Respondeat Superior. — There Can 
 be no question to-day, if there ever was, but that the 
 general common law doctrine which requires the superior 
 or employer to answer civilly for any neglect or want of 
 skill on the part of his servant or agent while acting in 
 the line of his duty, by which another is injured, applies 
 to municipal corporations. Indeed, it may be set down 
 as well settled that, in a proper case, the maxim respon- 
 deat superior applies to them in the same manner and to 
 the same extent as in the case of private individuals. The 
 difficulty experienced by the courts has been, for the most 
 part, not in determining whether the maxim had any 
 application to them, but in determining whether the par- 
 ticular case was a proper one for its application, — in 
 other words, in determining whether or not the relation 
 of superior and servant or agent existed between the 
 corporation and the person whose negligence caused the 
 damage. ^ And this has, in some instances, proved to be 
 a question of considerable difficulty.^ 
 
 It is, of course, familiar law that the liability of a 
 superior or employer for the acts of his servant or agent 
 rests upon the right of the former to select his own ser- 
 
 1 Wilcox V. Chicago, 107 111. 334 (1883) ; Maxmilian v. Mayor, etc. 
 of New York, 62 N. Y. 160 (1875) ; Smith v. Rochester, 76 N. Y. 506 
 (1879) ; Dayton v. Pease, 4 Oh. St. 80 (1854). 
 
 2 See Bailey v. Mayor, etc. of New York, 3 Hill (N. Y.) 531 (1842) ; 
 and Mayor, etc. of New York v. Bailey, 2 Den. (N. Y.) 433 (1845). 
 
LIABILITY FOE THE ACTS OP OFFICERS AND AGENTS. 27 
 
 vant or agent; to discharge him if he proves to be not 
 competent, or skilful, or well behaved; to determine his 
 duties; and to direct and control him while engaged in 
 the performance of them. This broad right is the whole 
 foundation of the doctrine of respondeat superior. If 
 such right does not exist in any particular case, the de- 
 fendant cannot properly be regarded as the superior of the 
 person who caused the damage, and this doctrine, there- 
 fore, can have no application to it. 
 
 A municipal corporation as a superior or employer 
 occupies a somewhat unique position. Though an agent 
 or official may derive his appointment from it and be 
 engaged in the performance of its duties, he may neverthe- 
 less not be its agent within the above rules. The ultimate 
 question in every case appears to be : What was the nature 
 of the duty in the performance of which the negligent 
 agent or official was engaged at the time of the injury or 
 damage? Was it a public, governmental duty imposed by 
 the legislature upon such official when selected by the 
 corporation? Or was it a private, municipal duty, under- 
 taken for the emolument of, and under the full control 
 of, the corporation? It is the universal rule that, if the 
 duty was of the former class, the relation of superior 
 and agent does not exist, and that consequently the maxim 
 respondeat superior does not apply ; ^ but otherwise, if the 
 duty falls within the latter class. ^ 
 
 § 12. The Method of appointing Officers and Agents. — 
 As affecting the question of the responsibility of a mu- 
 nicipal corporation for the acts of the officers and agents 
 who are engaged in the performance of the duties resting 
 upon it, the manner in which they receive their appoint- 
 ment is not material. It can hardly be considered even 
 
 1 See cases cited under §§ 17-22, post. 
 
 2 See cases cited under §§ 23-25, post. 
 
28 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 as a makeweight that might aid in the determination of 
 the question.^ Thus, an officer may be appointed directly 
 by the state authorities, and yet be an agent of the corpo- 
 ration for whose acts it may be liable.^ But, when an 
 officer is so appointed, it is essential, in order to fasten 
 the liability for his acts upon the corporation, that it 
 should have accepted him as its officer.** On the other 
 hand, a municipal corporation may not be responsible for 
 the negligent or tortious acts of officers or agents whose 
 appointment comes immediately or intermediately from 
 itself.* 
 
 But, however he may receive his appointment, before 
 any liability can attach to the corporation, the officer for 
 whose tortious act it is sought to hold it responsible must 
 be an officer de jure. It is not enough that he is a de 
 facto officer, engaged at the time in the performance of 
 the duties incident to the office to which he had been 
 chosen. Thus, where a pound-keeper had been duly 
 elected, had taken the oath of office, and had entered upon 
 the performance of its duties, but his bond as such officer 
 had not been approved, as was required by statute, it was 
 held that, since he had not been legally qualified to act for 
 the corporation, it was not liable for his tortious acts.^ 
 
 § 13. The Competency of the OfBoer or Agent. — When 
 the selection of officers and agents rests with the munici- 
 pal corporation itself, it is bound to exercise due care and 
 
 1 Barnes v. District of Columbia, 91 U. S. 540, 546 (1875) ; Bryant 
 V. St. Paul, 33 Minn. 289 (1885), (23 N. W. Rep. 220). 
 
 2 Bailey v. Mayor, etc. of New York, 3 Hill (N. Y.), 531 (1842) ; 
 Esberg Cigar Co. v. Portland, 34 Oreg. 282 (1899), (55 Pac. Rep. 961). 
 
 * Van Valkenburgh v. Mayor, etc. of New York, 43 Barb. (N. Y.) 
 109 (1864). 
 
 ^ Maxmilian v. Mayor, etc. of New York, 62 N. Y. 160 (1875) ; 
 Aldrioh v. Tripp, 11 R. I. 141 (1875), and cases cited under §§ 17-22, 
 post. 
 
 5 Rounds V. Bangor, 46 Me. 541 (1859). 
 
LIABILITY FOB THE ACTS OP OFFICERS AND AGENTS. 29 
 
 prudence to select such as are competent to perform the 
 duties of the office to which they are appointed, particu- 
 larly if those duties are of such a character as to require 
 special knowledge or technical skill. If there is a failure 
 in this regard, and an incompetent officer is selected, the 
 corporation cannot escape responsibility under the plea 
 that it acted on his advice and relied on his judgment.^ 
 
 If, however, a corporation has selected an officer com- 
 petent to discharge the duties resting upon him, it has 
 discharged its whole duty in this direction, and no direct 
 omission or negligence can be attributed to it. Thus, 
 where a corporation had appointed a competent engineer 
 who had in good faith drafted the plans for a culvert, but 
 through an error in judgment had not made provision for 
 one sufficiently large to accomplish the desired purpose, it 
 was held that the corporation was not responsible for the 
 damage resulting from such insufficiency.^ 
 
 § 14. ITuauthorized Acts of OfBcers and Agents — Rati- 
 fication. — It is a matter of familiar law that the responsi- 
 bility of a superior for the acts of those in his service 
 depends in a considerable measure upon the relation of 
 those acts to the service in the course of which they were 
 performed. It is not every tortious act of the servant that 
 imposes liability upon him, but only those done while the 
 servant was acting in the line of his employment. 
 
 These common law principles apply to municipal cor- 
 porations in like manner as to individuals. They also 
 are not, as a general rule, responsible for the wholly 
 unauthorized acts of their officers and agents, although 
 
 1 Rochester White Lead Co. v. Rochester, 3 N. Y. 463, 465 (1850). 
 But see Craig v. Charleston, 180 III. 154 (1899), (.54 N. E. Rep. 184). 
 
 2 Van Pelt v. Davenport, 42 la. 308, 312 (1875). The court in 
 that case says : " If he is sufficiently competent and makes a mistake 
 after the honest exercise of his best judgment, it is sucli a mistake as 
 is inseparable from human action." 
 
30 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 they may be done under color of office.^ To render them 
 responsible for tortious acts committed by persons claim- 
 ing to act for them, or by their authority, it must appear 
 that such persons were expressly authorized by the mu- 
 nicipal government to do the acts in question ; or that they 
 were done hona fide in pursuance of a general authority to 
 act for the municipality on the subject to which they re- 
 late ; or that the acts, originally unauthorized, were sub- 
 sequently adopted and ratified by the corporation. ^ 
 
 The power of municipal corporations to ratify acts done 
 without original authority appears to be exactly coexten- 
 sive with the power to authorize them in the beginning. 
 It cannot be broader. And a ratification in the case of a 
 corporation maiy be inferred from any facts from which it 
 might be inferred in the case of an individual.^ But the 
 
 1 Chicago V. McGraw, 75 111. 566 (1874) ; Ball v. Woodbine, 61 la. 
 83 (1883), (15 N. W. Rep. 846) ; Cumberland v. Willison, 50 Md. 
 138, 158 (1878); Morrison v. Lawrence, 98 Mass. 219 (1867); Mc- 
 Carthy V. Boston, 135 Mass. 197, 200 (1883) ; Cuyler v. Rochester, 12 
 Wend. (N. Y.) 165 (1834) ; Everson v. Syracuse, 100 N. Y. 577 (1885), 
 (3 N. E. Rep. 784) ; Donnelly v. Tripp, 12 R. I. 97 (1878) ; Elliott v. 
 Philadelphia, 75 Pa. St. 347 (1874). " The duties and powers of the 
 officers of a municipal corporation are prescribed by the statute, and 
 every person dealing with them as such, may know, and is charged 
 with the knowledge of the nature of their duties and extent of their 
 powers." Treadway v. Schnauber, 1 Dak. 286, 248 (1875), (46 N. W. 
 Rep. 464). And these powers cannot be extended by contract. Man- 
 ley V. Atchison, 9 Kan. 358 (1872). 
 
 2 Thayer v. Boston, 19 Pick. (Mass.) 511 (1837) ; Hilsdorf w. St. 
 Louis, 45 Mo. 94 (1869) ; Peters v. Mayor, etc. of New York, 8 Hun 
 (N. Y.), 405 (1876); Sprague i-. Tripp, 13 R. I. 38 (1880). 
 
 "Whether a particular act, operating injuriously to an individual, 
 was authorized by the city, by any previous delegation of power^ 
 general or special, or by any subsequent adoption and ratification of 
 particular acts, is a question of fact, to be left to a jury, to be decided 
 by all the evidence in the case." Chief Justice Shaw in Thayer v. 
 Boston, 19 Pick. (Mass.) 511, 516 (1837). 
 
 3 Dubuque Fem. College v. Dubuque, 13 la. 555 (1862) ; Wilde ». 
 New Orleans, 12 La. An. 15 (1850) ; Emerson v. Newbury, 13 Pick. 
 
LIABILITY FOE THE ACTS OP OFFICERS AND AGENTS. 31 
 
 mere fact of ratification cannot extend their liability for 
 tort to matters as to whicli no liability would otherwise 
 attach to them. Thus, it has been held that since a mu- 
 nicipal corporation was not liable for the unlawful acts of 
 its police officers while engaged in the performance of their 
 duties, it could not become so by subsequently ratifying 
 such acts.^ 
 
 § 15. Ultra Vires Acts. — In order to establish a liabil- 
 ity against a municipal corporation for the tortious acts of 
 its officers or agents, it is essential that those acts should 
 be within the scope of the corporate powers, as provided 
 by charter or positive enactment of law. If the acts com- 
 plained of were outside of the authority and power of the 
 corporation as conferred by the legislature, it is not liable, 
 whether its officers directed their performance or they 
 were done without any express direction or command. 
 Such acts are ultra vires — wholly beyond the power of the 
 corporation to do, and cannot therefore be made the basis 
 of an action for damages.^ And this rule applies also 
 
 (Mass.) 377 (1832) ; Davis v. Jackson, 61 Mich. 530 (1886), (28 K W. 
 Kep. 526); Peterson v. Mayor, etc. of New York, 17 N. Y. 449, 453 
 (1858) ; City v. Hays, 93 Pa. St. 72 (1881). 
 
 In Mitchell v. Rockland, 52 Me. 118, 125 (1860), Chief Justice 
 Appleton says, by way of dictum: " It may well be doubted, whether 
 the city government could legally ratify the negligent, careless, or 
 tortious acts of their officers, knowing them to be such, so as to make 
 the city liable therefor. . . . There is no authority given to the town, 
 to ratify the official negligence of its officers. A distinction may be 
 taken between the ratification of an unauthorized act by an individual, 
 who is personally responsible for the consequences of his action, and 
 a ratification by the officers of a municipal corporation, the effect of 
 which would be to impose burdens more or less onerous upon their 
 constituents." No authority has been found in support of the views 
 here expressed. 
 
 1 Calwell V. Boone, 51 la. 687, 689 (1879), (2 N. W. Eep. 614) ; 
 Buttrick V. Lowell, 1 Allen (Mass.), 172 (1861). 
 
 2 Browning v. Owen County, 44 Ind. 11 (1873) ; Shelby County v. 
 
32 LIABILITY OF MUNICIPAL CORPORATIONS FOE TORT. 
 
 where the corporation was, at the time of the injury, 
 acting under the provisions of a statute that proved to be 
 unconstitutional.^ 
 
 This class of cases, in which there is an entire want 
 of authority in the corporation itself to act in the premises, 
 is, of course, to be distinguished from that class where 
 the authority to do the acts complained of exists, but has' 
 been defectively or irregularly exercised.^ In the latter, 
 class of cases the corporation is liable in an action to the 
 same extent as any employer. ^ 
 
 § 16. Where the Duty is impoBed, not upon the Cor- 
 poration, but upon the Officer. — Municipal corporations 
 are legally responsible only for the performance of duties 
 due from them in their corporate capacity. This is 
 simply the application to them of a general principle of 
 the common law. It follows from this that if, under the 
 terms of the act of the legislature that creates the duty, its 
 performance is imposed upon specified officials, the cor- 
 poration is not liable for their tortious acts done in the 
 course of the performance of that duty, even though it be 
 a duty ordinarily due from the corporation itself. Such 
 
 Deprez, 87 Ind. 509 (1882); Seele v. Deering, 79 Me. 343 (1887) ; (10 
 Atl. Rep. 45) ; Anthony v. Adams, 1 Met. (Mass.) 284 (1840) ; Mor- 
 rison V. Lawrence, 98 Mass. 219 (1867); Cavanagh v. Boston, 139 
 Mass. 426 (1885); (1 N. E. Rep. 834); Cheeney u. Brookfield, 60 Mo. 
 53 (1875); Worley v. Columbia, 88 Mo. 106 (1885); Wakefield v. 
 Newport, 60 N. H. 374 (1880) ; Albany v. Cunliff, 2 N. Y. 165 (1849) ; 
 Smith V. Rochester, 76 N. Y. 506 (1879); Hart v. Bridgeport, 13 
 Blatch. (U. S. C. C.) 289, 294 (1876). 
 
 " Municipal corporations are limited to the exercise of powers ex- 
 pressly conferred, and those not specially delegated are prohibited." 
 Mr. Justice Ray, in Worley v. Columbia, 88 Mo. 106, 111 (1885). 
 
 1 Albany v. Cunliif, 2 N. Y. 165 (1849). 
 
 2 See Treadway v. Schnauber, 1 Dak. 236, 249 (1875), (46 N. W- 
 Rep. 464). 
 
 ' Howell V. Buffalo, 15 N. Y. 512 (1857), and see cases cited under 
 § 13, ante. 
 
LIABILITy FOR THE ACTS OF OFFICERS AND AGENTS. 33 
 
 officials are regarded as independent, bearing no personal 
 relation to the corporation. Thus, where water commis- 
 sioners were, by the terms of the statute under which they 
 were appointed and acted, made a board wholly independ- 
 ent of the municipal authorities in the performance of 
 the duties relative to the city waterworks, it was held 
 that the corporation was not liable for their negligent acts 
 as such officers.* And so, where street commissioners 
 were appointed and acted under a statute which imposed 
 upon them as such officials the duty of keeping the high- 
 ways of the corporation in proper repair, it was held that 
 the corporation was not responsible for the consequences 
 of their neglect of this duty.^ 
 
 § 17. The Nature of the Duty in the Performance of 
 which the Injury is done. — ■ As was pointed out in a prior 
 section,^ the test question in order to determine whether 
 or not a municipal corporation is responsible for the acts of 
 any particular officers or agents is not. By whom were 
 they appointed ? but. What was the character of the duty 
 in the performance of which they were engaged at the time 
 of the injury ?* The general principle is well settled that 
 
 1 Ashby V. Erie, 85 Pa. St. 286 (1877). 
 
 2 Hickok V. Plattsburg, 15 Barb. (N. Y.) 427 (1853). 
 
 To the same point see also Martin v. Brooklyn, 1 Hill (N. Y.), 
 545, 550 (1841) ; Ham r. Mayor, etc. of New York, 70 N. Y. 459 
 (1877) ; New York, etc. Lumber Co. v. Brooklyn, 71 N. Y. 580 (1878) ; 
 Theall v. Yonkers, 21 Hun (N. Y.), 265 (1880). And see Sutton v. 
 Board of Police, 41 Miss. 236 (1866). 
 
 s § 11, ante. 
 
 * See discussion in Bryant v. St. Paul, 33 Minn. 28!) (1885), (23 
 K. W. Rep. 220) ; Wilson v. Mayor, etc. of New York, 1 Den. (N. Y.) 
 595 (1845) i Maxmilian v. Mayor, etc. of New York, 62 N. Y. 160 
 (1875). The practical question is, says Mr. Justice Folger, in the 
 latter case, Are the acts that are to be done by the officers in question, 
 "acts to be done by them in their capacity as public officers in the 
 discharge of duties imposed upon them by the legislature for the pub- 
 lic benefit; or are they acts done for the defendant, in what may be 
 
 3 
 
34 LIABILITY OP MUNICIPAL COKPORATIONS FOR TORT. 
 
 where a corporation elects or appoints an officer, in obedi- 
 ence to an act of the legislature, who is to perform some 
 public service in which the corporation itself has no pri- 
 vate interest, and from which it derives no special advan- 
 tage in its corporate capacity, such officer is not to be 
 regarded as an agent of the corporation for whose negli- 
 gence or want of skill it can be held responsible. In 
 every such case the officer is a purely public official, 
 whose functions are the performance of governmental 
 duties, which are imposed and defined by the legislature, 
 and not by the corporation. The power of the latter in 
 the premises is exhausted when it has appointed or elected 
 the officer. His official tenure and the manner of per- 
 forming his official duties are independent of the will of 
 the corporation, and are determined by the provisions of 
 the act of the legislature under which he was appointed or 
 elected. It necessarily follows from this that there is no 
 ground upon which the corporation can fairly be consid- 
 ered as the superior of such officer, and so liable for his 
 tortious acts.^ 
 
 called its private character, in the management of property or rights 
 voluntarily held by it for its own immediate profit or advantage as a 
 corporation, though inuring ultimately to the benefit of the public ? " 
 At page 167. 
 
 1 Small V. Danville, 51 Me. 359 (1864) ; Woodcock v. Calais, 66 Me. 
 234 (1877) ; Tindley v. Salem, 137 Mass. 171 (1884) ; Maxmilian v. 
 Mayor, etc. of ISTew York, 62 N. Y. 160 (1875) ; Bartlett v. Clarks- 
 burg, 45 W. Va. 398 (1898), (31 S. E. Rep. 918), and oases cited 
 under §§ 18-28, post. 
 
 In Mead v. New Haven, 40 Conn. 72 (1873), the defendant corpo- 
 ration was held not liable for the negligent acts of a boiler inspector, 
 on the ground that it had no pecuniary, or individual, or private in- 
 terest in the inspection of boilers. The court says : " Although the 
 power of the city over the subject is conferred by the charter and 
 not by the general law, yet the city must, we think, be regarded as the 
 agent of the government, and acting for the state and not for itself in 
 making the appointment of inspectors.'' 
 
 In Gibbes v. Beaufort, 20 S. C. 213 (1888), it was held that the cor- 
 
LIABILITY FOR THE ACTS OF OFFICEIIS AND AGENTS. 35 
 
 If, however, the officer is chosen to perform private 
 duties, from the performance of which the corporation 
 derives some emolument or advantage as a corporation, 
 though it may enure ultimately to the benefit of the public, 
 it is the superior of such officer and responsible for his 
 acts. For here it has voluntarily undertaken to perform 
 duties for its own profit, the agencies and the manner of 
 performing which are fully in its control. In short, the 
 municipal corporation in such cases assumes exactly the 
 same position as a private corporation, in like circum- 
 stances, and is subject to the same responsibilities. ^ 
 
 The general result of the adjudications upon this point 
 is summed up in a single sentence by Mr. Justice Currier 
 in Murtaugh v. St. Louis,^ as follows : " Where the officer 
 or servant of a municipal corporation is in the exercise 
 of a power conferred upon the corporation for its private 
 benefit, and injury ensues for the negligence or misfeasance 
 of such officer or servant, the corporation is liable, as in 
 the case of private corporations or parties ; but when the 
 acts or omissions complained of were done or omitted in 
 the exercise of a corporate franchise conferred upon the 
 corporation for the public good, and not for private cor- 
 porate advantage, then the corporation is not liable for 
 the consequences of such acts or omissions on the part of 
 its officers and servants. " 
 
 § 18. Officers performing Legislative or Judicial Duties. 
 — That large and varied class of discretionary duties 
 
 poration was not liable in damages to the plaintiff for injuries to Ms 
 ferry, caused by the establishment of one by the municipal author- 
 ities, which was to be a free ferry, on the ground that this was to 
 facilitate commerce ; to provide certain and safe transit to the pub- 
 lic ; to promote general convenience, and not the private advantage of 
 the corporation. 
 
 1 Aldrich v. Tripp, 11 R. I. 141 (1875), and cases cited under 
 §§ 24-26, posl. 
 
 2 44 Mo. 479, 480 (1869). 
 
36 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 which devolves upon municipal corporations, though, as 
 elsewhere pointed out,^ not strictly legislative or judicial, 
 .is governmental in nature. This appears never to have 
 been questioned. The rule has become firmly establidied, 
 therefore, that municipal corporations are not liable at 
 common law for the acts or onlissions of their officers or 
 agents done or omitted while engaged in the performance 
 of duties of this character. Thus, they are not liable for 
 a failure of their officers or agents either to enact ordi- 
 nances, or to enforce them after they are enacted,^ or for 
 damages that may be caused by their enforcement;^ nor 
 for their failure to abate private nuisances;^ nor for their 
 omission to provide or maintain sufficient reservoirs or 
 apparatus for fire extinguishing purposes ; ^ nor yet for a 
 failure to construct roads, sewers, or other municipal im- 
 provements, or for damages resulting from the plan of 
 such improvements.^ 
 
 1 § 6, ante. 
 
 2 Carroll v. St. Louis, 4 Mo. App. 191 (1877) ; Griffin v. Mayor, 
 etc. of New York, 9 N. Y. 456 (1853) ; Hill v. Charlotte, 72 N. C. 55 
 (1875); Western College of Medicine v. Cleveland, 12 Oh. St. 375 
 (1861). 
 
 s Trammell v. Russellville, 34 Ark. 105 (1879). 
 
 * Davis V. Montgomery, 51 Ala. 139 (1874) ; Cain v. Syracuse, 95 
 N. Y. 83 (1883); McDade v. Chester, 117 Pa. St. 414 (1887), (12 Atl. 
 Rep. 421), and oases cited under § 6, ante. 
 
 6 Brinkmeyer u. Evansville, 29 Ind. 187 (1867); Tainter r. Worces- 
 ter, 123 Mass. 311 (1877) ; Grant r. Erie, 69 Pa. St. 420 (1871), and 
 cases cited under § 6, ante. 
 
 « Van Pelt v. Davenport, 42 la. 308 (1875) ; Child v. Boston, 4 Allen 
 (Mass.), 41, 51 (1862) ; Wilson v. Mayor, etc, of New York, 1 Den. 
 (N. Y.) 595 (1845); Cole v. Medina, 27 Barb. (N. Y.) 218 (1845); 
 Dayton v. Pease, 4 Oh. St. 80 (1854) ; Carr v. Northern Liberties, 35 
 Pa. St. 324 (1860), and cases cited under § 6, ante. 
 
 In Wilson v. Mayor, etc. of New York, 1 Den. (N. Y.) 595 (1845), 
 Mr. Justice Beardsley says, at page 599 : " Where the duty alleged to 
 have been violated is purely judicial, a different rule prevails ; for no 
 action lies in any case, for misconduct or delinquency, however gi'oss, 
 
LIABILITY FOR THE ACTS OP OFFICEES AND AGENTS. 37 
 
 If, however, the ofiRcer or agent who is to perform 
 duties of a legislative or judicial nature is chosen directly 
 by the corporation, it is bound to exercise due care and 
 diligence in order to select a man competent to perform 
 the duties of the office. If it fails in its duty in this 
 regard, it cannot shield itself behind the above rule, but 
 will be required to respond in damages for the injudi- 
 cious acts of any incompetent officer whom it has negli- 
 gently selected. 1 
 
 § 19. Police Officers. — Municipal corporations are not, 
 by virtue of any inherent power, conservators of the public 
 peace. Whatever powers and duties they have in that 
 direction are delegated to them by the sovereign power of 
 the state. Usually, though of course not necessarily nor 
 always, the appointment of police officers devolves upon 
 them as a convenient mode of exercising a function of 
 government; but when appointed, the powers and duties 
 of such officers are derived from and defined by, not 
 the corporations, but the common law and the acts of the 
 legislature. "The detection and arrest of offenders, the 
 preservation of the public peace, the enforcement of 
 the laws, and other similar powers and duties with which 
 police officers and constables are entrusted, are derived 
 
 in the performance of judicial duties. And although the officer may 
 not in strictness be a judge, still, if, his powers are discretionary, 
 to be exerted or withheld, according to his own view of what is neces- 
 sary and proper, they are in their nature judicial, and he is exempt 
 from all responsibility by action for the motives which influence him, 
 and the manner in which such duties are performed. If corrupt, he 
 may be impeached or indicted, but the law will not tolerate an action 
 to redress the individual wrong which may have been,done." And at 
 page 600 he adds: " A mandamus will not lie to control the discre- 
 tion of any tribunal or officer, nor is such tribunal or officer answer- 
 able in any form of action, for the manner in which any duty, of a 
 judicial or discretionary nature, shall have been performed." 
 1 Rochester White Lead Co. v. Koohester, 3 N. Y. 463 (1850). 
 
38 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 from the law, and not from the city or town under which 
 they hold their appointment. " i Such officers are thus 
 plainly engaged in a purely public service — in the per- 
 formance of strictly governmental duties. They cannot be 
 considered in any sense as the servants or agents of the 
 corporation. The rule has become well settled, therefore, 
 that municipal corporations cannot be held responsible at 
 common law for the negligent doings or for the misdoings 
 of their police officers while engaged in the performance of 
 their official duties as such officers.^ 
 
 In accordance with this rule courts have held that they 
 are not liable for an assault and battery committed by a 
 member of their police force ;2 nor for any unlawful arrest 
 or false imprisonment;* nor again for a failure of their 
 
 1 Chief Justice Bigelow in Buttrick v. Lowell, 1 Allen (Mass.), 172, 
 173 (1861). 
 
 2 Campbell v. Montgomery, 53 Ala. 527, 531 (1875) ; Lafayette v. 
 Timberlake, 88 Ind. 330 (1882); Pollock's Adm'r v. Louisville, 13 
 Bush (Ky.), 221 (1877) ; Elliott v. Philadelphia, 75 Pa. St. 347 (1874) ; 
 Norristown v. Fitzpatrick, 94 Pa. St. 121 (1880). 
 
 8 McElroy v. Albany, 65 Ga. 387 (1880); Calwell v. Boone, 51 la. 
 687 (1879), (2N. W. Rep 614); Buttrick v. Lowell, 1 Allen (Mass.), 
 172 (1861). 
 
 In MoEh-oy v. Albany, 65 Ga. 387 (1880), it appeared that the 
 officer seized the plaintiff and threw him down, inflicting serious 
 bodily injury upon him; that the officer was at the time intoxicated 
 and was not attempting to make an arrest. The court applied the 
 general rule to the case, and held that the defendant corporation was 
 not liable. 
 
 ^ Grumbine v. Washington, 2 McArthur (D. C), 578 (1876); 
 Cook V. Macon, 54 Ga. 468 (1875) ; Harris v. Atlanta, 62 Ga. 290 
 (1879); Attaway v. Cartersville, 68 Ga. 740 (1882); Odell v. Schroe- 
 der, 58 111. 353 (1871) ; Laurel v. Blue, 1 Ind. App. 128 (1890), (27 
 N. E. Rep. 301) ; Peters v. Lindsborg, 40 Kan. 654 (1889), (20 Pac. 
 Rep. 490) ; Kelley v. Cook, 21 R. I. 29 (1898), (41 Atl. Rep. 571) ; 
 Corsicana v. White, 57 Tex. 382 (1882). 
 
 In the application of this rule, it makes no difference that the 
 arrest was made without a wan-ant, Attaway v. Cartersville, 68 Ga. 
 740 (1882) ; Coley v. Statesville, 121 N. C. 301 (1897), (28 S. E. Rep. 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 39 
 
 police to protect the property of citizens ; ^ nor for prop- 
 erty negligently destroyed by the police themselves.^ 
 
 The fact that the officer, at the time he did the tortious 
 act, was engaged in the attempted enforcement of a city 
 ordinance, and not of a general law, does not alter the 
 above rule of immunity.^ "The authority to enact by- 
 laws," says Chief Justice Bigelow in Buttrick v. Lowell,* 
 
 482) ; Roj'ce v. Salt Lake City, 15 Utah, 401 (1897), (49 Pac. Rep. 
 290) I nor that the arrest or imprisontaent resulted from the enforce- 
 ment of an invalid or unconstitutional ordinance, Trammell v. Rus- 
 sellville, 34 Ark. 105 (1879) ; Easterly v. Irwin, 99 la. 694 (1896), (68 
 N. W. Rep. 919) ; Caldwell v. Prunelle, 57 Kan. 511 (1896), (46 Pac. 
 Rep. 949) ; Taylor v. Owensboro, 98 Ky. 271 (1895), (32 S. W. Rep. 
 948) ; Trescott v. Waterloo, 26 Fed. Rep. 592 (1895). 
 
 In McFadin v. San Antonio, 22 Tex. Civ. App. 140 (1899), (54 
 S. W. Rep. 48), it was held that a city was not answerable to a per- 
 son for an injury to his reputation caused by his arrest, conviction, 
 and imprisonment under a void ordinance. While in Craig v. Charles- 
 ton, 180 111. 154 (1899), (54 N. E. Rep. 184), the defendant city was 
 held not to be liable for the wrongful act of its mayor in appointing, 
 as special policeman, a person whom he knew to be unfit for the 
 ofiice. 
 
 In McGraw v. Marion, 98 Ky. 673 (1896), (34 S. W. Rep. 18), the 
 court held that the defendant city was answerable for the arrest and 
 imprisonment of the plaintiff by its officers while engaged in enforc- 
 ing a void and unconstitutional ordinance or by-law, which had been 
 enacted and was being enforced for the sole benefit of the defendant 
 city and of its citizens. And in Johnson City v. Wolfe, 103 Tenn. 277 
 (1899), (52 S. W. Rep. 991), it was held that while a municipal cor- 
 poration was not liable for the personal torts committed by a police- 
 man, yet if he acted under the direction of, or with the sanction of, 
 the authorities, his acts become those of the corporation, for which it 
 was responsible. 
 
 1 Prather v. Lexington, 13 B. Monroe (Ky.), 559 (1852) ; Hart v. 
 Bridgeport, 13 Blatchf. (U. S. C. C.) 289 (1876). 
 
 2 Dargan v. Mobile, 31 Ala. 469 (1858) ; Stewart v. New Orleans 
 9 La. An. 461 (1854), in effect overruling Johnson v. Municipality 
 No. One, 5 La. An. 100 (1850); Elliotts. Philadelphia, 75 Pa. St. 347 
 (1874). 
 
 3 Buttrick v. Lowell, 1 Allen (Mass.), 172, 174 (1861). 
 
 4 1 Allen (Mass.), 172, 174 (1861). 
 
40 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 "is delegated to the city by the sovereign power, and 
 the exercise of the autliority gives to such enactments the 
 same force and effect as i£ they had been passed directly 
 by the legislature. They are public laws of a local and 
 limited operation, designed to secure good order and to 
 provide for the welfare and comfort of the inhabitants. 
 In their enforcement, therefore, police officers act in their 
 public capacity, and not as the agents or servants of the 
 cilyT^ 
 
 And if it appears that the law or ordinance in the 
 course of the enforcement of which the officer committed 
 the tort was ultra vires and void, there is plainly no 
 liability upon the municipal corporation, for here the 
 additional defence of ultra vires is also' available.^ 
 
 Not being liable in the first instance for the tortious 
 acts of their police officers, municipal corporations cannot 
 become liable by taking any steps in the case that might 
 constitute a ratification of such officers' acts.'^ 
 
 » Trammell v. RussellviUe, 34 Ark. 105 (1879) ; Worley v. Colum- 
 bia, 88 Mo. 106 (1885). 
 
 2 Calwell V. Boone, 51 la. 687, 689 (1879), (2 N. W. Rep. 614); 
 Peters v. Lindsborg, 40 Kan. 654 (1889), (20 Pac. Rep. 490); Butt- 
 rick V. Lowell, 1 Allen (Mass.), 172, 174 (1861); and see also Odell ». 
 Schroeder, 58 111. 353 (1871). In the Massachusetts case it appeared 
 that the defendant corporation authorized and employed its city 
 solicitor to defend an action against one of its police oflEicers for an 
 assault and battery committed upon the plaintiff ; that the plaintiff 
 then brought suit against the defendant corporation upon the same 
 facts. The court held that these matters did not constitute a ratifica- 
 tion by the corporation of the tortious acts of the police officer so as 
 to render it liable for them. 
 
 In McKay v. Buffalo, 9 Hun (N. Y.), 401 (1876), affirmed in 74 
 N. Y. 619 (1878), and Whitfield v. Paris, 84 Tex. 431 (1892), (19 
 S. W. Rep. 566), the corporation was held not liable for injuries due 
 to the negligence of a policeman in shooting at a dog. And see to 
 same point, Culver v. Streator, 130 lU. 238 (1889), (22 N. E. Rep. 
 810). 
 
 Where it appeared that a policeman negligently propped up a trap 
 
LIABILITY FOB THE ACTS OF OFFICERS AND AGENTS. 41 
 
 § 20, Prison Officers. — The subject of personal liberty 
 has always been considered to be a matter which was of 
 concern to the public as a whole, and which it was the 
 function of government to regulate and control. Conse- 
 quently municipal corporations, while engaged in the 
 performance of duties relative to imprisonment, act in a 
 governmental capacity as the representatives of the state, 
 and derive from such performance no private advantage or 
 emolument. Prison officials are held, therefore, to be, not 
 the servants or agents of the corporations, but public 
 officers, engaged in a service owed to the whole com- 
 munity, for whose negligent or tortious acts the cor- 
 porations themselves are not responsible at common 
 law.i 
 
 § 21. Health and Hospital Officials. — The performance 
 of duties that relate to the preservation of the public health 
 and to the care of the indigent sick is likewise of concern 
 to the public as a whole. These duties constitute, there- 
 fore, still another class of governmental duties which 
 municipal corporations are bound, under the general laws 
 and for the welfare of the whole community, to see per- 
 formed, but in which they have no special interest and 
 
 door of a cellarway in a sidewalk before a police station, whereby a 
 traveller was injured, the court held that the defendant corporation 
 was liable, on the ground that the negligence was that of an agent of 
 the city in respect to the care of the highway and in respect to the use 
 of its own property. Carrington v. St. Louis, 89 Mo. 208 (1886), (1 
 S. W. Rep. 240). 
 
 1 Detroit v. Laughna, 34 Mich. 402 (1876) ; Doster o. Atlanta, 72 
 Ga. 233 (1884). In thi.s last case, the plaintiff, a convict, sued for an 
 assault committed upon him by a fellow convict ; the corporation was 
 held not liable. 
 
 In Johnson v. Municipality No. One, o La. An. 100 (1850), the de- 
 fendant corporation was held liable for the negligence of its prison 
 officers by which plaintiff's slave, who had been confined in the prison, 
 lost his life. This case was in effect overruled in Stewart v. New 
 Orleans, 9 La. An. 461 (1854). 
 
42 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 from which they derive no particular advantage in their 
 corporate capacity. The corporate officers who are en- 
 gaged in the performance of such duties are held, conse- 
 quently, to be public officers, for whose negligent doings 
 or misdoings municipal corporations are not responsible, 
 unless expressly made so by statute.^ 
 
 1 Ogg V. Lansing, 35 la. 495 (1872) ; Brown v. Vinalhaven, 65 Me. 
 402 (1876), where the defendant corporations were held not liable to 
 persons infected with contagious disease by reason of the negligence 
 of health officers in enforcing regulations intended to prevent the 
 spread of such diseases; Mitchell v. Rockland, 52 Me. 118 (I860), 
 where the defendant was held not liable for damages done to the 
 plaintiff's vessel by the negligence of health officers while engaged in 
 fumigating same ; Bryant v. St. Paul, 33 Minn. 289 (1885), (23 N. W. 
 Rep. 220), where the corporation was held not liable to a plaintiff 
 who was injured by falling into a vault that was negligently left 
 open by health officers; Bamber v. Rochester, 26 Hun (N. Y.), 587 
 (1882), in which the defendant corporation was held not liable for 
 the value of infected rags which had been destroyed by order of health 
 officers. 
 
 In Murtaugh v. St. Louis, 44 Mo. 479 (1869), Richmond v. Long, 
 17 Graft. (Va.) 375 (1867), the defendant corporations were held not 
 liable for the negligence or misconduct of the superintendent, nurses, 
 and attendants of a hospital while caring for non-paying patients; 
 and in Sherbourne v. Yuba Connty, 21 Cal. 113 (1862), and Summers 
 V. Daviess County, 103 Ind. 262 (1885), (2 N. E. Rep. 725), the de- 
 fendants were held not liable for the unskilfulness of a physician 
 employed by them to treat the indigent sick. 
 
 See also Tormey v. Mayor, etc. of New York, 12 Hun (N. Y.), 542 
 (1878). 
 
 Overseers of the poor also are public officers, for whose acts 
 municipal corporations are not responsible. Spring v. Hyde Park, 
 137 Mass. 554 (1884) ; New Bedford v. Taunton, 9 Allen (Mass.), 207 
 (1864). 
 
 This rule of immunity applies not only to the acts of such 
 officers themselves, but as well to the acts of all those employed by 
 them, regardless of the grade of the employee. This is, of course, 
 necessary in order to maintain the integrity of the general doctrine. 
 Thus, a corporation has been held not liable for the negligent acts of 
 a driver of an ambulance while performing his duties as an employee 
 of a board of public charities. Maxmilian v. Mayor, etc. of New 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 43 
 
 § 22. Members of the Fire Department. — It appears to 
 be generally conceded that the preservation of property 
 from destruction by fire is not a duty performed by munici- 
 pal corporations for their own private ad^'antage. Upon 
 the broad principle of the interdependence of one com- 
 munity upon every other community, it is recognized 
 that the performance of this duty interests and benefits 
 the whole public. And furthermore, it is obvious that the 
 corporations themselves derive no special gain or emolu- 
 ment from it, nor are immediately benefited by it in their 
 corporate capacity. The duty is rather governmental in 
 its nature, owed to the public, and performed for the pub- 
 lic good. The rule has, thus, become well established 
 that members of the fire department, when acting in the 
 discharge of their duties, are not servants or agents in 
 the employment of the corporation, for whose conduct it 
 can be held liable ; but they act as officers of the corpora- 
 tion, charged with the performance of a certain public duty 
 or service ; and no action at common law will lie against 
 the corporation for their negligence or improper conduct, 
 while acting in the discharge of their official duty.^ 
 
 In accordance with this rule it has been held that mu- 
 nicipal corporations are not liable for personal injuries 
 
 York, 62 N. Y. 160 (1875). And so as to the negligent acts of a 
 driver of a garbage wagon. Condict v. Jersey City, 46 N. J. L. 157 
 (1884). 
 
 1 Jewett V. New Haven, 38 Conn. 368 (1871) ; McKenna v. St. 
 Louis, 6 Mo. App. 320 (1878) ; Wild v. Paterson, 47 N. J. L. 406 
 (1885), (1 Atl. Rep. 490). 
 
 "An additional, if not more satisfactory reason," says Mr. Justice 
 Walker, in Wilcox v Chicago, 107 111. 334, 339 (1883), for adopting the 
 rule exempting municipal corporations from liability for the tortious 
 acts of members of their fire departments, " may be found in public 
 policy. ... To allow recoveries for the negligence of the fire depart- 
 ment would almost certainly subject property holders to as great, if 
 not greater, burthens than are suffered from the damages from fire." 
 
44 LIABILITY OF MUNICIPAL COBPOEATIONS FOR TORT. 
 
 caused by the negligence of members of their fire depart- 
 ments, while acting in the course of their official duty;' 
 nor for the destruction of any property due to the defec- 
 tive condition or negligent use of fire apparatus. ^ 
 
 It makes no difference in this rule whether the fire 
 department has been established and is regulated under a 
 special act of the legislature that was voluntarily accepted 
 by the corporation to which alone its terms applied ; ^ or 
 whether it was voluntarily organized under a general 
 law, the language of which was permissive in form and 
 the terms of which left the entire control over the depart- 
 ment to the corporation;* or whether it was wholly a 
 volunteer association with which the corporation had noth- 
 ing to do, save to ratify its acts and to accept its services.^ 
 
 1 Wilcox V. Chicago, 107 111., 334 (1883) ; Greenwoods. Louisville, 
 13 Bush (Ky.), 226 (1877) ; Fisher v. Boston, 104 Mass. 87 (1870) ; 
 Alexander v. Vioksburg, 68 Miss. 564 (1891), (10 So. Rep. 62); 
 0'Meara«. Mayor, etc. of New York, 1 Daly (N. Y.), 425 (1865); 
 Smith V. Rochester, 76 N. Y. 506 (1879) ; Freeman v. Philadelphia, 
 18 Phila. (Pa.) 154 (1879) ; Kies v. Erie, 135 Pa. St. 144 (1890), (19 
 Atl. Rep. 912) ; Dodge v. Granger, 17 R. I. 664 (1892), (24 Atl. Rep. 
 100) ; Lawson v. Seattle, 6 Wash. 184 (1893), (33 Pac. Rep. 347). 
 
 2 Torbush u. Norwich, 38 Conn. 225 (1871); Robinson v. Evans- 
 viUe, 87 Ind. 334 (1882) ; Grube v. St. Paul, 34 Minn. 402 (1886), 
 (28 N". W. Rep. 228); Heller v. Sedalia, 53 Mo. 159 (1873) ; Wheeler 
 V. Cincinnati, 19 Oh. St. 19, 22 (1869) ; Hayes v. Oshkosh, 33 Wis. 
 314 (1873). 
 
 3 Fisher v. Boston, 104 Mass. 87, 94 (1870). 
 * Wilcox V. Chicago, 107 111. 334 (1883). 
 
 5 Torbush v. Norwich, 38 Conn. 225 (1871). 
 
 In Welsh v. Rutland, 56 Vt. 228 (1883), the defendant was held 
 not liable for negligence of the fire department in thawing out a 
 hydrant, in consequence of which water collected in the street and 
 froze, and the plaintiff fell thereon and was injured. In Terhune v. 
 Mayor, etc. of New York, 88 N: Y. 247, 251 (1882), the corporation 
 was held not liable for the acts of its fire commissioners in wrong- 
 fully dismissing the plaintiff from oflBce. In Thompson v. Mayor, 
 etc. of New York, 52 N. Y. Sup. Ct. 427 (1885), the corporation was 
 held not liable for the negligence of its fire commissioners while 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 45 
 
 If the fire department was at the time of the accident 
 engaged in the performance of a service of a private na- 
 ture, such as taking part in a celebration, this fact will 
 not render the corporation liable. ^ The reasoning upon 
 which this conclusion is reached seems to be that the cor- 
 poration either had, or had not, authority to employ its 
 lire department in a service of such a nature. If it had 
 the authority, then the department was acting within the 
 scope of its duty, and the usual rule of immunity applies. 
 If it had not the authority, then the corporation, in so 
 employing it, was acting ultra vires, and on that ground 
 could not be held liable. 
 
 § 23. Tax Assessors and Collectors. — The assessment 
 and collection of general taxes for the support of the gov- 
 ernment are strictly functions of government. Municipal 
 corporations, while engaged in performing the duties 
 growing out of these functions, act in their capacity as 
 governmental agencies, and are discharging a public 
 service which the state has delegated to them for con- 
 engaged in testing apparatus before purchasing same. In Wild v. 
 Paterson, 47 N. J. L. 406 (1885), (1 Atl. Rep. 490), the defendant 
 was held not liable to a member of its fire department for injuries 
 due to a failure to keep its apparatus in proper condition. In Burrill 
 V. Augusta, 78 Me. 118 (1886), (3 Atl. Rep. 177), the corporation 
 was held not liable for the negligent management of its apparatus by 
 the firemen, in consequence of which the plaintifi's horse became 
 frightened and ran away. 
 
 1 Smith V. Rochester, 76 N. Y. 506 (1879). And see also Simon v. 
 Atlanta, 67 Ga. 618 (1881). 
 
 The fact that there is no alarm of fire, but that the firemen are 
 practising with their apparatus in the streets in order to become more 
 efficient, will not render the corporation liable for their negligence 
 while so doing. Thomas v. Findlay, 6 Oh. C. C. 241.(1892). 
 
 This same rule of immunity applies to the negligences of a fire 
 patrol, a corporation that is an auxiliary to the city government or to 
 its fire department. Boyd v. Insurance Patrol, 113 Pa. St. 269 (1886), 
 (6 Atl. Rep. 536). 
 
46 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 venience. The officers by whom the actual work con- 
 nected with the performance of these duties is done are, 
 therefore, public officers, and not in any legal sense the 
 agents or servants of the corporations themselves. Hence, 
 the doctrine of respondeat superior is held to have no 
 application to their acts. Thus, it has been decided that 
 municipal corporations are not responsible at common law 
 for the tortious acts of a city treasurer,^ or of assessors or 
 collectors of taxes,^ while acting in the line of their duty 
 as tax officers. 
 
 If, however, the tax in the course of the assessment or 
 collection of which the tort is committed, is not for gen- 
 eral governmental purposes, but is a special assessment of 
 a local character, made for some municipal improvement 
 in which the general public has no direct interest, the 
 above rule does not apply. Thus, where a corporation 
 laid out and opened a street, and assessed the benefits 
 therefrom upon the abutters but failed to do so in the 
 proper manner, and the plaintiff's property was seized and 
 sold under this void assessment, it was held that the col- 
 lection of an assessment of this nature was a strictly 
 municipal function, and the officers by whom it was dis- 
 
 1 Wallace u. Menasha, 48 Wis. 79 (1879), (4 N. W. Rep. 101). 
 
 2 Liberty v. Hurd, 74 Me. 101 (1882) ; Alger v. Easton, 119 Mass, 
 77 (1875) ; Dunbar v. Boston, 112 Mass. 75 (1873); Rossireu. Boston, 
 4 Allen (Mass.), 57 (1862) ; Lorillardu. Monroe, 11 N. Y. 392 (1851). 
 
 Where a warrant was issued to a constable, directing him to col- 
 lect from the persons named in a schedule annexed and upon tlie 
 assessment and tax-roll of a certain ward, the several sums opposite 
 to their names, and the constable seized property belonging to the 
 plaintiff, whose name did not appear upon either list, the court held, 
 in an action for conversion, that the corporation was hot liable. The 
 decision here was placed on the ground that the tortious taking by 
 the constable was neither authorized by it in the beginning nor sub- 
 sequently ratified. Being a wholly unauthorized act, the corporation 
 could not be made responsible for it. Everson v. Syracuse, 100 N. Y. 
 577 (1885), (8 N. E. Rep. 784). 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 47 
 
 charged were performing a municipal or corporate, and not 
 a public or governmental, duty ; and hence that the cor- 
 poration was liable for their tortious acts done in the 
 course of its performance.^ 
 
 § 24. Officers engaged in performing Private Duties. — 
 "When municipal corporations undertake to perform duties 
 
 1 Durkee v. Kenosha, 59 Wis. 123 (1883), (17 N. W. Rep. 677). 
 
 Surveyors of Highivays and Street Commissioners. — Such officers in 
 the New England States, at least where they are appointed under 
 general statutes in which their duties are prescribed, are commonly 
 held to be public officers, and not the agents or servants of the mu- 
 nicipal corporations from whom they receive tlieir appointment. The 
 principle of respondeat superior is held, therefore, not to apply to 
 their official acts. Judge v. Meriden, 38 Conn. 90 (1871) ; Woodcock 
 V. Calais, 68 Me. 231: (1877) ; Walcott v. Swampscott, 1 Allen (Mass.), 
 101 (1861 ;) Barney v. Lowell, 98 Mass. 570 (1868); Clark v. Easton, 
 146 ]\Iass. 43 (1888), (14 N. E. Rep. 795) ; BaU v. Winchester, 32 
 N. H. 435 (1855). Contra, Kobs v. Minneapolis, 22 Minn. 159 (1875) ; 
 Inman v. Tripp, 11 R. I. 520, 527 (1877). 
 
 In Woodcock v. Calais, 66 Me. 234 (1877), it appeared that the 
 street commissioner did the act complained of under an express or- 
 der from the city government ; the court held that the general rule of 
 immunity for the acts of such an officer did not apply to this case, bat 
 having expressly authorized the act, the corporation was liable. 
 
 Where it appeared that the city ordinances required the engineer 
 of the corporation to give information to private individuals as to the 
 established grade of streets, and that a fee was charged for this ser- 
 vice ; that the engineer by mistake incorrectly informed the plaintiff 
 as to the established grade of the street adjacent to his lot, in conse- 
 quence of which damage resulted to him, it was held that the corpo- 
 ration was not liable, on the ground that the benefit from this service 
 of the engineer accrued solely to the individual, and not to the city in 
 its corporate capacity. Waller v. Dubuque, 69 la. 541 (1886), (29 
 N. W. Rep. 456). 
 
 Public Celehrntions. — The celebration of a holiday, when under- 
 taken by a municipal corporation exclusively for the gratuitous amuse- 
 ment and instruction of the public, under the authority of a general 
 law which is applicable to all such corporations alike, does not render 
 it liable to an action by an individual who was injured through the 
 negligence of those who have charge of the celebration. Tindley v. 
 Salem, 137 Mass. 171 (1884); and see Morrison v. Lawrence, 98 Mass. 
 219 (1867). 
 
48 LIABILITY OP MUNICIPAL COEPOEATIONS FOB TOET. 
 
 of a private nature, for their own special interest and 
 advantage, and not for the public welfare, they stand on 
 another footing. In the discharge of such duties, as a 
 matter of law, they occupy the same position as private 
 corporations or natural individuals. They appoint their 
 own officers for .the performance of these duties, and retain 
 control and supervision over them. Such officers are, 
 therefore, not public officers, but strictly the servants or 
 agents of the corporations themselves. In such cases, 
 consequently, the maxim respondeat superior has a direct 
 application, and municipal corporations are held liable for 
 the negligent or tortious acts of the officers or agents who 
 are engaged in the discharge of duties of this character, 
 while acting within the scope of their employment.^ 
 
 1 Chicago !J. Dermody, 61 111. 431 (1871); Shinkle v. Covington 
 1 Bush (Ky.), 617 (1866) ; Fennimore v. New Orleans, 20 La. An. 
 121 (1868) ; Perry v. Worcester, 6 Gray (Mass.), 544 (1856) ; Worden 
 V. New Bedford, 131 Mass. 23 (1881); Waldron v. Haverhill, 143 
 JIass. 582 (1887), (10 N. E. Rep. 481) ; Mayor, etc. of New York v. 
 Bailey, 2 Den. (N. Y.) 433 (184.5); Pittsburg v. Grier, 22 Pa. St. 54 
 (1853) ; Memphis v. Lasser, 9 Humph. (Tenn.) 757 (1849), and cases 
 cited under §§ 25, 28, post. And see Alcorn v. Philadelphia, 5 Phila. 
 (Pa.) 130 (1863); s. c. 44 Pa. St. 348 (1863), where the defendant 
 corporation was held not liable for the negligence of its surveyor, 
 though the duty which he was performing at the time was considered 
 to be a private duty. 
 
 Where a municipal corporation authorized a contractor to lay a 
 sewer in one of its streets, and in the course of the work the contrac- 
 tor made use of certain processes that were covered by patents owned 
 by the plaintiff, it was held, in an action to recover damages for the 
 inft'ingement of those patents, that since the work of laying the sewer 
 was a private one done for the benefit of the corporation, it was 
 liable in this action, just as a private person or corporation would be 
 in like circumstances. Asbertiue Tiling, etc. Co. v. Hepp, 39 Fed. 
 Rep. 324 (1889). 
 
 In Worden v. New Bedford, 131 Mass. 23 (1881), it appeared that 
 the defendant let for profit a room in its city hall to a certain associa- 
 tion, which used it for the purpose of giving an exhibition ; that the 
 sum paid for its use included the janitor's services ; that the plaintiff, 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 49 
 
 § 25. Officers and Agents performing Ministerial Duties 
 — Positive Statutory Duties. — Whenever municipal cor- 
 porations undertake the construction of any improvement 
 for their own private interest and from which they derive 
 directly or indirectly some advantage in their corporate 
 capacity, and have gone so far as to adopt the plan of such 
 improvement, the actual work of carrying that plan into 
 execution is a duty purely ministerial in character. It is 
 well settled that in the performance of such a duty they 
 occupy exactly the same position as any legal individual. 
 The officers and agents who have the work in charge act 
 directly for them, are subject to their immediate control, 
 and are in every sense their agents and servants. Mu- 
 nicipal corporations are, therefore, responsible for the neg- 
 ligence and unskilfulness of those officers and agents who 
 are engaged ia the discharge of such duties in the same 
 manner and to the same extent as a private corporation or 
 natural person would be under like circumstances. Thus, 
 they have been held liable for the negligence of those offi- 
 cers and agents who were engaged at the time in the work 
 of constructing or repairing culverts, drains, and sewers ; ^ 
 
 rightfully on the premises by invitation of the hirer, was injured 
 through the negligence of the janitor while performing his duties. 
 The court held that since the injury was due to the negligence of a 
 person who must be regarded as an agent of the corporation, in the 
 performance of a duty undertaken by the corporation for profit, it 
 was liable in this action. 
 
 ^ Ross V. Madison, 1 Ind. 281 (1848) ; Wallace v. Muscatine, 4 
 Greene (la.), 373 (1854) ; Murphy v. Lowell, 124 Mass. 564 (1878); 
 Lloyd V. Mayor, etc. of New York, 5 N. Y. 369 (1851). 
 
 In Sample v. Vicksburg, 62 Miss. 68 (1884), it appeared that the 
 defendant corporation employed an agent to close certain inlets to its 
 sewers; that he negligently closed one not included in his orders. In 
 an action to recover damages therefor, it was held that the defendant 
 was liable, on the ground that the negligent act was done while its 
 agent was engaged in a purely ministerial duty connected with its 
 sewers. 
 
 4 
 
50 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 or who were engaged at the time in constructing or repair- 
 ing streets and highways.^ 
 
 And if a duty expressly imposed upon a municipal cor- 
 poration is neglected by the officers or agents charged with 
 its performance, the corporation is bound to respond in 
 damages for such negligence. Thus, where the duty to 
 collect assessments levied to compensate property owners 
 for damages sustained by reason of the opening of new 
 streets was expressly imposed by statute upon the corpo- 
 ration, and the municipal authorities charged with its per- 
 formance failed to do it, the corporation was held liable 
 for their negligence.^ 
 
 § 26. Commissioners of 'Water-'works. — The duty of 
 constructing and maintaining water-works is not govern- 
 mental in character, though the ultimate result, of its 
 performance may be for the public good. The state in its 
 sovereign character does not impose, nor have any interest 
 in, a duty of this character. On the contrary it grows out 
 of a grant of a special franchise made for the private 
 advantage and emolument of those municipal corporations 
 which may undertake its exercise. The officers and agents 
 charged with the construction and maintenance of such 
 works stand fully in the relation of master and servant 
 to the corporations. The principle seems to be well 
 
 1 Cotes V. Davenport, 9 la. 227 (1859) ; Templin v. Iowa City, 14 la. 
 59 (1862) ; Laoour v. Mayor, etc. of New York, 3 Duer (N. Y.), 406 
 (1854) ; Daytoifw. Pease, 4 Oh. St. 80 (1854). 
 
 Where the defendant corporation employed workmen to lay gas 
 pipes in its streets, and by the negligence of one of those workmen 
 while engaged in the performance of his duty, a piece of metal flew 
 into the plaintiff's eye, gTsatly injuring his sight, it was held that the 
 corporation was liable for his negligence. Scott v. Manchester, 1 H. 
 & N. 59 (1856). 
 
 2 Clayburgh v. Chicago, 25 111. 5.35 (1881), and see Mayor, etc. of 
 New York v. Furze, 3 Hill (N. Y.), 612, 618 (1842). 
 
LIABILITY FOR THE ACTS OF OFFICEKS AND AGENTS. 51 
 
 established, therefore, that municipal corporations must 
 respond in damages for the negligence and unskilfulness 
 of their water commissioners, and of the subordinate 
 employees of such commissioners, while acting in the 
 course of their employment.^ 
 
 § 27. Trespass. — That municipal corporations may be 
 liable for a trespass committed by their officers or agents, 
 can admit of little question. ^ Whatever disagreement 
 there may be in the decisions upon this subject appears to 
 arise from the difficulty in determining the circumstances 
 under which the liability is to be enforced, rather than in 
 determining whether there is any such liability at all. 
 The cases substantially agree that municipal corporations 
 
 1 Grimes v. Keene, 52 N. H. 330, 335 (1872) ; Bailey v. Mayor, 
 etc. of New York, 3 Hill (N. Y.), 531 (1842) ; Mayor, etc. of New 
 York V. Bailey, 2 Den. (N. Y.) 483 (1845) ; Ironton v. Kelley, 38 Oh. 
 St. 50 (1882) ; Esberg Cigar Co. v. Portland, 34 Oreg. 282 (1899), 
 (55 Pac. Eep. 961) ; Harrisburg v. Saylor, 87 Pa. St. 216 (1878) ; 
 Aldrich v. Tripp, 11 R. I. 141 (1875). 
 
 In Norman v. Ince, 8 Okl. 412 (1899), (58 Pac. Eep. 632), the de- 
 fendant corporation was held to be liable for injuries done to the 
 premises of the plaintiff by the constant discharge thereon of water 
 from a water-tower built on its own land, said discharge being due to 
 the negligent construction of the tower. 
 
 ^ " There is no doubt but that an action of tort may be maintained 
 against a town or city to recover damages for a trespass committed 
 by any of its agents or officers acting under its authority, or in pur- 
 suance of directions given them, upon the property or estate of another." 
 Mr. Justice Merrick, in Hildreth v. Lowell, 11 Gray (Mass.), 345, 349 
 (1858). " The doctrine is entirely untenable that there can be no 
 municipal liability for unlawful acts done by municipal authorities to 
 the prejudice of private parties. In this respect, public corporations 
 are as distinctly legal persons as private corporations. . . . When the 
 act done is in law a corporate act, there is no ground upon reason or 
 authority for holding that if there is any legal liability at aE arising 
 out of it, the corporation may not be answerable. There is no con- 
 flict whatever in the authorities on this head." Mr. Justice Camp- 
 bell, in Sheldon v. Kalamazoo, 24 Mich. 383, 385 (1872). 
 
52 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 are not responsible for all the trespasses of their officers or 
 agents. ^ Thus, they are not liable if the acts constituting 
 the trespass were done without authority and have never 
 been ratified ; ^ or if they were done by an officer who was 
 at the time a public officer, engaged in the performance 
 of a public duty. 3 
 
 If, however, the trespass was expressly authorized by, 
 or was subsequently ratified by, the corporation by com- 
 petent authority, and the officers or agents by whom it 
 was committed were its agents or servants, and not public 
 officers, it will be liable for the wrong to the same extent 
 as a private corporation in a like state of facts.* And it 
 seems to be settled also that a municipal corporation 
 may be liable if the acts constituting the trespass were 
 committed by one of its agents or servants while acting 
 within the general scope of his official duties, and without 
 any express authorization.^ 
 
 1 But see dissenting opinion of Chief Justice Appleton, in Cum- 
 berland, etc. Canal Co. v. Portland, 62 Me. 50i (1871), where it is 
 maintained that a municipal corporation cannot be liable for trespass 
 at all. 
 
 2 Chicago V. McGraw, 75 HI. 566 (1874) ; Elliott v. Philadelphia, 
 75 Pa. St. 347 (1874). 
 
 3 Manners v. Haverhill, 135 Mass. 165 (1883) ; Clark v. Easton, 
 146 Mass. 43 (1888), (14 N. E. Rep. 795). 
 
 « Pontchartrain R. Co. v. New Orleans, 27 La. An. 162 (1875) ; 
 Small V. Danville, 51 Me. 359 (1864); Cumberland, etc. Canal Co. v. 
 Portland, 62 Me. 504 (1871) ; Woodcock v. Calais, 66 Me. 234 (1877); 
 Hildreth v. Lowell, 11 Gray (Mass.), 345 (1858) ; Sheldon v. Kalamar 
 zoo, 24 Mich. 383 (1872); Hunt v. Boonville, 65 Mo. 620 (1877). 
 Contra, Rowland v. Gallatin, 75 Mo. 134 (1881) ; Hanvey v. Rochester, 
 35 Barb. (N. Y.) 177 (1861). 
 
 In School District v. Williams, 38 Ark. 454 (1882), the defendant, 
 a quasi corporation, was held not liable for trespass in seizing the 
 plaintiff's property. 
 
 6 Quinn v. Paterson, 27 N. J. L. 35 (1858) ; Lee v. Sandy Hill, 40 
 N. Y. 442 (1869). 
 
 It has been held also that if the corporation has the power to do 
 the work in the course of which the trespass was committed, it will be 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 53 
 
 § 28. Interference -ro-ith Easements. — The same rule of 
 liability applies also where municipal corporations have, 
 by their officers or agents, interfered with the enjoyment 
 of a natural easement. If the tortious acts of their officers 
 or agents were neither originally authorized, nor subse- 
 quently ratified, nor done in the course of the performance 
 of their official duties and within the general scope of 
 their employment, the corporations are not responsible. ^ 
 But if the acts were authorized in the beginning, or were 
 ratified after they were done, municipal corporations will 
 be liable if a private person would be under the same cir- 
 cumstances.^ And it seems that if the acts were done in 
 the general course of the employment of the officers or 
 agents authorized to act on the subject in question, and 
 were done in good faith, the corporation will be liable. 
 Thus, where street commissioners, while engaged in re- 
 pairing the streets, took gravel from land owned by the 
 
 liable, even though that power Was not regularly exercised. Walling 
 V. Shreveport, 5 La. An. 660 (1850). 
 
 In Keed v. Allegheny, 79 Pa. St. 300 (1875), the defendant corpo- 
 ration was held not liable for a trespass committed by an independent 
 contractor. 
 
 Likewise a municipal corporation may be liable for deceit. In 
 Sharp V. Mayor, etc. of New York, 40 Barb. (N. Y.) 256 (1863), it 
 was held that the defendant, having power to lease a slip, could 
 authorize its agents to do it, and if they made false representations 
 in the course of the negotiations, it was responsible. The rule 
 was applicable, also, to municipal corporations that " the principal is 
 liable for the false representations of the agent made in and about 
 the matter for which he was appointed agent, not on the ground of 
 express authority, given to the agent to make the statement, but on 
 the ground that as to the particular matter for which the agent is ap- 
 pointed he stands in the place of the principal, and whatever he does 
 or says in and about that matter is the act and declaration of the 
 principal ; for which the principal is just as liable as if he had per- 
 sonally done the act or made the declaration." 
 
 1 Thayer B. Boston, 19 Pick. (Mass.) 511 (1837). 
 
 '^ See Perry v. Worcester, 6 Gray (Mass.), 544 (1856). 
 
54 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 defendant corporation, and in so doing rendered impassable 
 a way over which the plaintiff had an easement, it was 
 held that since the acts were done for the benefit of the 
 defendant in the general course oE the duties of the com- 
 missioners, who acted in good faith, they were to be 
 regarded as the agents of the corporation, even in the 
 excesses they committed, and it was therefore liable, i 
 
 § 29. The Liability for the Acts of Independent Con- 
 tractors. — The liability of municipal corporations for the 
 negligent or otherwise tortious acts of an independent con- 
 tractor employed by them is in general to be determined 
 upon exactly the same principles as the liability of a pri- 
 vate person in the same state of facts. The rule seems to 
 be fully established that if such corporations make a con- 
 tract for a completed work, to be paid for as such, leaving 
 to the discretion of the contractor the manner in which 
 the labor shall be performed and the selection and control 
 of the men to be employed, the relation of principal and 
 agent, or master and servant, is not created between them, 
 and therefore the corporations are not responsible for the 
 negligent doings or wrong doings of such contractor or of 
 his employees.^ 
 
 This rule applies even though, by the terms of the con- 
 tract, the work is to be done " under the direction and to 
 the entire satisfaction " of certain specified officers of the 
 corporation. Such a provision, it is held, gives to the 
 
 1 Sprague v. Tripp, 13 R. I. 38 (1880). In that case the court 
 says, however, that the question is not free from difficulty, but that 
 the conclusion there reached is on the whole sound. 
 
 2 East St. Louis v. Giblin, 3 111. App. 219 (1878) ; Pack v. Mayor, 
 etc. of New York, 8 N. Y. 222 (1853) ; Kelly v. Same, 11 N. Y. 432 
 (1854) ; Treadwell v. Same, 1 Daly (N. Y.), 123 (1861) ; Herrington 
 V. Lansingburg, 36 Hun (N. Y.), 598 (1885) ; Painter v. Pittsburg, 
 46 Pa. St. 213 (1863) ; Reed v. Allegheny, 79 Pa. St. 300 (1875) ; 
 Harper v. Milwaukee, 30 Wis. 365 (1872). 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 55 
 
 corporation only the right to prescribe what is to be done, 
 and not the right to determine how it is to be done nor 
 the right to select or control the men employed on the 
 work, without which rights the relation of principal and 
 agent, or of master and servant, cannot arise.* 
 
 Nor does it alter this rule of immunity that the con- 
 tractor was notoriously incompetent and unstilful, unless 
 it further appears that the corporation, at the time when 
 it employed him, knew of such incompetency and un- 
 skilfulness, or that it was guilty of negligence in making 
 the contract with him.^ 
 
 If, however, by the terms of the contract, the munici- 
 pality retains control over the manner of doing the work 
 and the men employed by the contractor, the relation of 
 master and servant arises between them, and it will be 
 liable for his tortious acts and for those of his employees.^ 
 The maxim respondeat superior applies in such cases. 
 And, furthermore, when the injury complained of results, 
 not from any negligence or wrong doing on the part of 
 the contractor or of his employees, but directly from the 
 work required by the contract to be done, the corporation 
 will, it seems, be responsible for such injury. Thus, where 
 a city employed a contractor to raise the grade of a certain 
 street, and the latter, in order to fulfil his contract, was 
 required to, and did, dump a large quantity of gravel upon 
 the plaintiff's land, it was held that the city was liable for 
 the damage so done, although the acts causing the dam- 
 age were done by a person engaged in an independent 
 employment.* 
 
 1 Barry v. St. Louis, 17 Mo. 121 (1852) ; Kelly v. Mayor, etc. of 
 New York, 11 N. Y. 432 (1854). 
 
 2 Kelley v. Mayor, etc. of New York, 4 E. D. Smith (N. Y.), 291 
 (1855). 
 
 = Chicago V. Jotiey, 60 HI. 383 (1871) ; Chicago v. Dermody, 61 
 111. 431 (1871). But see Erie v. Caulkins, 85 Pa. St. 247 (1877). 
 * BroadweU v. Kansas City, 75 Mo. 213 (1881) ; Pearson v. Zable, 
 
56 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 Moreover, the employment of an independent contractor 
 to construct a public improvement in their streets does 
 not in any degree relieve municipal corporations from the 
 duty of keeping such streets in a safe condition for travel. 
 They will be liable, therefore, for any damages due to 
 defects therein, even though such defects were occasioned 
 by the negligence of the contractor or of his employees. ^ 
 
 § 30. The Fellow Servant Doctrine. — The defence of 
 common employment is open to municipal corporations, as 
 to any other employer, whenever it appears that both the 
 negligent employee and the injured employee were their 
 servants and were engaged in a common employment. 
 Thus, where the plaintiff, a workman, was injured while" 
 engaged in laying water pipes, through the negligence of 
 the superintendent in charge of the work, it was held that 
 the plaintiff and the superintendent were fellow servants, 
 and the defendant city was not, therefore, liable in this 
 action.^ So where the plaintiif, an employee of the city, 
 working under the orders of the superintendent of a ceme- 
 tery, was injured by the negligence of the latter, the court 
 
 78 Ky. 170, 174 (1879) ; Sewall v. St. Paul, 20 Minn. 511, 523 
 (1874). 
 
 In Vanderslice v. Philadelphia, 103 Pa. St. 102, 110 (1883), it was 
 held that the fact that the defendant city had employed a contractor 
 to remove a nuisance, did not deprive the plaintiff from recovering 
 for the damages occasioned by the continuance of the injury after 
 the employment of such contractor and until it was abated. " There 
 is some difference between the case where the contractor's negligence 
 causes injury, and the case where a contractor is employed to re- 
 move a nuisance which continually increases the extent of an injury 
 until abated. An independent contractor is liable for his own wrong- 
 ful acts which damage another ; but not for the direct consequences 
 of the negligence of his employer." 
 
 1 Logansport v. Dick, 70 Ind. 65 (1880) ; Hawxhurst v. Mayor, etc. 
 of New York, 43 Hun (N". Y.), 588 (1887). 
 
 2 McDermott v. Boston, 133 Mass. 349 (1882) ; Flynn v. Salem, 134 
 Mass. 351 (1883). 
 
LIABILITY FOR THE ACTS OP OFFICERS AND AGENTS. 57 
 
 held that the fellow servant doctrine applied and the 
 defendant city was not liable.^ 
 
 But if the injured employee was at the time of the ac- 
 cident a public officer, engaged in a public service, and 
 therefore not the agent or servant of the defendant cor- 
 poration, it cannot avail itself of the defence of common 
 employment.2 This is doubly true where the injured 
 agent or servant and the negligent agent or servant were 
 engaged in different departments of corporate activity. 
 Thus, where the plaintiff, a fireman, was injured while 
 engaged in the performance of his duty, by reason of an 
 obstruction in the highway which the officers and agents 
 of the corporation who were intrusted with the care of the 
 highways had neglected to remove, it was held that the 
 defendant city could not shield itself behind the defence 
 afforded by the fellow servant doctrine.^ The decision in 
 that case was placed on the double ground that the mem- 
 bers of the fire department and the members of the street 
 department were not engaged in a common service; and 
 that the injured member of the fire department was 
 engaged in a public service, and the relation of master and 
 servant did not for that reason exist between the corpora- 
 tion and himself. 
 
 1 Toledo V. Cone, 41 Oh. St. 149 (1884). 
 
 2 See Wild v. Paterson, 47 N. J. L. 406 (1885), (1 Atl. Rep. 490). 
 « Coots V. Detroit, 75 Mich. 628 (1889), (43 N. W. Kep. 17). For 
 
 similar cases where the same result was reached, see Turner v. Indian- 
 apolis, 96 Ind. 51, 54 (1884); Palmer v. PortsmQuth, 43 N. H. 265 
 (1861). 
 
 In a dissenting opinion in the case of Coots v. Detroit, 75 Mich. 
 628 (1889), (43 N. W. Rep. 17), Mr. Justice Campbell holds that each 
 department of corporate activity and the members of each, while act- 
 ing in the performance of their duty, are working in one common work. 
 
 Licensees. Ordinarily a municipal corporation is not liable for the 
 tortious acts of its licensees, unless it can be shown that they were 
 authorized to perform an act dangerous in itself. Wheeler v. Ply- 
 mouth, 116 Ind. 158, 159 {1888), (18 N. E. Rep. 532); and see § m,post. 
 
58 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 CHAPTER IV. 
 
 THE LIABILITY AS A PROPERTY OWNER. 
 
 § 31. Municipal Corporations as Property OTvners. — In 
 
 dealing with the subject relating to the liability of mu- 
 nicipal corporations growing out of their ownership of prop- 
 erty, as in dealing with other subjects relating to public 
 corporations, the fact that they have a double character 
 must be kept distinctly In mind. For whatever differ- 
 ences there are between their liabilities as property owners 
 and those of private corporations, or of private persons who 
 own and deal with property, are directly due to this fact; 
 and from it arise whatever peculiar immunities they 
 enjoy. The property which they hold and use purely in 
 their character as public governmental agencies stands in 
 a distinct class, and to it the ordinary liabilities of own- 
 ership do not attach. In any particular case, then, the 
 first consideration is: was the property in question held 
 and used at the time of the accident for purely public and 
 governmental purposes, or simply for private and munici- 
 pal purposes. It may fairly be stated as a broad general 
 proposition that according as this consideration is deter- 
 mined, the immunity or the liability of the corporation in 
 the case in hand will be fixed. 
 
 § 32. The holding of Property in their Public Capacity. 
 — The general rule that municipal corporations are not 
 liable for negligent or tortious acts done in the perform- 
 ance of those public, governmental duties that are imposed 
 upon them all alike without their assent, extends also to 
 
THE LIABILITY AS A PROPERTY OWNER. 59 
 
 their negligent and tortious acts done in the management 
 of that property which they hold and use for purely public 
 purposes. This extension of the rule is based upon the 
 consideration that they themselves derive from such prop- 
 erty no gain or profit in their private capacity, but hold 
 and deal with it for the direct and immediate benefit of 
 the public, using it simply as a means for the better per- 
 formance of the duties that the legislature has imposed 
 upon them for the common good.' 
 
 § 33. The holding of Property in their Private Capacity 
 — Sic utere tuo non laedas alieno. — Municipal corpora- 
 tions as owners and occupiers of lands and buildings in 
 their private character are regarded in the same light as 
 private owners and occupiers. That familiar injunction 
 which the common law addresses to proprietors of real 
 estate, "so use your own as not to injure another," applies 
 
 1 Hill V. Boston, 122 Mass. 344 (1877) ; Eastman v. Meredith, 36 
 N. H. 284 (1858). 
 
 In Curran v. Boston, 151 Mass. 505 (1890), (24 N. E. Rep. 781), it 
 appeared that the plaintiff, an inmate of the defendant's house of 
 industry, was injured by reason of the negligence of those agents who 
 had charge of the affairs of said institution. It was held that the 
 " action of the city in establishing the workhouse was purely for the 
 public service, and for the general good in providing for the care and 
 support of offenders for whose maintenance it was responsible.'' 
 The fact that the city acted under a permissive statute in establishing 
 this institution made no difference, since it derived no corporate 
 advantage or pecuniary profit from the ownership or management of 
 the property. Nor did the fact that some revenue was derived from 
 the labor of the inmates alter the case. Though the statute re- 
 quired the inmates to be kept at work, the institution was not con- 
 ducted with a view to pecuniary profit; whatever of that there was, 
 was purely incidental. 
 
 In Hill V. Boston, 122 Mass. 344 (1877), the defendant city was held 
 not liable for injuries suffered by a child while attending a public 
 school in a schoolhouse provided by it in obedience to general laws, 
 said injuries resulting from the unsafe condition of the staircase in 
 the schoolhouse, over which the child was attempting to pass. 
 
60 LIABILITY OF MUNICIPAL COEPOEATIONS FOE TOET. 
 
 in the same manner and to the same extent to them, so far 
 as they hold and use property for their own private advan- 
 tage and emolument, as to any individual owner. In short, 
 as to property so held and used by tjiem, they stand on a 
 footing of strict equality with private owners; neither 
 of them is a privileged owner, but both must fulfil all those 
 duties which grow out of, and attach to, the private 
 ownership of property. ^ The rule is well settled, there- 
 fore, that " where a municipal corporation holds 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. " ^ 
 
 1 See Brower v. Mayor, etc. of New York, 3 Barb. (N. Y.) 254 
 (1848). In this case it was held that the defendant city had no more 
 right to erect and maintain a nuisance on its lands, although no pri- 
 vate gain was derived therefrom, than a private person. 
 
 2 Oliver v. Worcester, 102 Mass. 489 (1869) ; Wilson v. New Bed- 
 ford, 108 Mass. 261 (1871) ; Hill v. Boston, 122 Mass. 344, 359 (1877) ; 
 Shuter u. Philadelphia, 3 Phila. (Pa). 228 (1858), and cases cited in 
 following sections. 
 
 In Cowley u. Sunderland, 6 H. & N. 565 (1861), it appeared that 
 the defendant corporation, acting under the provisions of a statute, 
 had erected a washhouse ; that the plaintiff, who had paid for the 
 privilege of washing there, was injured by reason of the negligent 
 construction of a drying machine which she was using. It was held 
 that since the defendant had availed itself of the power given by the 
 statute to erect such houses, it was bound to use ordinary care and 
 diligence in its management, and to provide machines reasonably safe 
 for use, and was therefore liable in this action. 
 
 Premises dangerous to Children. — While as a general rule the law 
 does not require a city which owns property in its private capacity to 
 keep it in a safe condition for the benefit of trespassers, or of those 
 who come upon it without invitation express or implied, and who 
 merely seek their own pleasure or the gratification of their own curi- 
 osity, an exception to this rule is made in some jurisdictions in favor 
 of children of tender years. Accordingly in those jurisdictions it is 
 
THE LIABILITY AS A PROPERTY OWNER. 61 
 
 § 34. Municipal Corporations are not Insurers of the 
 Condition of their Property. — It follows from what was 
 said in the preceding section that municipal corporations 
 do not insure their citizens against damage from property- 
 owned and used by them in their private capacity. They 
 are bound simply to exercise reasonable care and diligence 
 in the construction and maintenance of such property. If 
 they have done this, and have been guilty of no miscon- 
 duct, they have fulfilled their whole duty as property 
 owners. Their responsibility as such owners can, there- 
 fore, be predicated only upon some negligence or miscon- 
 duct on their part.^ 
 
 § 35. The Liability as Owners of City or Town Halls. — 
 Municipal corporations are not liable at common law to 
 private citizens for injuries caused by any defect or want 
 of repair in a city or town hall owned by them, or caused 
 by the negligence of their agents in the management of 
 such buildings, while they are using same solely for public 
 purposes. 2 This is, of course, simply another application 
 of the rule that they are not liable for the omission or 
 neglect to perform those public duties that are imposed 
 
 held that a municipal corporation is liable for injuries suffered by a 
 child of tender years while playing upon its premises, if such prem- 
 ises were left unguarded and in such a condition as to be an attraction 
 to such a child, and to appeal to his childish curiosity and instincts. 
 Pekin u. McMahon, 154 111. 141 (1895), (39 N. E. Rep. 484), and cases 
 cited. But the corporation would not be liable in such a case if the 
 attraction, namely, a body of water, was wholly upon private property 
 and not near to the highway, even though such attraction was created 
 by its negligence. Omaha v. Bowman, 52 Neb. 293 (1897), (72 N. W. 
 Rep. 316) ; if, however, the body of water extended into the street 
 and the child entered it therefrom, the city would be liable. Bow- 
 man V. Omaha, 59 Neb. 84 (1899), (80 N. W. Rep. 259). 
 
 1 Flori V. St. Louis, 69 Mo. 341 (1879) ; Ring v. Cohoes, 77 N. Y. 
 83, 89 (1879) ; Jenney v. Brooklyn, 120 N. Y. 164 (1890), (24 N. E. 
 Rep. 274). 
 
 2 Eastman v. Meredith, 36 N. H. 284 (1858). 
 
62 LIABILITY OP MDNICIPAL CORPORATIONS FOR TORT. 
 
 upon all such corporations alike without their assent, and 
 from the performance of which they derive no gain or 
 advantage in their private capacity. 
 
 But while they are engaged in the erection of such 
 buildings, they are bound to exercise the same degree of 
 care and skill as a private person engaged in a like under- 
 taking. If, therefore, a- person is injured by reason of the 
 negligence or unskilfulness of those officers or agents who 
 have charge of the work, the corporation will be liable. 
 Thus, where the plaintiff, a workman in the employ of 
 the contractor, was injured by the fall of the roof of a city 
 hall which was in process of construction for the defend- 
 ant corporation, and it appeared that the roof fell because 
 of insufficient support, due to a departure from the plans 
 adopted, which the defendant's officers who had charge of 
 the work negligently permitted, it was held that the city 
 was liable for the injuries so sustained.^ 
 
 And, furthermore, if after such buildings are con- 
 structed such corporation does not devote them exclu- 
 sively to municipal purposes, but lets them, or a part of 
 them, for its own advantage and emolument, it is liable 
 for any injuries due to the defective condition or the 
 negligent management of them by the municipal agents. 
 In all such cases it is dealing with its city hall, not 
 in the discharge of a public duty, but for its own profit 
 in a private enterprise, just as any private owner might, 
 and is therefore liable in the same way and to the same 
 extent as such private owner would be.^ Thus where it 
 appeared that the defendant city let a room in its city hall 
 to an association for an exhibition ; that the sum paid as 
 
 1 Chicago V. Dermody, 61 El. 431 (1871). Accord : MoCaugliey v. 
 Tripp, 12 E. I. 449 (1879). 
 
 2 Oliver u. Worcester, 102 Mass. 489 (1869) ; Worden v. New Bed- 
 ford, 131 Mass. 23 (1881). 
 
THE LIABILITY AS A PROPERTY OWNER. 63 
 
 rent therefor included the janitor's services ; and that the 
 plaintiff, who was rightfully on the premises by invitation 
 of the hirers, was injured by falling through a trap door 
 negligently left open by the janitor while performing his 
 duties, it was held that, since the defendant was using that 
 part of its city hall for private gain, it was responsible 
 for this injury.^ 
 
 § 36. The Liability as Owners of Market Places. — 
 When municipal corporations enter upon the business of 
 owning and letting for revenue stalls in a market, they 
 assume exactly the same position as any owner of such 
 property. For an enterprise of this nature is obviously 
 private in character, conducted solely for their own pri- 
 vate gain, and in which the public at large has no interest. 
 They are liable, therefore, to the same extent as any 
 landlord for injuries caused by any defects in such prop- 
 erty due to negligence on their part.'-^ 
 
 This rule does not, of course, require municipal cor- 
 porations, in the construction and maintenance of such 
 
 1 Worden v. New Bedford, 131 Mass. 23 (1881). 
 
 In that case it was also argued that the city had no power to let its 
 public buildings for private uses, and therefore was not liable. But 
 the court held that this ground was not tenable. " The city could not 
 erect builings for business or speculative purposes, but having a city 
 hall, built in good faith and used for municipal purposes, it has the 
 right to allow it to be used incidentally for other purposes, either 
 gratuitously or for a compensation. Such a use is within its legal 
 authority, and is common in most of our cities and towns." At page 
 24. On this point see also French v. Quincy, 3 Allen (Mass.), 9 
 (1861). 
 
 When the plaintiff was injured by stepping into a cellar-way of a 
 building the upper story of which was under the control of the de- 
 fendant corporation, but not the lower story or basement, it was held 
 that the defendant was not liable as owner. El Paso v. Causey, 1 111. 
 App. 581 (1877). 
 
 2 Savannah v. CuUens, 38 Ga. 334, 346 (1868) ; Lax v. Darlington, 
 L. K. 5 Ex. Div. 28 (1879). 
 
64 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 property, to anticipate and guard against unusual and un- 
 precedented occurrences. Thus, where the defendant's 
 market-house was blown down during a wind-storm of 
 unprecedented force and violence, and the plaintiff was 
 injured in bis person by its fall, it was held that the city 
 was not liable, because there was no obligation resting 
 upon it, in the construction and maintenance of this 
 market-house, to anticipate such wind-storms ; the utmost 
 requirement that could be exacted would be that it should 
 keep the building in such condition as would enable it to 
 withstand the ordinary force and power of ordinary and 
 usual wind-storms.^ 
 
 § 37. The Liability as Owners of Wharves, Piers, or 
 Docks. — When municipal corporations own and have in 
 possession wharves, piers, or docks, over which they exer- 
 cise exclusive control, and for the use of which they exact 
 tolls, they are engaged in a private business undertaking. 
 The duties involved in the management of such property 
 by them are not in any proper sense public or govern- 
 mental, but are private, and performed for their own pri- 
 vate gain and emolument. The law, therefore, exacts 
 from them as such owners just what it does from a private 
 owner under like circumstances. They are bound to exer- 
 cise reasonable care and skill in providing fastenings 
 sufficient in number and strength to secure boats while 
 lying alongside ; ^ in providing proper string-pieces along 
 
 1 Flori V. St. Louis, 69 Mo. 341 (1879). 
 
 2 Shinkle v. Covington, 1 Bush (Ky.), 617 (1866); Willey v. 
 Allegheny, 118 Pa. St. 490 (1888), (12 Atl. Kep. 453). In this last 
 case the court says, at page 500, that reasonable care on the part of a 
 municipal corporation under the circumstances requires " the use of 
 all the appliances and precautions that a diligent man owning the 
 rafts and owning the wharf would deem it proper to employ in the 
 preservation of his own property from the perils of the river." 
 
 In Jackson v. Allegheny, 41 Fed. Rep. 886 (1890), it appeared that 
 the plaintiff's boats were injured by reason of the defendant's failure to 
 
THE LIABILITY AS A PROPERTY OWNER. 65 
 
 the sides ;^ to anticipate and protect boats from the 
 ordinary floods that occur at the particular place ; ^ to keep 
 the adjacent water in which boats lie moored free from 
 obstructions.^ Hence the general rule is that municipal 
 corporations are liable to any person injured by reason of 
 the defective construction or want of repair of such prop- 
 erty due to negligence on their part.^ 
 
 provide sufficient fastenings ; that the plaintifi had the exclusive occu- 
 pancy of that portion of the wharf where his boats were tied up, pay- 
 ing a stipulated monthly sum therefor. It was held that the defendant 
 was not liable for the damage, for the plaintiff was a lessee, and as such 
 not entitled to that degree of care due to navigators who used the 
 ■wharf in the ordinary way. 
 
 1 Kennedy v. Mayor, etc. of New York, 73 N. T. 365 (1878). In this 
 case it appeared that while the plaintiff was backing on to the wharf, 
 his horse suddenly became unmanageable and backed into the river ; 
 that the accident would not have happened but for the absence of a 
 proper string-piece. The court held that the city's duty was not 
 simply to furnish protection to animals that were docile and obedi- 
 ent. " The shying of a horse, his backing or turning in consequence 
 of a sudden fright or other cause, so as to be for a moment beyond 
 the control of the one having him in charge, are among the most com- 
 mon occurrences." The city was bound to guard against such occur- 
 rences, and having failed to so do, was liable for the plaintiff's loss, 
 although his horse was not at the moment obedient to his will. 
 
 2 Shinkle v. Covington, 1 Bush (Ky.), 617 (1866). 
 
 » Memphis v. Kimbrough, 12 Heisk. (Tenn.) 133 (1873); Peters- 
 burg V. Applegarth, 28 Gratt. (Va.) 321 (1877). In this last case it 
 appeared that the city did not, in the particular instance, receive any 
 wharfage. The court held that this fact did not relieve it from liabil- 
 ity. " It is sufficient that the city was entitled to make the charge." 
 
 ^ Fennimore v. New Orleans, 20 La. An. 124 (1868) ; McGuinesa v. 
 Mayor, etc. of New York, 52 How. Pr. (N. Y.) 450 (1877) ; Pittsburg 
 V. Grier, 22 Pa. St. 54 (1853) ; Philadelphia, etc. R. Co. v. Mayor, etc. 
 of New York, 38 Fed. Rep. 159 (1889) ; Mersey Docks Trustees v. 
 Gibbs, 11 H. L. Cas. 686 (1865). 
 
 Where a city leases its wharf, it is still liable for damages due to 
 defects existing at the time of the letting, Moody v. Mayor, etc. of 
 New York, 43 Barb. (N. Y.), 282 (1865) ; but, as a general rule, not for 
 damages due to defects caused by the acts of its lessee, of which it has 
 no notice, Seaman v. Mayor, etc. of New York, SO N. Y. 239 (1880) ; 
 
 5 
 
66 LIABILITY OP MUNICIPAL COHPOEATIONS FOR TORT. 
 
 § 38. The Liability as Owners of Water-works. — The 
 owning of water-works and the furnishing of water by 
 municipal corporations to their inhabitants for profit is 
 liliewise an undertaking of a purely private nature. As 
 owners of such property, therefore, the same duties are 
 exacted from them, and the same liabilities imposed upon 
 them, as in the case of private corporations or individu- 
 als who are engaged in a similar enterprise. They are 
 bound thus to exercise due care and skill in construct- 
 ing and maintaining their reservoirs ^ and the entire 
 
 nor for damages due to defects occasioned by its lessee's failure to 
 repair, unless the lease simply gave the right to collect wharfage and 
 nothing more, Taylor v. Mayor, etc. of New York, 4 E. D. Smith 
 (N. Y.), 559 (1855). 
 
 It has been held that if a person using a wharf knows that it is un- 
 safe, and yet with that knowledge uses it and sustains loss, he is guilty 
 of contributory negligence, and cannot recover damages for his loss. 
 Clancy v. Byrne, 58 Barb. (N. Y.) 449 (1871). In Pittsburg u. Grier, 
 22 Pa. St. 54, 68 (1853), the court says on this point: " If we assume 
 that both parties had equal opportunities of seeing and understanding 
 the danger, they were not bound to equal degrees of vigilance. The 
 city was held to the utmost care of the wharf; the owners of the boat 
 only to that common prudence which would keep them clear of a 
 manifest peril." 
 
 In New York, etc. Co. v. Brooklyn, 8 Hun (N. Y.), 37 (1876), it 
 appeared that the duty to repair the wharf was imposed by special 
 statute upon the common council and not upon the city. It was held 
 that the city was not liable for the acts or omissions of the common 
 council in respect to this duty. 
 
 1 Bailey v. Mayor, etc. of New York, 3 Hill (N. Y.), 531 (1842); 
 s. c. 2 Den. (N. Y.) 433 (1845). In the latter case the court says, at 
 page 440 : " The degree of care and foresight which it is necessary to 
 use, in cases of this description, must always be in proportion to the 
 nature and magnitude of the injury that will be likely to result from 
 the occurrence which is to be anticipated and guarded against. And 
 it should be that care and prudence which a discreet and cautious in- 
 dividual would or ought to use if the whole risk and loss were to be 
 bis own exclusively. Here the probable, if not the necessary, con- 
 sequence of the carrying off of the city dam, by a flood, would be not 
 only to sweep away the buildings and erections of all the owners of 
 
THE LIABILITY AS A PROPERTY OWNER. 67 
 
 apparatus by which the water is distributed.^ But they 
 
 are not insurers of the safe condition of such property, and 
 
 consequently are not liable for any injuries that could not 
 
 have been prevented by the exercise of due care and 
 
 vigilance. 2 
 
 property upon the Croton below such dam, but also to endanger the 
 lives of such owners and of then- families. The dam should, ■ there- 
 fore, have been constructed in such a manner as to resist such extraor- 
 dinary floods as might have been reasonably expected occasionally to 
 occur." 
 
 1 Hand v. Brookline, 126 Mass. 324 (1879) ; McAvoy v. Mayor, 
 etc. of New York, 54 How. Pr. (N. Y.) 245 (1877) ; Wilkins c. Rut- 
 land, 61 Vt. 336 (1889), (17 Atl. Rep. 735). 
 
 This liability does not, of course, extend to damages occasioned by 
 defects in the lateral service pipes, which are inserted in the main 
 street pipes by, and are owned and controlled by, individual property 
 owners. Terry v. Mayor, etc. of New York, 8 Bosw. (N. Y.) 504 
 (1861), 
 
 In Aldrich v. Tripp, 11 R. I. 141 (1875), the defendant city was 
 held liable for the negligence of its agents in managing a hydrant 
 connected with its water-works, in consequence of which the plaintiff's 
 horse became frightened, ran away, and was injured. 
 
 Where it appeared that the defendant's servants, while engaged in 
 constructing a sewer, negligently left exposed a water pipe which 
 connected with the plaintiff's greenhouse; that in consequence of this 
 exposure the water in the pipe froze, thus depriving the plaintiff of 
 water for heating his greenhouse and for use on his plants, it was 
 held that the defendant was liable for the damage so occasioned. 
 Stock V. Boston, 149 Mass. 410 (1889), (21 N. E. Rep. 871). 
 
 For a case where the defendant city was held liable for negligence 
 in the management of water furnished by it for the purpose of irri- 
 gation, see Levy v. Salt Lake City, 3 Utah, 63 (1881), (1 Pac. 
 Rep. 160). 
 
 In Wilson v. New Bedford, 108 Mass. 261 (1871), it appeared that 
 the defendant had constructed a reservoir near the plaintiff's prem- 
 ises and had accumulated water therein, which percolated through 
 the soil, to the injury of the plaintiff's premises. The court held that 
 since the city had collected a large body of water on its premises for 
 purposes of its own, thereby obstructing the natural course of the 
 water and causing it to percolate artificially to the plaintiff's prem- 
 ises, it was liable for the damage so done. 
 
 2 Moore v. Los Angeles, 72 Cal. 287 (1887), (13 Pac. Rep. 855); 
 
68 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 Cases of this class, where municipal corporations have 
 been held liable for damages due to the defective condition 
 of water-works owned and managed by them for profit, 
 are to be distinguished, of course, from those cases where 
 a plaintiff is attempting to recover damages for property- 
 destroyed by fire through the failure of the municipal 
 authorities to keep the water-works in a proper condition. 
 In the latter class of cases the common law imposes no 
 liability upon public corporations, because in furnishing 
 water-works for the protection of property from fire they 
 are engaged in the exercise of a public, governmental 
 function, from which they derive no advantage in their 
 private capacity. And the fact that they also furnish 
 water from the same works to private citizens for profit 
 does not alter this result.^ 
 
 § 39. The Liability as Owners of Gas-works. — When 
 municipal corporations become owners of gas-works and 
 engage in supplying gas to their inhabitants for profit, 
 they undertake a private business enterprise, and of course 
 become subject to all the liabilities which usually attach 
 to an enterpise of that character. ^ As was said by the 
 
 King V. Cohoes, 77 N. Y. 83 (1879) ; Jenney v. Brooklyn, 120 N. Y. 
 164 (1890), (24 N. E. Rep. 274). 
 
 In Danaher v. BrooHyii, 119 N. Y. 241 (1890), (23 N. E. Eep. 745), 
 it was held that the defendant city was not liable for injuries caused 
 by the drinking of impure water from a free public well owned by it, 
 where it did not appear either that there was a failure on its part to 
 keep the well properly cleaned out, or that there was notice to it that 
 the water therein had become impure, and where it did appear that 
 there were no circumstances to arouse a suspicion as to the purity of 
 the water, and that there was a sufficient supply of pure water fur- 
 nished from other sources for the use of its inhabitants. This decision 
 is placed upon the ground that its liability for the purity of the water 
 furnished rested entirely upon negligence, and the facts disclosed none. 
 
 1 Mendel v. Wheeling, 28 W. Va. 233 (1886), and cases cited on 
 page 14, note 1. 
 
 2 Shuter v. Philadelphia, 3 Phila. (Pa.) 228 (1858), where the de- 
 
THE LIABILITY AS A PROPERTY OWNER. 69 
 
 court in a Pennsylvania case : ^ " The supply of gaslight is 
 no more a duty of sovereignty than the supply of water. 
 Both these objects may be accomplished through the 
 agency of individuals or private corporations. ... If this 
 power is granted to a borough or a city, it is a special 
 private franchise, made as well for the private emolument 
 and advantage of the city as for the public good. The 
 whole investment is the private property of the city, as 
 much so as the lands and houses belonging to it. " Hence 
 a city, while engaged in supplying gas to its citizens, 
 stands upon the same footing as would any individual 
 or private corporation engaged in a similar enterprise. 
 
 fendant city was held liable for injuries done to the plaintiff's .well by 
 the construction of a gas reservoir on its own premises, even though 
 it appeared that its agents had exercised due care and skill in doing 
 the work. Scott v. Manchester, 1 H. & N. 59 (1856), where the city 
 was held liable to a plaintiff who was injured by the negligence of a 
 workman employed by the defendant, and engaged at the time of the 
 accident in the work of laying gas pipes. 
 
 1 Western, etc. Society v. Philadelphia, 31 Pa. St. 175, 183 (1858). 
 
70 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 CHAPTER V. 
 
 THE LIABILITY RELATIVE TO BRIDGES. 
 
 § 40. The Source of the Liability. — By the Common law 
 of England, which was embodied in the statute 22 Hen. 
 VIII. c. 5, and the subsequent bridge acts, counties were 
 liable for the repair of public bridges and the approaches 
 thereto.^ This rule has, however, met with little approval 
 from the courts of this country, and has become a part of 
 its common law only to a very limited extent, if at all.^ 
 In America the liability of public corporations relative 
 to bridges, as that relative to the highway of which they 
 form a part, is either imposed specifically by statute,^ or 
 arises out of the fact that the legislature has committed 
 to them the exclusive care and control of the bridges 
 within their territory, and has placed at their disposal 
 the means to keep them in a safe condition.* 
 
 1 The King v. The West Riding of York, 7 East, 588 (180()). 
 
 2 Hill V. Livingston County, 12 N. Y. 52 (1854); Tinkham v. 
 Stockbridge, 64 Vt. 480 (1892), (24 Atl. Rep. 761); Washer v. Bullitt 
 County, 110 U. S, 558, 564 (1883), (4 S. Ct. Rep. 249). 
 
 8 Whitman v. Groveland, 131 Mass. 553 (1881); Heigel v. Wichita 
 County, 84 Tex. 392 (1892), (19 S. W. Rep. 562) ; Tyler v. Williston, 
 62 Vt. 269 (1890), (20 Atl. Rep. 304). 
 
 4 Howard County v. Legg, 93 Ind. 523 (1883) ; Soper v. Henry 
 County, 26 la. 264 (1868) ; Shartle i>. Minneapolis, 17 Minn. 308 
 (1871) ; Nebraska City v. Campbell, 2 Black (U. S ), 590 (1862). 
 
 In Pennsylvania and Iowa, counties are held liable for damages 
 due to defects in county bridges. Humphreys v. Armstrong County, 
 56 Pa. St. 204 (1868); Westfield y. Tioga County, 150 Pa. St. 152 
 (1892), (24 Atl. Rep. 700) ; Wilson v. Jefferson County, 13 la. 181 
 
THE LIABILITY RELATIVE TO BRIDGES. 71 
 
 § 41. For ivhat Bridges Municipal Corporations are 
 liable. — In order to fasten responsibility for injuries re- 
 sulting from the defective condition of a bridge upon a 
 municipal corporation, it must be made to appear that the 
 bridge in question was one which the corporation was 
 bound to repair.^ To satisfy this burden, it must be 
 shown either that the bridge was one which the corpora- 
 tion had itself constructed and opened for public travel, or 
 that it was one which, though constructed and opened to 
 the public by third persons, the corporation had duly taken 
 under its control. ^ It has been held, furthermore, that it 
 should appear that the bridge in question was one which 
 the corporation had authority to build, since a municipal 
 corporation is not responsible for the unsafe condition of a 
 bridge which its officers had no authority to construct.^ 
 
 In those states where counties are held liable for in- 
 juries due to the defective condition of county bridges, the 
 plaintiff must show that the structure where the accident 
 
 (1862) ; Huff v. Poweshiek County, 60 la. 529 (1883), (15 N. W. Rep. 
 418). This was also the rule in Indiana. House v. Board of Com- 
 toissioners, 60 Ind. 580 (1878) ; Bonebrake v. Huntington County, 
 141 Ind. 62 (1894), (40 N. E. Rep. 141). This doctrine has, how- 
 ever, been overruled by the Indiana court on the ground that counties 
 are mere political divisions of the state, and as such are not liable to 
 an action by a private individual. Jasper County v. Allman, 142 Ind. 
 573 (1895), 42 N. E. Rep. 206 ; Johnson County v. Hemphill, 14 Ind. 
 App. 219 (1895), (42 N. E. Rep. 760). 
 
 1 Clark County v. Brod, 3 Ind. App. 585 (1891), (29 N. E. Rep. 
 430) ; Shelby County v. Blair, 8 Ind. App. 574 (1893), (36 N. E. Rep. 
 216). In the latter case the court says, at page 580: " In an action 
 against a county to recover for injuries received on account of a de- 
 fective bridge, the facts alleged in the complaint, in order to be suf- 
 ficient to withstand a demurrer, must show a duty resting upon the 
 county and a breach of such duty." 
 
 2 Joliet V. Verley, 35 III. 58 (1864) ; Howard County v. Legg, 93 
 Ind. 523, 528 (1883). 
 
 8 Shelby County v. Deprez, 87 Ind. 509 (1882) ; Albany v. Cunliff, 
 2 N. Y. 165 (1849). 
 
72 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 happened comes within the definition of a county bridge, i 
 If it does, what its size may be, and who paid the cost of 
 its construction, are not material questions, so far as the 
 liability of the corporation is concerned. ^ 
 
 § 42. What constitutes a Bridge — Approaches. — A 
 bridge does not consist merely of that structure of wood 
 or iron, together with its abutments, which spans the 
 stream. It also includes necessarily the approaches 
 thereto, " The main structure, as it is called, being that 
 part which spans the river, would be incomplete as a 
 bridge without the so-called approaches. It would be 
 utterly useless as a bridge, because totally inaccessible 
 without the approaches, which are in fact a prolongation 
 of the bridge, to enable persons travelling on the highway 
 to cross the river on the bridge. " ^ 
 
 Municipal corporations are, therefore, as much bound to 
 keep the approaches to a bridge in a safe condition for 
 ordinary travel as the main structure itself, and are 
 accordingly liable for any damages due to a defect or 
 want of repair therein.* 
 
 * Chandler v. Fremont County, 42 la. 58 (1875). In that case 
 Chief Justice Miller defined county bridges as follows : " County 
 bridges are such only as require for their erection an extraordinary 
 expenditure of money; such bridges as cannot be constructed with 
 the limited means under the control of the respective road districts 
 of the county, or such as have been constructed by the county." 
 
 2 Howard County v. Legg, 93 Ind. 523, 528 (1883) ; Moreland v. 
 MitcheU County, 40 la. 394 (1875) ; Albee v. Floyd County, 46 la. 177 
 (1877) ; Eudora v. Miller, 30 Kan. 494 (1883), (2 Pac. Rep. 685). 
 
 8 Chief Justice Miller in Moneland v. MitcheU County, 40 la. 394, 
 398 (1875). 
 
 4 Augusta V. Hudson, 94 Ga. 135 (1894), (21 S. E. Rep. 289) ; Joliet 
 V. Verley, 35 111. 58 (1864) ; Shelby County v. Deprez, 87 Ind. 509 , 
 (1882) ; Sullivan County v. Sisson, 2 Ind. App. 311, 315 (1891), (28 
 N. E. Rep. 374) ; Shelby County i-. Blair, 8 Ind. App. 574, 585 (1893), 
 (36 N. E. Rep. 216) ; Albee v. Floyd County, 46 la. 177 (1877) ; 
 Chosen Freeholders v. Strader, 18 N. J. L. 108 (1840) ; Chosen Free- 
 
THE LIABILITY RELATIVE TO BEIDGES. 73 
 
 There is, however, in this country^ no arbitrary dis- 
 tance at the ends of a bridge that can be said as a matter 
 of law to constitute a part of it. How far from the main 
 structure the so-called approaches may extend is rather a 
 question of fact to be determined by the jury, under proper 
 instructions, taking into consideration all the circum- 
 stances of the particular case.^ 
 
 holders v. Hough, 55 N. J. L. 628, 643 (1893), (28 Atl. Kep. 86) ; 
 Westfield o. Tioga Comity, 150 Pa. St. 152 (1892), (24 Atl. Rep. 
 700). 
 
 " The approaches and abutments of the bridge all constituting 
 parts of one and the same structure, an allegation that railing was 
 absent from the abutment was supported by evidence showing that it 
 was absent from the approach to the bridge.'' Augusta v. Hudson, 
 94 Ga. 135, 138 (1894), (21 S. E. Rep. 289). 
 
 That the abutments constitute a part of the bridge appears to ad- 
 mit of no question. Augusta v. Hudson, 94 Ga. 135 (1894), (21 S. E. 
 Rep. 289) ; Tinkham v. Stockbridge, 64 Vt. 480 (1892), (24 Atl. Rep. 
 761). 
 
 1 In England, by Stat. 22 Hen. VIII. c. 5, and the subsequent 
 bridge acts, the highway at either end of a bridge to the extent of 
 three hundred feet was made the approach thereto. Though these 
 acts were considered to be merely declaratory of the common law, 
 this rule has not been accepted in this country. 
 
 2 Moreland v. Mitchell County, 40 la. 394 (1875) ; Miller u. Boone 
 County, 95 la. 5, 9 (1895), (63 N. W. Rep. 352) ; Tinkham v. Stock- 
 bridge, 64 Vt. 480 (1892), (24 Atl. Rep. 761). 
 
 In the latter case the trial court, in effect, instructed the jury that 
 " whatever was necessary to connect the wooden structure that spanned 
 the stream and the stone abutments on which it rested with the high- 
 way built on the solid ground, and to make the structure accessible 
 and useful as a part of the highway, was a part of the bridge." This 
 was held to be " substantially correct." 
 
 In Joliet V. Verley, 35 lU. 58 (1864), it was held that while a city 
 was under no obligation to make approaches to a bridge built by third 
 parties, it might do so, and if it undertook to make such approaches, 
 it was bound to so do the work as not to endanger the lives or limbs 
 of its citizens. Having constructed such approaches without sufficient 
 guards, it was liable for injuries due thereto. 
 
 Where a portion of a highway has been lowered for the purpose of 
 having a railroad pass over it by means of a bridge, that portion of 
 
74 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 43, What a Traveller may assume. — A traveller, on 
 approaching a bridge, if he has no knowledge of any 
 defects in it, has the right to assume that it has been so 
 constructed and kept in such repair as to meet the usual 
 and ordinary demands of travel over the highway of 
 which it forms a part, — in other words, that it is reason- 
 ably safe and sufficiently strong to support such loads as 
 were commonly carried over the highways in the vicinity 
 where it is located at the time when it was built. And 
 he has a right to act upon this assumption and to enter 
 upon the bridge without stopping to make any examination, 
 provided he proposes to transport only a load of the 
 ordinary and usual weight, and provided there is nothing 
 in the appearance of the structure, or in any other circum- 
 stance, which would suggest to the mind of a man of 
 ordinary prudence that it was unsafe or in any way insuffi- 
 cient for the use to which he is about to subject it.^ He 
 cannot, therefore, be considered guilty of negligence in 
 relying, under such circumstances, upon its apparent 
 condition of soundness and safety. ^ 
 
 If, however, the traveller proposes to transport over the 
 bridge a load of unusual weight, or to put it to such a 
 use as to subject it in some other manner to undue strain, 
 he has no right to rely upon its apparent condition and to 
 act on the assumption that it is safe and sufficiently strong 
 for the use he is about to make of it. It becomes his duty, 
 in such a case, to stop before entering upon it and to make 
 
 the highway so lowered is not in eluded in the approaches to the 
 bridge. Whiteher v. Somerville, 138 Mass. 454 (1885) ; and see also 
 White V. Quincy, 97 Mass. 430 (1867). 
 
 1 As to the effect of knowledge on the part of the traveller that the 
 bridge upon which he is about to enter is defective, see § 45, post. 
 
 2 Park V. Adams County, 3 Ind. App. 536, 587 (1891), (30 N. E. 
 Rep. 147) ; Allen County v. Creviston, 133 Ind. 39, 48 (1892), (32 N. E. 
 Kep. 735) ; La Porte County u. Ellsworth, 9 Ind. App. 566 (1893), (37 
 N. E. Rep. 22). 
 
THE LIABILITY RELATIVE TO BRIDGES. 75 
 
 some investigation as to its condition and as to the prob- 
 able strain that it was intended to withstand. If he fails 
 to do this, such failure is evidence of negligence on his 
 part which may properly be submitted to the jury.^ 
 
 § 44. Contributory Negligence. — A traveller who attempts 
 to enter upon and to cross over a bridge, must do so with 
 due care and prudence. If he is himself guilty of any 
 negligence in the manner of his travelling,^ or in the use 
 to which he puts the structure,^ provided such negligence 
 contributes to his injury, he cannot recover damages there- 
 for from the municipal corporation whose duty it was to 
 keep the bridge in repair. And whether or not the trav- 
 eller in the particular case has been guilty of contributory 
 negligence is generally a question for the jury to determine 
 upon a consideration of all the evidence in the case.* 
 
 § 45. The Traveller's Knowledge of the Defective Condi- 
 tion of the Bridge. — Travel upon the highway is usually 
 a matter not merely of right, but also of necessity. This 
 
 1 Clark County v. Brod, 3 Ind. App. 585 (1891), (29 N. E. Rep. 
 430); Allen County V. Creviston, 133 Ind. 39, 48 (1892), (32 N. E. 
 Kep. 735) ; Shadier v. Blair County, 136 Pa. St. 488 (1890), (20 Atl. 
 Rep. 539). In this last case the judge in the trial court in effect 
 instructed the jury that before crossing, the plaintiff was bound to 
 take notice of its apparent strength, the purpose for which it was 
 built, and the kind of vehicles ordinarily used thereon. This was 
 approved by the higher court. 
 
 2 See § 46, post. 
 
 8 Driving upon a bridge at a rapid pace, in the absence of any 
 ordinance upon the subject, may constitute contributory negligence, 
 Zimmerman v. Conemaugh Township, 5 Atl. Rep. 45 (Pa., 1886) ; 
 or it may not, Jordon v. Hannibal, 87 Mo. 673 (1885), according to 
 the character and size of the bridge. 
 
 In La Porte County v. Ellsworth, 9 Ind. App. 566, 570 (1893), (37 
 N. E. Rep. 22), it was held not to be contributory negligence for a 
 traveller to attempt to cross a bridge when he might have safely 
 crossed the stream which it spanned at some other nearby point. 
 
 * Howard County v. Legg, 93 Ind. 523 (1883) ; Zimmerman v. 
 Conemaugh Township, 5 Atl. Rep. 45 (Pa., 1886). 
 
76 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 is peculiarly true as to bridges. The traveller must, as a 
 rule, pass over them ; no other course is left open to him, 
 if he would continue his journey. Hence the law con- 
 siders that he has a right in such cases to assume some 
 risks without fault on his part, and, taking into account 
 the exigency by which he is led to undertake the journey, 
 will not require him to abandon it, unless the danger is of 
 such a character that no prudent man, knowing what he 
 knows, would encounter it. It is the general rule, there- 
 fore, that the mere fact that a traveller knows before he 
 enters upon a bridge that it is in a defective condition is 
 not conclusive of his right to recover damages from the 
 municipal corporation, whose duty it was to keep the 
 same in proper repair. It is not negligence per se. It is 
 simply to be treated as evidence, though oftentimes no 
 doubt as evidence of considerable weight, tending to show 
 a lack of due care on his part.^ But this general rule will 
 not be applied if it appears that the traveller, knowing 
 that the bridge was in a very dangerous condition, and . 
 having it in his power to avoid the danger by crossing the 
 stream at another nearby and safe crossing which was 
 known to him, voluntarily chose to go over the defective 
 structure and to take his chances of being injured. ^ 
 
 § 46. Putting a Bridge to a New Use. — The law does 
 not require municipal corporations to anticipate that the 
 bridges constructed and maintained by them will be put 
 to uses not known at the time when they are built, nor 
 does it oblige them to foresee necessities of travel which 
 are not within ordinary experience at that time. Its re- 
 
 1 Madison County v. Brown, 89 Ind. 48 (1883) ; Howard County 
 V. Legg, 93 Ind. 523 (1883) ; Porter County v. Dombke, 94 Ind. 72, 
 76 (1883) ; Boone County v. Mutchler, 137 Ind. 140, 148 (1893), (36 
 N. E. Rep. 534); Rosedale v. Golding, 55 Kan. 167 (1895), (40 Pao. 
 Kep. 284). 
 
 2 Cohea v. Coffeeville, 69 Miss. 561, 564 (1891), (18 So. Rep. 668). 
 
THE LIABILITY RELATIVE TO BRIDGES. 77 
 
 quirement of them is simply that they shall provide for 
 the usual and ordinary uses to which the highway is com- 
 monly put in the neighborhood where the bridge is located, 
 at the time when it is constructed. The rule has become 
 well established, consequently, that municipal corporations 
 are nor liable for injuries received while the traveller is 
 putting a bridge to a use that is unusual or extraordinary 
 either by reason of the speed at which the crossing is 
 attempted, or of the weight of the load, or of the character 
 of the vehicle, or of the manner in which the weight is 
 concentrated, or of any other circumstance. ^ 
 
 This rule may, it would seem, be based either upon the 
 doctrine of contributory negligence or upon the maxim 
 volenti non fit injuria. A majority of the cases upon this 
 subject appear to go upon the theory that the traveller 
 who makes an unusual or extraordinary use of a bridge is 
 to be deemed not to have exercised that degree of care 
 which the circumstances required of him ;2 "but there are a 
 
 1 Wilson V. Granby, 47 Conn. 59 (1879) ; Vermillion County v. 
 Chipps, 131 Ind. 56, 61 (1891), (29 N. E. Rep. 1066) ; Bonebrake v. 
 Huntington County, 141 Ind. 62 (1894), (40 N. E. Rep. 141) ; Gregory 
 V. Adams, 14 Gray (Mass.) 242 (1859) ; Clapp v. Ellington, 51 Hun 
 (N. Y.), 58 (1889), (3 N. Y. Supp. 516) ; McCormick v. Washington 
 Township, 112 Pa. St. 185 (1886), (4 Atl. Rep. 164) ; Shadier v. Blair 
 County, 136 Pa. St. 488 (1890), (20 Atl. Rep. 539). 
 
 In Bonebrake v. Huntington County, 141 Ind. 62 (1894), (40 N. E. 
 Rep. 141), it appeared that the plaintiff had attempted to pass over 
 the bridge with a traction engine ; that such engines had been in use 
 in the neighborhood many years prior to the date of the construction 
 of the bridge. The court decided that " the bridge must be held to 
 have been built in the anticipation of taking such engines over." 
 See also Coulter v. Pine Township, 164 Pa. St. 543 (1894), (30 Atl. 
 Rep. 490). 
 
 2 Clark County v. Brod, 3 Ind. App. 585 (1891), (29 N. E. Rep. 
 430); Wabash v. Carver, 129 Ind. 552 (1891), (29 N. E. Rep. 25) 
 AUen County v. Creviston, 133 Ind. 39 (1892), (32 N. E. Rep. 735) 
 Yordy v. Marshall County, 86 la. 340 (1892), (53 N. W. Rep. 298) 
 Clapp V. Ellington, 51 Hun (N. Y.), 58 (1889), (3 N. Y. Sup. 516). 
 
78 LIABILITY OP MUNICIPAL COEPOEATIONS FOB TORT. 
 
 few cases in which the theory seems to have been adopted 
 that he who attempts such a use of a bridge is to be con- 
 sidered as having assumed all the risks incident to such 
 use.i While each theory is perhaps equally conclusive 
 against the plaintiff, the latter, it is submitted, has a 
 closer and more satisfactory application to cases of this 
 class, in as much as the exact duty of a traveller who 
 approaches a bridge with a heavy load or an unusual 
 vehicle can rarely be determined by him; indeed, he may 
 do all those things, by way of precaution, that would be 
 suggested to the mind of the ordinarily prudent man, and 
 yet be making, as a matter of fact, an unusual and unau- 
 thorized use of the bridge. 
 
 It can seldom be said as a matter of law that the trav- 
 eller was, at the time of the accident, subjecting the par- 
 ticular bridge to a new or extraordinary use. Whether or 
 not he was so doing is as a general rule a question of fact 
 for the jury t3 determine, taking into consideration the 
 nature of the usual travel over the highway of which the 
 bridge forms a part, the weight of the vehicle, the method 
 of its construction, the manner of its locomotion, and like 
 circumstances.^ 
 
 1 Wilson V. Graiiby, 47 Conn. 59 (1879); Gregory v. Adams, 14 
 Gray (Mass.), 242 (1859) ; Shadier v. Blair County, 136 Pa. St. 488 
 (1890), (20 Atl. Rep. 539). 
 
 In Wilson v. Granby, 47 Conn. 59 (1879), the following instruction 
 asked for by the defendant was held to be " sound in law " • " If the 
 load was unusual and extraordinary, as to its bulk or weight, and 
 not suitable or adapted to a way opened and prepared for the public 
 use in the common intercourse of society, and in the transaction of 
 the usual and ordinary affairs of business on said road, the plaintiff 
 took every possible risk of loss and damage upon himself." 
 
 2 Wilson V. Granby, 47 Conn. 59 (1879) ; Clark County o. Brod, 
 3 Ind. App. 585 (1891), (29 N. E. Rep. 430) ; Wabash v. Carver, 129 
 Ind. 552 (1891), (29 N. E. Rep. 25) ; Allen County v. Creviston, 133 
 Ind. 39 (1892), (32 N, E. Rep. 735) ; Yordy v. Marshall County, 86 
 la. 340 (i892), (53 N. W. Rep. 298) ; Gregory v. Adams, 14 Gray 
 
THE LIABILITY RELATIVE TO BRIDGES. 79 
 
 § 47. The Doctrine of Proximate Cause. — The defect in 
 the bridge must be the proximate cause of the plaintiff's 
 injury. In the language of a recent case : ^ " The injury 
 must be the natural and probable consequence of the neg- 
 ligence, such a consequence as under the surrounding cir- 
 cumstances of the case might and ought to have been fore- 
 seen by the wrongdoer, and likely to flow from his act. " 
 It does not necessarily follow, however, that the defect 
 must be the sole proximate cause. It is generally held, 
 indeed, that " where two causes combine to produce an 
 injury, both of which are in their nature proximate, the 
 one being a culpable defect in the bridge, and the other an 
 occurrence for which neither party is responsible," the 
 municipal corporation will still be liable, provided the 
 injury would not have been sustained but for such defect. 
 The concurrent cause which will not debar a traveller from 
 recovering damages in accordance with this rule may be a 
 pure accident, as the catching of the plaintiff's cloth- 
 ing upon a protruding nail,^ or the wholly unforeseen 
 
 (Mass.), 242 (1859) ; Clapp v. EDington, 51 Hun (N. Y.), 58 (1889), 
 (3 N. Y. Supp. 516) ; Shadier v. Blair County, 136 Pa. St. 488 (1890), 
 (20 Atl. Kep. 539) ; Coulter u. Pine Township, 164 Pa. St. 543 (1894), 
 (30 Atl. Rep. 490). 
 
 In Clapp V. EUington, 51 Hun (N. Y.), 58, 62 (1889), (3 N. Y. 
 Supp. 516), the court says : " It is true . . . that improved implements 
 of travel are invented, and machinery for threshing and other agri- 
 cultural purposes are matters involved in civilization. It is further 
 true that these traction engines in farming communities have within 
 the last few years come into use in the threshing of grain, and that 
 they are usually propelled from place to place through the highways ; 
 and that these facts wiU have to be taken into consideration by the 
 jury in determining whether they are unusual or extraordinary." 
 
 1 Bitting V. Maxatawny Township, 177 Pa. St. 213, 215 (1896), (35 
 Atl. Rep. 715). 
 
 2 Joliet V. Verley, 35 111. 58 (1864) ; Spaulding v. Sherman, 75 Wis. 
 77 (1889), (43 N. W. Rep. 558). In this last case it appeared that 
 the axle of the plaintiff's wagon broke and at the same time the 
 
80 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 action of the plaintiff's horse, as its sudden fright ^ or 
 sickness. 2 
 
 bridge fell. It was held that the jury should have been instructed to 
 determine whether the breaking of the axle or the falling of the 
 bridge was the proximate cause of the injury, the evidence as to these 
 points not being so clear and undisputed -as to justify the court in 
 deciding the matter as a question of law. 
 
 1 Augusta V. Hudson, 94 Ga. 135 (1894), (21 S. E. Rep. 289); Sul- 
 livan County V. Sisson, 2 Ind. App. 311, 317 (1891), (28 N. E. Rep. 
 374) ; Boone County v. Miitchler, 137 Ind. 140 (1893), (86 N. E. Rep. 
 634) ; Rohrbough v. Barbour County Court, 39 W. Va. 472 (1894), 
 (20 S. E. Rep. 565). And see Bitting v. Maxatawny Township, 177 
 Pa. St. 213 (1896), (35 Atl. Rep. 715), where it appeared that the 
 plaintiff's horse had a propensity to take fright, which fact was known 
 to the plaintiff ; that becoming frightened, it backed off a side of the 
 bridge which was unguarded by a railing. The court held that while 
 the duty of the defendant was to provide a reasonably safe highway 
 for ordinary travel by the ordinary horse, and there was no duty to 
 provide for travel by exceptionally vicious, untrained, and unmanage- 
 able animals, it was a question for the jury whether this accident 
 was one that ought to have been foreseen and guarded against. 
 
 Where it appeared that when the plaintiff had approached within 
 a short distance of the bridge, his horses became frightened at a plank 
 standing upright in it, and overturned the carriage, doing the damage 
 of which complaint was made, it was held that the defendant was not 
 bound to so maintain its bridges that horses would not take fright at 
 them ; the extent of its duty was to so maintain them that they may be 
 safely used by persons travelling on the highway. " No action will lie 
 where the injury is caused before the bridge is entered, by the horses 
 of the traveller taking fright, for, where there is no duty, there can 
 be no breach, if no breach, then no action." Municipal corporations 
 are liable only to those who suffer an injury because a bridge is un- 
 safe for travel ; but they are not liable where the injury is suffered by 
 a person not actually using the bridge for that purpose. Fulton 
 County V. Rickel, 106 Ind. 501 (1886), (7 N. E. Rep. 220). 
 
 2 Houfe V. Fulton, 29 Wis. 296 (1871). In this case, while the 
 plaintiff was passing over a bridge without railings, his horse suddenly 
 stopped, staggered, and fell over the side of the bridge. It was held 
 that the plaintiff was entitled to recover. In McClain v. Garden 
 Grove, 83 la. 235 (1891), (48 N. W. Rep. 1031), the facts were the 
 same, save that here there was a railing against which the horse fell, 
 carrying it with him as he went off the bridge. The court held that 
 the action of the horse was the proximate cause of the injury. 
 
THE LIABILITY RELATIVE TO BRIDGES. 81 
 
 I 48. The Extent of the Iiiability relative to Bridges. — 
 Municipal corporations are not insurers of the safety of 
 their bridges.^ They are bound simply to use reasonable 
 care and diligence in the construction and maintenance of 
 them, so that they may be reasonably safe for the ordinary ^ 
 passage of travellers both by day and in the night-time.^ 
 
 1 Porter County v. Dombke, 94 Ind. 72, 75 (1883) ; Wabash County 
 V. Pearson, 120 Ind. 426 (1889), (22 N. E. Rep. 134) ; Vermillion County 
 V. Chipps, 131 Ind. 56 (1891), (29 N. E. Rep. 1086); Holmes U.Ham- 
 burg, 47 la. 348 (1877); Blank v. Livonia Township, 79 Mich. 1, 5 
 (1889), (44 N. W. Rep. 157). 
 
 2 The liability of a municipal corporation " stops with construct- 
 ing and maintaining its bridges so as to protect against injury by a 
 reasonable, proper and probable use thereof in view of the surround- 
 ing circumstances, such as the extent, kind and nature of the travel, 
 and business on the road of which it forms a part." McCormick v. 
 Washington Township, 112 Pa. St. 185, 197 (188S), (4 Atl. Rep. 164). 
 
 8 Knox County v. Montgomery, 109 Ind. 69 (1886), (9 N. E. Rep. 
 590); Bitting v. Maxatawny Township, 177 Pa. St. 213 (1896), (35 
 Atl. Rep. 715); Stephaniw. Manitowoc, 89 Wis. 467 (1895), (62 N. W. 
 Rep. 176). 
 
 The employment of a competent bridge tender will not relieve the 
 defendant corporation from responsibility for the unsafe condition of 
 the structure. Stephani v. Manitowoc, 89 Wis. 467 (1895), (62 IST. W. 
 Rep. 176). 
 
 If it appears that without the use of certain appliances a bridge is 
 defective in construction, and not ordinarily well built, it is negligence 
 on the part of the defendant corporation not to use such appliances. 
 Cooper V. Mills County, 69 la. 350, 355 (1886), (28 N. W. Rep. 633). 
 
 In the course of the opinion in Medina Township v. Perkins, 48 
 Mich. 67, 72 (1882), (11 N. W. Rep. 810), Chief Justice Graves says : 
 In requiring ordinary care and diligence, " the law must be taken as 
 contemplating what would have to be encountered, in the size of the 
 township, the sparseness of population, the number and remoteness 
 of the ways and bridges which would be equal objects of attention, 
 the unfitness of the organization and its official staff for prompt in- 
 spections and prompt reparations and the unlikelihood of finding road 
 officers with exceptional qualifications. And the supposition is not 
 admissible that an intention has existed to require something not 
 consistent with such conditions. The law will not impose an imprac- 
 ticable rule of duty. Township officers are not expected to be experts, 
 
 6 
 
82 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 In order, therefore, to recover damages for injuries due 
 to the defective condition of a bridge, it is not enough for 
 the plaintiff to show merely that there was a defect therein 
 and that this defect caused his injury. He must go one 
 step further and show that the existence of this defect was 
 due to the negligence of the municipal authorities in con- 
 structing or in maintaining the bridge. The whole lia- 
 bility of municipal corporations in this regard rests thus 
 upon negligence.^ 
 
 It follows that they are not liable for injuries due to 
 latent defects in the structure, such defects as could not 
 have been discovered by the exercise of reasonable care 
 and diligence. And yet, even though the defect be latent 
 in character, if its existence is actually known to the 
 municipal authorities, the corporation will be liable for 
 any injuries caused by its failure to exercise reasonable 
 care in remedying it.^ 
 
 nor learned engineers, nor persons liberally instructed in mechanics, 
 nor individuals equipped with the resources of experienced special- 
 ists ; and nothing more can be demanded of them than reasonable 
 intelligence and ordinary care and prudence. And no duty is en- 
 joined on the township to keep informed of the condition of its 
 bridges that may be taken as being above the capacity of its own 
 officers." 
 
 Municipal corporations are not required to keep their bridges in 
 such condition that horses will not take fright at them. Fulton 
 County V. Rickel, 106 Ind. 501 (1886), (7 N. E. Rep. 220). 
 
 1 Howard County v. Legg, 93 Ind. 523, 527 (1883) ; Fatten v. 
 Montgomery County, 96 Ind. 131 (1884) ; Holmes v. Hamburg, 47 
 la. 348 (1877) ; Cooper v. Mills County, 69 la. 350 (1886), (28 N. W. 
 Rep. 633) ; Medina Township v. Perkins, 48 Mich. 67 (1882), (11 
 N. W. Rep. 810) ; Lehigh County v. Hofiort, 116 Fa. St. 119 (1887), 
 (9 Atl. Rep. 177). 
 
 In Ripley v. Chosen Freeholders, 40 N. J. L. 45 (1878), the" defend- 
 ant was held liable for injuries done to the plaintiff's vessel while 
 attempting to pass through the draw of a bridge, said injuries being 
 due to the defendant's failure to keep the bridge in repair. 
 
 2 Vermillion County v. Chipps, 131 Ind. 56, 62 (1891), (29 N. E. 
 
THE LIABILITY RELATIVE TO BRIDGES. 83 
 
 § 49. The Liability for Defects due to the Plans adopted. 
 — It is the general rule that municipal corporations act 
 judicially in selecting the plan in accordance with which 
 a bridge is to be constructed, and are not, therefore, sub- 
 ject to a private action for mere errors of judgment in 
 respect to the plan finally adopted. ^ 
 
 It has been held in some cases, however, that they must 
 exercise reasonable care and skill in the selection of the 
 plan. This does not necessarily require them to adopt the 
 best known plan for bridge building, but simply such a 
 plan as shall insure a reasonably safe and sufficient struc- 
 ture — one suited to the place at which it is to be built. If 
 they fail to exercise this much care and skill in the adop- 
 tion of the plans for the bridge, they cannot escape liabil- 
 ity for damages due to the structure that is built, simply 
 because such defects are directly traceable to the insuffi- 
 ciency of the plans selected. 
 
 § 50. The Liability in Respect to the VTidth of the 
 Bridge. — It is the duty of municipal corporations to so 
 construct their bridges that they shall bo sufficiently 
 broad to permit the passage over them of all vehicles and 
 
 Rep. 1066); Childs v. Crawford County, 176 Pa. St. 139, 148 (1896), 
 (34 Atl. Rep. 1020). 
 
 1 See Jordan v. Hannibal, 87 Mo. 673, 675 (1885) ; Delaware 
 Comity's Appeal, 119 Pa. St. 159 (1888), (13 Atl. Rep. 62). 
 
 2 Ferguson v. Davis County, 57 la. 601, 608 (1881), (10 N. W. Rep. 
 906) ; Childs V. Crawford County, 176 Pa. St. 139 (1896), (34 Atl. 
 Rep. 1020). 
 
 It has been held that a plaintiff is entitled to recover damages 
 where a municipal corporation constructs a bridge according to 
 plans, the effect of which is to so narrow the channel as to cause the 
 water to set back, and so to interfere with his right to drainage for 
 his land, Lawrence v. Fairhaven, 5 Gray (Mass.), 110 (1855) ; Perry 
 V. Worcester, 6 Gray (Mass.), 544 (1856) ; or with his right to pre- 
 viously acquired mill privileges. Riddle v. Delaware County, 156 
 Pa. St. 643 (1893), (27 Atl. Rep. 569). These decisions are, however, 
 based purely upon the principles of the law relating to watercourses. 
 
84 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 macWnery in common use upon the highway in the neigh- 
 borhood where they are located, at the time when they are 
 constructed. In short, they must be sufficiently broad to 
 meet the usual and ordinary requirements of the travel- 
 ling public, having regard to the time when, and the 
 place where, they are constructed. ^ But in order to recover 
 damages because of the insufficient width of a bridge, it 
 must of course appear that such insufficiency was the proxi- 
 mate cause of the injury.^ 
 
 § 51, The Liability in Respect to the Height of the Bridge 
 above a Highway. — Municipal corporations are bound to 
 so construct and maintain a highway at the point where it 
 passes under a bridge that there shall be sufficient space 
 in point of height to allow travellers to pass under the 
 bridge safely with vehicles and loads of a size in common 
 use, and will, therefore, be liable for any damages occa- 
 sioned by their failure to so do.^ 
 
 § 52. The Liability in Respect to the Strength of the 
 Bridge. — The law requires that municipal corporations 
 shall construct and maintain bridges of sufficient strength 
 to insure the safety of travellers who pass over them with 
 vehicles of such a character, and with loads of such a 
 weight, as are commonly and ordinarily used in the 
 
 1 Quinton v. Burton, 61 la. 471, 476 (1883), (16 N. W. Rep. 589). 
 
 2 Barron v. Chicago, etc. 11. Co., 89 Wis. 79, 82 (1894), (61 N. W. 
 Rep. 303) ; Missouri River Paclset Co. v. Hannibal, etc, R. Co., 1 Mc- 
 Crary (U. S.), 281 (1880). 
 
 8 Gray v. Danbury, .54 Conn. 574 (1887), (10 Atl. Rep. 198), wliere 
 the plaintiff attempted to pass under a bridge with a load of hay of 
 ordinary size ; Talbot v. Taunton, 140 Mass. 552 (1886), (5 N. E. Rep. 
 616), where the plaintiff attempted such passage with an omnibus. 
 
 In this last case, the court says, at page 556 : "In such case, the 
 bridge is not the defect, but the way itself becomes defective and out 
 of repair, because, its grade being raised, its surface is brought so near 
 the bridge as to render travel in the street unsafe, inconvenient, and 
 dangerous." 
 
THE LIABILITY RELATIVE TO BRIDGES. 85 
 
 vicinity where they are located, at the time when they are 
 built. This simply requires that they should be made 
 sufficiently strong " to protect against injury by a reason- 
 able, proper, and probable use thereof in view of the cir- 
 cumstances, such as the extent, kind and nature of the 
 travel and business on the road of which it forms a part." 
 They are not obliged, of course, to anticipate that a bridge 
 will be put to any uses which will involve a greater strain, 
 and therefore require greater strength, than the uses 
 known to the municipal authorities at the time of its con- 
 struction. It has become the established rule, conse- 
 quently, that municipal corporations are not liable to any 
 traveller who is injured while subjecting a bridge to an 
 unusual or extraordinary strain.^ 
 
 § 53. The Liability in Respect to Railings. — The duty of 
 municipal corporations relative to the erection of railings 
 is not an absolute one. They are not bound to build 
 them upon all bridges at all events. The safety of the 
 travelling public is, of course, the test of the necessity of 
 such safeguards. They must, thus, erect railings upon 
 their bridges and the appi'oaches thereto whenever such 
 guards may be needed to render the structures reasonably 
 safe for travel in the ordinary modes and with the ordi- 
 nary horse. And if railings are required, they must be of 
 sufficient height and strength to meet all those incidental 
 uses to which they may reasonably be put by travellers 
 who are crossing; they need not be such as to withstand 
 any unusual or extraordinary strains.^ If the failure to 
 
 1 Vermillion County v. Chipps, 131 Ind. 56, 61 (1891), (29 N. E. 
 Rep. 1066); Yordy v. Marshall County, 86 la. 340 (1892), (53 N. W. 
 Kep. 298 ; Clapp v. Ellington, 51 Hun (N. Y.), 58 (1889), (3 N. Y. Supp. 
 516). 
 
 2 Shelby County w. Blair, 8 Ind. App. 574, 585 (1893), (36 N. E. Rep. 
 216) ; McClain v. Garden Grove, 83 la. 235, 237 (1891), (48 N. VC. 
 Rep. 1031) ; Lauglois v. Cohoes, 58 Hun (N. Y.), 226, 229 (1890), 
 (11 N. Y. Supp. 908). 
 
86 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TOBT. 
 
 erect proper and sufficient railings where the circumstances 
 required them is established, and it appears that such 
 failure was the proximate cause of the accident, the de- 
 fendant corporation will be liable for all damages occa- 
 sioned bj the omission of them.^ 
 
 As already indicated, the failure to erect railings is 
 not, as a general rule, negligence per se. The question 
 whether or not the bridge was defective without them is 
 commonly one of fact for the jury to determine in view of 
 the surroundings where the bridge is located, its width 
 and length, and elevation above the water, and the nature 
 and amount of travel over it, 
 
 § 54. The Liabilities in Respect to Barriers. — As has 
 been pointed out, the general obligation resting upon 
 municipal corporations relative to bridges is to keep them 
 in a reasonably safe condition for travel both by day and 
 in the night-time. The existence of a structural defect 
 that is known or reasonably ought to be known, or the 
 
 1 Augusta V. Hudson, 94 Ga. 135 (1894), (21 S. E. Rep. 289) ; Sul- 
 livan County V. Sisson, 2 Ind. App. 311 (1891), (28 N. E. Rep. 374) ; 
 Boone County v. Mutchler, 137 Ind. 140 (1893), (36 N. E. Rep. 584) ; 
 Rosedale v. Golding, 55 Kan. 167 (1895), (40 Pac. Rep. 284) ; Carle- 
 ton V. Caribou, 88 Me. 461 (1896), (34 Atl. Rep. 269); Bullock v. 
 Durham, 64 Hu,n (JT. Y.), 380 (1892), (19 N. Y. Supp. 635) ; Rohr- 
 bough V. Barbour County Court, 39 W. Va, 472 (1894), (20 S. E. Rep. 
 565) ; Houfe v. Fulton, 29 Wis. 296 (1871). 
 
 In Lehigh County v. Hofiort, 116 Pa. St. 119 (1887), (9 Atl. Rep. 
 177), it appeared that while the plaintifE was crossing a bridge on the 
 footway, she was run down and injured by a runaway team ; that 
 there was between the footway and the carriage-way a six-inch stone 
 curbing, but no railing or guards to protect the travellers on foot 
 from such teams. It was held that the county was not liable, on 
 the ground that it was unreasonable to suppose that such an accident 
 should have been foreseen as the result of the failure to erect railings 
 above the curb. 
 
 2 Ross V. Ionia Township, 104 Mich. 320 (1896), (62 N. W. Rep. 
 401) ; Staples v. Canton, 69 Mo. 592, 593 (1879) ; Bitting v. Maxa- 
 tawny Township, 177 Pa. St. 213 (1896), (35 Atl. Rep. 715). 
 
THE LIABILITY RELATIVE TO BRIDGES. 87 
 
 work of making repairs, particularly in the flooring, 
 necessarily renders a bridge more or less unsafe for 
 travel, especially at night. And in the nature of things, 
 the dangers arising therefrom are such as can be guarded 
 against only by some special precaution. If, therefore, 
 a municipal corporation knows, or reasonably ought to 
 have known, that a bridge is structurally defective, or if 
 it undertakes to make repairs therein, it is bound to pro- 
 vide at the dangerous spot suitable and proper safeguards 
 against accident, — either barriers, or lights, or both, as 
 the circumstances may require ; and it will, of course, be 
 responsible for any damages due to its failure to take such 
 special precautions as the situation demanded. ■* And, 
 moreover, the employment of a contractor to make the 
 repairs upon the structure will not in any degree relieve 
 it from this duty, nor serve as a defence to an action based 
 upon a failure to perform it.^ 
 
 If, however, a municipal corporation builds a barricade 
 about the dangerous place sufficient in height and strength 
 to protect travellers who may make a proper use of the 
 bridge, it has done all that can reasonably be required 
 of it, and will not be responsible for any accident that 
 may happen because of the existence of such dangerous 
 place. And this is so, even though the barriers have 
 been subsequently broken down or entirely removed by 
 some unforeseen accident or by the act of some third 
 
 1 Park V. Adams County, 3 Ind. App. 536 (1891), (30 N. E. Rep. 
 147) ; Van Winter u. Henry County, 61 la. 684 (1883), (17 N. W. 
 Rep. 94) ; Chosen Freeholders v. Hough, 55 N. J. L. 628 (1893), (28 
 Atl. Rep. 86) ; Hawxhurst v. Mayor, etc. of New York, 43 Hun 
 (N. Y.), 588 (1887); Stephani v. Manitowoc, 89 "Wis. 467 (1895), 
 (62 N. W. Rep. 176). 
 
 2 Park V. Adams County, 3 Ind. App. 536. (1891), (30 N. E. Rep. 
 147) ; Hawxhurst v. Mayor, etc. of New York, 43 Hun (N. Y.), 588, 
 (1887). 
 
bo LIABILITY OP MUNICIPAL COEPOBATIONS FOR TORT. 
 
 party, unless it further appears that the corporation knew, 
 or by the exercise of reasonable diligence might have 
 known, of such breaking down or removal in time to have 
 prevented the injury.^ 
 
 § 55. The Duty of Municipal Corporations relative to 
 the Inspection of Bridges. — .It is a matter of common 
 knowledge that the timbers and other materials from 
 which bridges are constructed have a tendency to deterio- 
 rate with long use and to decay with the lapse of time and 
 exposure to the weather, and that in consequence a bridge, 
 if left to itself, will in time become a source of positive 
 danger to the travelling public. Such being the fact, 
 municipal corporations are under obligation to exercise a 
 reasonable degree of affirmative and active diligence and 
 caution to ascertain the condition of those bridges for 
 which they are responsible.^ And it has been held, fur- 
 
 1 Weirs v. Jones County, 80 la. 351 (1890), (45 N. W. Kep. 883); 
 Mullen V. Rutland, 55 Vt. 77 (1883). 
 
 2 Madison County u. Brown, 89 Ind. 48, 52 (1883) ; Howard County 
 V. Legg, 93 Ind. 523, 528 (1883) ; Allen County v. Creviston, 133 
 Ind. 39, 47 (1892), (32 N. E. Rep. 735); Blank v. Livonia Township, 
 79 Mich. 1, 6 (1889), (44 N. W. Rep. 157) ; Childs v. Crawford County, 
 176 Pa. St. 139, 150 (1896), (34 Atl. Rep. 1020). 
 
 Where it appeared that during eight years of use and exposure 
 to the elements, no inspection of the bridge had been made nor had 
 any care whatever been exercised to ascertain its condition, the court 
 held that there was no escape from the conclusion that the munici- 
 pal authorities were guilty of actionable negligence. AUen County 
 V. Creviston, 133 Ind. 39, 47 (1892), (32 N. E. Rep. 735). 
 
 In Blank v. Livonia Township, 79 Mich. 1 (1889), (44 N. W. Rep. 
 157), the court says, at page 4: "The care and caution required in 
 ascertaining whether timbers in a bridge are sound must necessarily 
 depend in a measure upon the length of time the bridge has been built ; 
 especially is this so in respect to the soundness or unsoundness of 
 the timber from internal decay or ' dry rot.' " And again, at page 6 ; 
 " In respect to latent defects in the timbers of a bridge, it is the duty 
 of the highway commissioner to make proper and seasonable inspection 
 to ascertain its condition as to safety for the public travel, and to 
 
THE LIABILITY RELATIVE TO BRIDGES. 89 
 
 thermore, that if there are any facts known to the munici- 
 pal authorities which would naturally lead them to think 
 that the structure was in a defective condition, as the 
 finding of decayed timbers while making slight repairs, 
 it then becomes the duty of the corporation to make a 
 thorough inspection of the bridge, or to have such inspec- 
 tion made by a competent bridge builder. ^ 
 
 § 56. The Duty to make Repairs. — After bridges have 
 been built, the duty to maintain them extends only so far 
 as to require municipal corporations to make such repairs 
 as will keep them in a safe condition for any reasonable 
 and probable use, taking into consi-deration the nature and 
 extent of the travel over the highway of which they form a 
 part. As has been said by the Supreme Court of Indiana: 
 "In repairing, they have performed their whole legal duty 
 
 exercise due care and caution in so doing to find defects, and the 
 kind of inspection and the amount of care and caution required of 
 him upon which to predicate negligence in the performance of the re- 
 quired duty will depend upon all the facts and circumstances of the 
 particular case." And in Medina Township v. Perkins, 48 Mich. 67 
 (1882), (11 N. W. Rep. 810), Chief Justice Graves says, at page 72: 
 " No duty is enjoined on the township to keep informed of the con- 
 dition of its bridges, that may be taken as being above the capacity 
 of its own officers." 
 
 In a case where the bridge had stood for a long time and the tim- 
 bers, although they appeared to be sound oujtwardly, were decayed 
 within, the court said : " When a bridge is old, having stood for the 
 length of time the timbers composing it are accustomed to last, and 
 when it may be reasonably expected that decay has set in, it is negli- 
 gence to omit all proper precautions to ascertain its true condition. 
 Nor will mere appearance in such a case excuse the neglect. It is a 
 matter of common knowledge that invisible defects may, and under 
 such circumstances probably do exist; that either wet or dry rot 
 may have set in, and not be visible, and therefore should be sought 
 for. But no one of ordinary intelligence would think of seeking for 
 an inward and invisible defect by merely inspecting the surface of 
 the wood." Kapho Township v. Moore, 68 Pa. St. 404, 408 (1871). 
 
 1 Spaulding v. Sherman, 75 Wis. 77, 79 (1889), (43 N. W. Rep. 
 558). 
 
90 LIABILITY OF MUNICIPAL COBPORATIONS FOB TORT. 
 
 when they have put them in as good a condition of strength 
 and soundness as will make them as secure as new bridges 
 of the same kind and plan."i To accomplish this end, 
 municipal corporations are bound simply to exercise rea- 
 sonable care and skill to select the proper means and com- 
 petent persons for the work in hand ; and if, having done 
 this much, the bridge proves to be still unsafe, they will 
 not be responsible. 2 
 
 But at common law this duty to repair is itself condi- 
 tional. It does not arise at all, unless the corporation 
 has at its disposal the funds or the means to secure them, 
 which may be employed in its performance.^ " Yet, having 
 exclusive control, it is required by law to maintain its 
 bridges kept open for the use of the public, in reasonably 
 safe condition and repair; and if, for any reason, as, that 
 the cost of repair will be more than the fund at the dis- 
 posal of the municipality, or which it might, by the ex- 
 ercise of its corporate powers, command, the repair is 
 impossible, the street or bridge, if known to be unsafe, 
 should not be held out to the public as safe for its use. 
 The duty of the corporate authorities would be to close 
 the bridge against the public, and warn them of the dan- 
 ger of passage over it until put in proper repair. 
 
 " 4 
 
 1 Mr. Justice Coffey in Vermillion County v. Chipps, 131 Ind. 56, 
 61 (1891), (29 N. E. Rep. 1066). 
 
 2 Wabash County v. Pearson, 120 Ind. 426 (1889), (22 N. E. Rep. 
 134) ; Vermillion County v. Chipps, 131 Ind. 56, 61 (1891), (29 N". E. 
 Rep. 1066); Stebbins v. Keene Township, 60 Mich. 214 (1886), (26 
 K. W. Rep. 885) ; McCormick v. Washington Township, 112 Pa. St. 
 185 (1886), (4 Atl. Rep. 164) ; Childs v. Crawford County, 176 Pa. 
 St. 139, 150 (1896), (34 Atl. Rep. 1020). 
 
 See § 9, ante. 
 
 * Mr Justice Shope, in Carney v. Marseilles, 136 111. 401, 406 (1891), 
 (26 N. E. Rep. 491). In that case it was held that since the defend- 
 ant corporation had perm'itted the bridge to remain open for public 
 use for five years without warning or notice of its dangerous condition, 
 
THE LIABILITY RELATIVE TO BRIDGES. 91 
 
 § 57. The Necessity of showing Notice. — In order to 
 fix the liability of a municipal corporation for injuries 
 occasioned by the defective condition of a bridge which it 
 is bound to maintain, it is not enough for the plaintiff to 
 show that a defect existed in the structure and that such 
 defect was the proximate cause of his injury. The bur- 
 den rests upon him to show also that the defendant had 
 notice of the existence of that very defect, or might, by 
 the exercise of reasonable care and diligence, have had 
 notice of it in time to have prevented the accident. This 
 requirement is, of course, simply a phase of the fundamen- 
 tal rule that municipal corporations are not insurers of the 
 safety of their bridges. Their whole liability at common 
 law is founded upon negligence; but obviously no negli- 
 gence can be predicated as to defective conditions the 
 existence of which they do not know, and could not with 
 due diligence discover. 
 
 § 58. When Notice need not be shown. — The rule 
 requiring a plaintiff, in order to maintain his action, to 
 bring home to the defendant corporation notice of the 
 defective condition that caused his injury, does not apply 
 where such defective condition was a plain lack of com- 
 pletion of the bridge for the use for which it was intended. 
 In such cases, since the action is based upon some fault 
 
 it could not be heard, in a suit for damages resulting from its failure 
 to discharge the duty of keeping the structure in a safe condition, to 
 say that it had no funds with which to make the repairs. 
 
 1 Howard County v. Legg, 93 Ind. 523, 527 (1883) ; Allen County 
 V. Bacon, 96 Ind. 31 (1884) ; Ferguson v. Davis County, 57 la. 601, 
 609, 612 (1881), (10 N. W. Rep. 906) ; O'Neil v. Deerfield Township, 
 86 Mich. 610 (1891), (49 N. W. Kep. 596) ; Cohea v. Coffeeville, 69 
 Miss. 561 (1891), (13 So. Rep. 668); Jordan v. Hannibal, 87 Mo. 673, 
 675 (1885) ; Foels v. Tonawanda, 75 Hun (N. Y.), 363 (1894), (27 
 N. Y. Supp. 113); Childs v. Crawford County, 176 Pa. St. 139 (1896), 
 (34 Atl. Rep. 1020) ; McDonald v. Ashland, 78 Wis. 251 (1890), (47 
 N. W. Rep. 434). 
 
92 LIABILITY OF MDNICIPAL CORPORATIONS FOR TORT. 
 
 in the original construction, such as the use of unsafe or 
 unsuitable materials, or the omission to supply such safe- 
 guards as the circumstances plainly required, the injury 
 must be a direct result either of some positive acts or of 
 the omission of some plainly necessary precautions on the 
 part of the defendant corporation itself. Acts or omis- 
 sions of such a character must, of course, be considered to 
 be directly within the knowledge of the corporation, and 
 for this reason the law relieves the plaintiff from the 
 necessity of proving notice.^ 
 
 This rule is, however, an apparent rather than a real 
 exception to that doctrine which makes notice of the ex- 
 istence of the defective condition an element in the plain- 
 tiff's case. For in cases of this class, where the action is 
 based upon some defect in the original construction of the 
 bridge, the law does not dispense with notice altogether, 
 but simply relieves the plaintiff from the burden of estab- 
 lishing it by conclusively presuming that the defendant 
 had the necessary knowledge. In short, the law justly 
 considers that municipal corporations are chargeable with 
 notice of their own work, and will not compel a plaintiff 
 to prove the fact. 
 
 § 59. Notice to whom. — Whatever differences of 
 opinion may exist upon this subject, it is obviously safe 
 to lay down the rule that knowledge on the part of, or 
 notice to, that board of officials which is charged by law 
 with the care and supervision of the bridges of a municipal 
 corporation, is the knowledge of, or notice to, the corpora- 
 tion itself. And notice to one member of such a board 
 is notice to the board. ^ 
 
 1 Wabash County v. Pearson, 120 Ind. 426, 428 (1889), (22 N. E. 
 Rep. 134) ; Boone County v. Mutehler, 137 Ind. 140, 147 (1893), 
 (36 N. E. Rep. 534) ; Stephani v. Manitowoc, 89 Wis. 467 (1895), (62 
 N. W. Rep. 176). 
 
 2 Allen County v. Bacon, 96 Ind. 31 (1884) ; Jaquish v. Ithaca, 86 
 Wis. 108, 111 (1874). 
 
THE LIABILITY RELATIVE TO BRIDGES. 93 
 
 § 60. Actual Notice — "When necessary. — Actual notice 
 is simply knowledge on the part of those officers whose 
 duty it is to see that the bridges of a municipal corporation 
 are kept in proper repair, of those conditions that consti- 
 tute the alleged defect. It is real knowledge as opposed 
 to a presumption of knowledge based upon the omission 
 to make proper investigation. If, then, a defect is latent 
 in character, — one that cannot be discovered by a reason- 
 able investigation, — the proper officers must be shown to 
 have had actual notice of its existence, if the plaintiff 
 would maintain his action, i 
 
 § 61. Constructive Notice. — It is not essential that the 
 plaintiff should show that the defendant corporation had 
 actual knowledge of the defective condition of the bridge 
 where the accident happened. He may still, as a rule, 
 sustain the burden of proof that rests upon him in regard 
 to notice, if he can establish the fact that it might have 
 had knowledge of such condition by the exercise of rea- 
 sonable care and diligence. Has the defect existed long 
 enough, and is it of such a character, that the proper 
 municipal officers might, if reasonably diligent, have had 
 knowledge of it ? That is the question for the jury to 
 determine in view of all the circumstances of the partic- 
 ular case. 2 
 
 1 Blank v. Livonia Township, 79 Mich. 1, 6 (1889), (44 N. W. Kep. 
 157) ; Childs v. Crawford County, 176 Pa. St. 139, 149 (1896), (34 
 Atl. Eep. 1020). 
 
 2 Madison County v. Brown, 89 Ind. 48, 52 (1883) ; Howard County 
 V. Legg, 93 Ind. 523, 527 (1883) ; Porter County v. Dombke, 94 Ind. 
 72, 75 (1883); La Porte County v. Ellsworth, 9 Ind. App. 566, 569 
 (1893), (37 N. E. Rep. 22) ; Homan v. Franklin County, 98 la. 692 
 (1896), (68 N. W. Rep. 559); Medina Township v. Perkins, 48 
 Mich. 67 (1882), (11 N. W. Rep. 810) ; McKeller v. Monitor Town- 
 ship, 78 Mich. 485 (1889), (44 N. W. Rep. 412); Blank v. Livonia 
 Township, 79 Mich. 1 (1889), (44 N. W. Rep. 157) ; O'Neil v. Deer- 
 field Township, 86 Mich. 610 (1891), (49 N. W. Rep. 596) ; Jordan v. 
 
94 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 62. The Duty after Notice. — After receiving notice, 
 actual or constructiye, of the defective condition of a 
 
 Hannibal, 87 Mo. 673, 675 (1885) ; Walker v. Point Pleasant, 49 Mo. 
 App. 244, 248 (1892) ; Chosen Freeholders v. Hough, 55 IN. J. L. 628, 
 641 (1893), (28 Atl. Rep. 86); Bullock v. Dui-ham, 64 Hun (N. Y.)', 
 380 (1892), (19 N. Y. Supp. 635) ; Foels v. Touawanda, 75 Hun (N. Y.), 
 363 (1894), (27 N. Y. Supp. 113) ; McDonald v. Ashland, 78 Wis. 251 
 (1890), (47 N. W. Rep. 434). 
 
 In Chosen Freeholders v. Hough, 55 N. J. L. 628 (1893), (28 Atl. 
 Rep. 86), the existence of an open and notorious defect for five days 
 ■was held to be a sufficient length of time from the lapse of which 
 notice might properly be inferred of a defect of that character. 
 
 In Blank v. Livonia Township, 79 Mich. 1 (1889), (44 N. W. Rep. 
 157), the court says, at page 6 : " When the defects are open to view, 
 or apparent to persons travelling over the bridge or along a highway 
 and have existed such a length of time that the proper officers whose 
 duty it is to see that the highway is kept in repair would be con- 
 sidered negligent in not seeing .such defects, then the jury may pre- 
 sume notice or knowledge of such defects." And in Porter County v. 
 Dombke, 94 Ind. 72, 75 (1883), it is said: " What is such a length of 
 time as will charge public officers with notice of a defect in a bridge 
 or highway rhust, in a great measure, depend upon the circumstances 
 of the particular case, and must, in most casfes, be a question of fact 
 to be submitted, under proper instructions, to the jury. It is obvious 
 that a greater length of time should be required in cases of country 
 bridges than in cases where the bridge belongs to a town or city, 
 because it cannot be expected that the same oversight can be main- 
 tained by county officers whose jurisdiction extends over a large 
 extent of territory, as by city or town officers whose jurisdiction is 
 over a limited territory compactly settled, and who are much better 
 provided with means for ascertaining defects in bridges than county 
 officers." 
 
 Where the bridge had been examined by the proper officers two 
 months before the accident, and there' was nothing in the general 
 appearance of the timber or of the bridge to indicate any weakness, it 
 was held that the defendant had neither a constructive notice nor con- 
 structive knowledge that the stringer which gave way was defective. 
 And the court says : " While the age of a bridge may suggest proba- 
 ble infirmity, and impose the duty of inspection upon a township, and 
 its condition may be such as to charge the township with knowledge, 
 yet the township cannot be charged with knowledge or notice in the 
 absence of anything that is suggestive of weakness, and in spite of 
 the lack of knowledge of or notice to either its agents or the general 
 
THE LIABILITY EELATIVE TO BRIDGES. 95 
 
 bridge, a municipal corporation is bound to take such 
 steps as may reasonably be necessary to have the structure 
 repaired or to have public travel thereon stopped. And 
 it is entitled to such further time as may be reasonably 
 required in which to take the proper precautions to pre- 
 vent injuries to travellers, before liability will attach. 
 Whether or not, therefore, there be any Uability in a 
 given case of this class, turns upon the question whether 
 the defendant corporation used due diligence after notice 
 or knowledge of the defect to guard against accident.^ 
 
 public, while at the same time positive acts on the part of the town- 
 ship are shown indicating proper care and careful inspection." 
 O'Neil V. Deerfield Township, 86 Mich. 610, 614 (1891), (49 N. W. 
 Rep. 596). 
 
 1 Allen County v. Bacon, 96 Ind. 31 (1884) ; Ferguson v. Davis 
 County, 57 la. 601, 610 (1881), (10 N. W. Rep. 906) ; Blank v. Livo- 
 nia Township, 79 Mich. 1, 5 (1889), (44 N. W. Rep. 157); Jaquish v. 
 Ithaca, 36 Wis. 108, 111 (1874). 
 
96 LIABILITY OP MUNICIPAL COKPORATIONS FOE TORT. 
 
 CHAPTER VI. 
 
 THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 
 
 Part I. 
 The Liability growing out of their Construction, 
 
 § 63. The Nature of the Duty to construct Public Ways 
 — The Failure to perform it. — The general power to con- 
 struct streets and highways which is usually conferred 
 upon municipal corporations either by charter ^ or by stat- 
 utory provision, carries with it no absolute obligation. Its 
 exercise is rather conditioned upon the determination of 
 numerous questions which are necessarily left to the judg- 
 ment and discretion of those municipal authorities to whom 
 it is intrusted. It is for them to decide whether or not 
 a proposed way is necessary ; and if deemed necessary, to 
 determine its location, its dimensions, its grade, and like 
 particulars. The duty growing out of the possession of 
 this power is, therefore, treated as legislative or judicial 
 in character, and the courts extend to the acts done in its 
 performance, if they be not negligent, that some rule of 
 immunity which affords freedom of action and protection 
 to the legislator and the judge. 
 
 Consequently it has been held that municipal corpora- 
 tions cannot be made at common law to respond in damages 
 for any failure or omission to exercise their power to con- 
 
 1 " The charter of a municipal corporation is a public act, of which 
 the courts take judicial notice, without any recital of its provisions in 
 the pleadings." Albrittin v. Huntsville, 60 Ala. 486, 492 (1877). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 97 
 
 struct public ways. ^ And, furthermore, it is generally con- 
 ceded to be the rule that when the proper municipal officials 
 have passed upon the necessity of any proposed street or 
 highway, their decision is final, and cannot properly at any 
 subsequent time be submitted to a jury for revision.^ 
 
 § 64. The Consequential Damages arising from the Con- 
 struction of Streets and Highways. — When municipal cor- 
 porations, acting under an authority contained in their 
 charters or conferred upon them by the legislature by 
 some general or special act, proceed to lay out, grade, and 
 pave streets and highways, if they exercise proper care 
 and skill in the work and do not exceed the authority 
 given them, they are not answerable at common law for 
 any consequential damages that may be sustained by those 
 property owners whose land is bounded by such streets and 
 highways.^ All such damages are simply such as are nec- 
 
 1 Aurora v. Pulfer, 56 111. 270, 273 (1870) ; Williams v. Grand 
 Rapids, 59 Mich. 51 (1886), (26 N. W. Rep. 279) ; Hines v. Lockport, 
 50 N. Y. 236 (1872); Urquhart v. Ogdensburg, 91 N. Y. 67, 71 (1883); 
 Seymour v. Salamanca, 137 N. Y. 364 (1893), (33 N. E. Rep. 304) ; 
 Easton v. Naff, 102 Pa. St. 474, 477 (1883). 
 
 2 Easton v. Neff, 102 Pa. St. 474 (1883). 
 
 " Arkansas. Simmons v. Camden, 26 Ark. 276 (1870). 
 
 California. Shaw v. Crocker, 42 Cal. 435 (1871). 
 
 Connecticut. Clark v. Saybrook, 21 Conn. 313 (1851); Burritt v. 
 New Haven, 42 Conn. 174 (1875) ; Fellowes v. New Haven, 44 Conn. 
 240 (1876). 
 
 Delaware. Clark v. Wilmington, 5 Harr. 243 (1849) ; Magarity v. 
 Wilmington, 5 Houst. 530 (1879). 
 
 Florida. Dorman v. Jacksonville, 13 Fla. 538 (1870). 
 Georgia. Rome v. Omberg, 28 Ga. 46 (1859) ; Fuller v. Atlanta, 66 
 Ga. 80 (1880). 
 
 Illinois. Murphy v. Chicago, 29 HI. 279 (1862) ; Quincy v. Jones, 
 76 111. 231 (1875). 
 
 Indiana. Snyder v. Rockport, 6 Ind. 237 (1855) ; Lafayette v. 
 Spencer, 14 Ind. 399 (1860) ; Maoy v. Indianapolis, 17 Ind. 267 (1861); 
 Terre Haute v. Turner, 36 Ind. 522 (1871). 
 
 Iowa. Russell v. Burlington, 30 la. 262, 267 (1870) ; Freburg v. 
 
 7 
 
98 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 essarily incident to the exercise of a legislative or judicial 
 power which is proper in itself, and, in conformity to the 
 general principle in such cases, are treated as damnum 
 absque injuria. This common law doctrine has been 
 almost universally recognized and applied both in England 
 
 Davenport, 63 la. 119 (1884), (18 N. W. Rep. 705) ; Morris v. Council 
 Bluffs, 67 la. 343 (1885), (25 N. W. Rep. 274). 
 
 Kentucky. Keasy v. Louisville, 4 Dana, 154 (1836). 
 
 Louisiana. Reynolds v. Shreveport, 13 La. An. 426 (1858) ; Ben- 
 nett V. New Orleans, 14 La. An. 120 (1859). 
 
 Maine. Hovey v. Mayo, 43 Me. 322 (1857). 
 
 Maryland. Horn v. Baltimore, 30 Md. 218 (1868). 
 
 Massachusetts. Callender v. Marsh, 1 Pick. 418 (1823) ; Flagg v. 
 Worcester, 13 Gray, 601 (1859). 
 
 Michigan. Pontiac v. Carter, 32 Mich. 164 (1875) ; Ashley v. Port 
 Huron, 35 Mich. 296 (1877). 
 
 Minnesota. Alden v. Minneapolis, 24 Minn. 254 (1877). 
 
 Mississippi. White v. Yazoo City, 27 Miss. 357 (1854). 
 
 Missouri. St. Louis v. Gurno, 12 Mo. 414 (1849) ; Taylor v. St. 
 Louis, 14 Mo. 20 (1851) ; Imler v. Springfield, 55 Mo. 119 (1874) ; 
 Stewart v. Clinton, 79 Mo. 603 (1883). 
 
 Nebraska. Nebraska City v. Lampkin, 6 Neb. 27 (1877). 
 
 New Jersey. Quinn v. Paterson, 27 N. J. L. 35 (1858). 
 
 New York. Wilson e. Mayor, etc. of New York, 1 Den. 595 
 (1845) ; Radcliff v. Brooklyn, 4 N. Y. 195 (1850) ; Kavanagh i;. 
 Brooklyn, 38 Barb. 232 (1862). 
 
 Pennsylvania. Green v. Reading, 9 Watts, 382 (1840); The 
 Mayor v. Randolph, 4 W. & S. 514 (1842); O'Connor v. Pitts- 
 burg, 18 Pa. St. 187 (1851) ; Carr v. Northern Liberties, 35 Pa. St. 
 324 (1860) i Reading v. Keppleman, 61 Pa. St. 233 (1869) ; AUentown 
 V. Kramer, 73 Pa. St. 406 (1873). 
 
 Rhode Island. Rounds v. Mumford, 2 R. 1. 154 (1852) ; Wakefield 
 V. Newell, 12 R. I. 75 (1878). 
 
 Tennessee. Humes v. Knoxville, 1 Humph. 403 (1839). 
 
 Wisconsin. Dore v. Milwaukee, 42 Wis. 108 (1873). 
 
 District of Columbia. Herring v. District of Columbia, 3 Mackey, 
 572 (1885). 
 
 United States. Goszler v. Georgetown, 6 Wheat. 593 (1821) ; Smith 
 V. Washington, 20 How. 135 (1857) ; Transportation Co. v. Chicago, 
 99 U. S. 635 (1878). 
 
 England. British Cast Plate Mfr. Co. v. Meredith, 4 T. Rep. 794 
 (1792); Dixon v. Board of Works, L. R. 7 Q. B. D. 418 (1881). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 99 
 
 and in this country ; the decisions in Ohio constitute, as 
 it appears, the solitary exception. 
 
 The power to grade and improve streets and highways is 
 in its nature a continuing power. It is not exhausted 
 when once used ; but it may be exercised as often as the 
 municipal authorities to whom it is intrusted, in the exer- 
 cise of their sound judgment and discretion, determine that 
 the public welfare demands it. The common law rule, 
 therefore, remains the same, even though the grade of the 
 street in question has been once established and the abut- 
 ting property owners have made their premises conform to 
 it. "The particular hardship," says Mr. Justice Cooley, 
 "may be made more manifest, but the principle is not 
 affected by the circumstance that the grade of the street 
 had once before been fixed, and that the plaintiff had 
 built with reference to it. This might be a reason for the 
 exercise of great caution and prudence in determining 
 upon a change, but it could neither deprive the city of the 
 power to establish a new grade, nor could it bring into 
 the case any new elements which could constitute the 
 basis of a right of action. . . . There is precisely the 
 same reason and the same justification for changing a 
 grade once established, when the public convenience is 
 found to require it, that there was in fixing a grade in the 
 first place where it was then believed it would subserve 
 the public convenience. " ^ 
 
 1 Pontiae v. Carter, 32 Mich. 164, 171 (1875). For additional oases 
 on this point see above citations. 
 
 In Pontiae v. Carter, 32 Mich. 164 (1875), at page 172, Mr. Justice 
 Cooley gives this explanation of the rule : " The injury in aU these 
 cases is incidental to an exercise of public authority, -which in itself 
 must be assumed to be proper, because it is had by a public body 
 acting within its jurisdiction, and not charged with malice or want of 
 good faith. It must, therefore, be regarded as an injury that every 
 citizen must contemplate as one that with more or less likelihood 
 might happen. When the land was taken for the street, if damages 
 
100 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TORT. 
 
 In several states, however, this common law rule has 
 been changed by legislative enactment, and it is now 
 provided either by statutory or constitutional provision 
 that compensation shall be given in such cases to the in- 
 jured property owners. ^ 
 
 § 65. The Ohio Doctrine. — The decisions in Ohio upon 
 this subject recognize distinctly the right of a municipal 
 corporation, acting under a proper authority, to grade and 
 improve its streets and highways. There is no departure 
 from the cases in other jurisdictions so far as this point 
 is concerned. But the decisions in Ohio also recognize, 
 as a distinct and important element, that the exercise of 
 
 were assessed, they would cover this possible injury, and it could 
 never be known subsequently, that the jury in estimating them did 
 not calculate upon a change in the grade of the proposed street as 
 probable, and attach considerable importance to it in their estimate. 
 It is matter of common observation that much beyond the value 
 of land taken is sometimes given in these cases ; not because of any 
 present injury, but because contingencies cannot be fully foreseen. 
 And the rule in such cases is, that all possible damages are covered by 
 the award, except such as may result from an improper or negligent 
 construction of the public work, or from an excess of authority in 
 constructing it. In other words, the award covers all damages result- 
 ing from the doing in a proper manner whatever the public au- 
 thorities have the right to do; but it does not cover injuries from 
 negligence, or from trespasses." 
 
 1 Connecticut. Healey v. New Haven, 49 Conn. 394 (1881). 
 
 Georgia. Moore v. Atlanta, 70 Ga. 611 (1883). 
 
 Indiana. Wabash v. Alber, 88 Ind. 428 (1882). 
 
 Iowa. Noyes v. Mason City, 53 la. 418 (1880), (5 N. W. Rep. 593) ; 
 Phillips V. Council Bluffs, 63 la. 576 (1884), (19 N. W. Rep. 672). 
 
 Maryland. Gregg v. Baltimore, 56 Md. 256 (1881). 
 
 Massachusetts. Burr v. Leicester, 121 Mass. 241 (1876) ; Lane ». 
 Boston, 125 Mass. 519 (1878). 
 
 Minnesota. McCarthy v. St. Paul, 22 Minn. 527 (1876). 
 
 Nebraska. Harmon ». Omaha, 17 Neb. 548 (1885), (23 N. W. 
 Rep. 503). 
 
 Pennsylvania. Pusey v. Allegheny, 98 Pa. St. 522 (1881). 
 
 Wisconsin. Tyson v. Milwaukee, 50 Wis. 78 (1880), (5 N. W. Rep. 
 914). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 101 
 
 that power may involve peculiar hardships; that it may 
 impose unusual and unavoidable burdens upon abutting 
 landowners who have improved their property in good 
 faith. This consideration appears to furnish the key to 
 the Ohio doctrine. 
 
 It is held, in the first place, that the owner of unim- 
 proved property, and the property owner who has not used 
 reasonable care and judgment in making his improve- 
 ments with reference to the right of municipal corpora- 
 tions to make a reasonable and proper grade, are both 
 alike not entitled to compensation for injuries occasioned 
 by the exercise by such corporations of the power to grade 
 and improve their streets and highways, provided reason- 
 able care and skill were exercised in order to prevent 
 damage.^ The reason of this rule against these two 
 classes of property owners is stated to be because those 
 of the first class — the owners of unimproved property — 
 are presumed to purchase their lots with a view to a 
 future improvement of the street in such a reasonable 
 manner as the public authorities may deem expedient; 
 because those of the second class — the negligent and 
 indiscreet property owner — cannot make the corporation 
 responsible for their own carelessness and indiscretion, if 
 by ordinary care and discretion they might have antici- 
 pated the grade. 
 
 Up to this point the practical effect of the Ohio doc- 
 trine differs little, if at all, from that reached by the 
 decisions in those jurisdictions where the usual rule is 
 applied. But beyond this point there is a wide differ- 
 ence. The idea that the power to grade and improve is 
 in such manner a continuing power that it may be exer- 
 cised a second or a third time without regard to the 
 improvements that the abutting lot owners have made in 
 1 Crawford v. Delaware, 7 Oh. St. 459 (1857). 
 
102 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 good faith, and with the same immunity as in the first 
 instance if the public welfare and convenience demand 
 it, is emphatically repudiated. Instead the rule is laid 
 down that if the grade of a street has been fixed by the 
 municipal authorities, and an abutting property owner 
 has in good faith erected a building upon his lot with a 
 view to the established grade, and the corporation after- 
 wards cuts down the grade of the street for the conven- 
 ience and welfare of the public, such a property owner 
 has a remedy at common law for the injury that he may 
 suffer thereby, even though the corporation exercised 
 proper care and skill in executing the work, and did not 
 exceed the authority conferred upon it.* 
 
 This rule is based upon the theory that an abutting lot 
 owner in such a case has acquired a certain right of prop- 
 erty in the street as incident to his lot; a sort of ease- 
 ment appendant to the lot. Hence any change in grade 
 in the street amounts, on this theory, to an invasion of 
 a private right, which is in effect equivalent to a taking 
 of private property for a public use. The case is thus 
 brought within the spirit, at least, of that provision of 
 the constitution which requires compensation to be given 
 for private property taken for public uses. All this is 
 made very clear by Mr. Justice Swan in Crawford v. 
 
 1 McCombs V. Akron, 15 Oh. 474 (1846), overruling Hiokox v. 
 Cleveland, 8 Oh. 543 (1838) ; Crawford v. Delaware, 7 Oh. St. 459 
 (1857) ; Cincinnati, etc. Street Ky. Co. v. Cumminsville, 14 Oh. St. 
 523 (1863) ; Cincinnati v. Penny, 21 Oh. St. 499 (1871) ; Youngstown 
 V. Moore, 30 Oh. St. 183 (1876) ; Akron v. Chamberlain Company, 34 
 Oh. St. 328 (1878) ; Keating v. Cincinnati, 38 Oh. St. 141 (1882). 
 
 But see Scovil v. Geddings, 7 Oh. 211 (1836), which holds that the 
 commissioners who did the work of grading a street were not liable 
 for the consequential damages resulting therefrom. This decision, 
 says Mr. Justice Swan in Crawford v. Delaware, 7 Oh. St. 459 (1857), 
 at page 464, " has never been overruled, and remains the law of this 
 state." 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 103 
 
 Delaware, where he says : " Distinct from the right of 
 the public to use a street, is the right and interest of the 
 owners of lots adjacent. The latter have a peculiar inter- 
 est in the street, which neither the local nor the general 
 public can pretend to claim : a private right of the nature 
 of an incorporeal hereditament, legally attached to their 
 contiguous grounds, and the erections thereon ; an inci- 
 dental title to certain facilities and franchises, assured to 
 them by contracts and by law, and without which their 
 property would be comparatively of little value. This 
 easement, appendant to the lots, unlike any right of one 
 lot owner in the lot of another, is as much property as 
 the lot itself." 1 
 
 § 66. Where the ■work of constructing Streets and High- 
 ways is done negligently. — The actual manual labor in- 
 volved in grading and improving streets and highways is 
 purely ministerial in character. It involves the exercise 
 of no judgment or discretion on the part of the municipal 
 authorities ; it requires no deliberation for its accomplish- 
 ment. When therefore the manual work of construction 
 begins, the reason for the application of the usual rule 
 of immunity ceases, and municipal corporations are held 
 responsible in damages for the consequences of their 
 negligence or lack of due skill in performing the actual 
 work of grading and improving.^ 
 
 § 67. Where the Work of constructing Streets and High- 
 ways results in a taking of Private Property. — The immu- 
 nity extended by the common law to the consequences 
 resulting from the exercise of legislative or judicial 
 
 1 Crawford v. Delaware, 7 Oh. St. 459 (1857), at page 469. 
 
 2 Roberts v. Chicago, 26 111. 249 (1861); Nevins v. Peoria, 41 111. 
 502(1866); Princeton v. Gieske, 93 Ind. 102 (1883); Hendershott v. 
 Ottumwa, 46 la. 658 (1877); Perry v. Worcester, 6 Gray (Mass.), 544 
 (1856); Nichols v. St. Paul, 44 Minn. 494 (1890), (47 N. W. Rep. 
 168) ; Wegmann v. Jefferson, 61 Mo. 55 (1875) ; Meares v. Wilming- 
 
104 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TOET. 
 
 power is based upon an assumption that such conse- 
 quences are lawful in character, and that the acts from 
 which they flowed might be lawfully authorized. This 
 assumption obviously cannot be entertained where the 
 acts done are of such a character as to constitute a posi- 
 tive invasion of those individual rights that the consti- 
 tution guarantees. Legislative sanction cannot, in such 
 cases, afford a protection to the corporation engaged in 
 performing such acts from the legal consequences of them. 
 It is generally held, therefore, that if the acts of a munici- 
 pal corporation, done in the course of grading and im- 
 proving its streets and highways, are of such a nature as 
 to amount to a taking of the abutting lot owner's prop- 
 erty or property rights, even though they may have been 
 done with proper care and skill, the corporation is bound 
 to compensate him therefor.^ Thus, where the result of 
 the work is to collect surface water and pour it in a body 
 upon the plaintiff's premises, or to deposit mud or other 
 foreign substances thereon, the corporation is bound to 
 respond in damages." Cases of this class are, however, 
 to be distinguished from those where the conseq'uence of 
 the work is simply to cause surface water to flow on to 
 the plaintiff's premises, though not to collect and dis- 
 charge it thereon in a body. In the latter class of cases 
 
 ton, 9 Ired. L. (N. C.) 73 (1848) ; Easton v. NefE, 102 Pa. St. 474 
 (1883). 
 
 In North Vernon v. Voegler, 103 Ind. 314 (1885), (2 N. E. Kep. 
 821), the defendant city was held liable for negligence in devising the 
 plan in accordance with which the grading of a street was done. As 
 to this point see also Gould v. Topeka, 32 Kan. 485 (1884), (4 Pac. 
 Kep. 822). 
 
 1 Kemper v. Louisville, 14 Bush (Ky.), 87 (1878). 
 
 2 Nevins v. Peoria, 41 111. 502 (1806) ; Aurora v. Keed, 57 III. 29 
 (1870) ; Bloomington v. Brokaw, 77 111. 194 (1875) ; Inman v. Tripp, 
 11 R. I. 520 (1877). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 105 
 
 the usual rule of immunity ordinarily affords complete 
 protection to the corporation.^ 
 
 § 68. Wliere the Corporation, in the Work of construct- 
 ing Streets and Highv^ays, fails to follow the Authority 
 given. — In. order that legislative sanction may be effect- 
 ual as a protection to municipal corporations from respon- 
 sibility for acts done, it is essential that the authority 
 conferred should be strictly followed. Otherwise the acts 
 done rest upon no basis of authority, and are conse- 
 quently without legal justification. Hence if a municipal 
 corporation, in the course of grading and improving its 
 streets and highways, fails to comply with the provisions 
 contained in its charter or in the statute from which it 
 derives its authority to perform the work, it is respon- 
 sible for the injurious consequences of that work.'^ 
 
 Part II. 
 The Liability growing out of their Maintenance. 
 
 A. The Liability. 
 5 69. The Common Law Rule as to Quasi Corporations. — 
 As has been already noted, ^ pure quasi corporations are 
 
 1 Clark V. Wilmington, 5 Harr. (Del.) 243 (1849) ; Roll v. Augusta, 
 34 Ga. 326 (1866) ; Cummins v. Seymour, 79 Ind. 491 (1881); Russell 
 U.Burlington, 30 la. 262, 267 (1870); Morris v. Council Bluffs, 67 
 la. 343 (1885), (25 N. W. Rep. 274) ; Flagg v. Worcester, 13 Gray 
 (Mass.), 601 (1859) ; Lee v. Minneapolis, 22 Minn. 13 (1875) ; St. 
 Louis V. Gurno, 12 Mo. 414 (1849) ; Stewart v. Clinton, 79 Mo. 603 
 (1883) ; Kavanagh v. Brooklyn, 38 Barb. (N. Y.) 232 (1862); Wake- 
 field V. Newell, 12 R. L 75 (1878). 
 
 2 Delphi V. Evans, 36 Ind. 90 (1871) ; Crossett v. Janesville, 28 
 Wis. 420 (1871). 
 
 In Delphi v. Evans, 36 Ind. 90 (1871), the city cut down the grade 
 of one street for the purpose of obtaining gravel with which to raise 
 
 8 See § 3, ante. 
 
106 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 simply territorial and political divisions of the state, — 
 the agencies which the state has brought into existence 
 without the consent of their inhabitants, that it may 
 through them the better perform locally those duties which 
 it owes to all citizens alike. The duty of maintaining in 
 proper condition the highways within their limits stands 
 upon exactly the same footing as all the other duties 
 which the state performs through these agencies. It 
 is, so far as quasi corporations are concerned, a purely 
 public, governmental duty to be performed by them for 
 the general welfare of the whole public, and not for the 
 private advantage of the particular section. Little differ- 
 ence in opinion as to this point is to be found either in 
 England or in this country. And since the decision in 
 England in 1788 of Russell v. The Men of Devon, ^ it 
 has generally been conceded to be the rule that counties 
 and other quasi corporations are not liable to a private 
 action at the suit of a party injured by reason of the 
 neglect of their officials to keep their highways in a 
 reasonably safe condition, unless such action is expressly 
 given by statute. 
 
 the grade of another street, without first passing an order for the im- 
 provement of the first street. It was held that the city had no right 
 to cut down the grade of the first street under such circumstances, and 
 was liable for the damages resulting therefrom. If it had made an 
 order and prepared a plan for the improvement of both streets, then 
 the usual rule of immunity would have appUed. 
 
 1 2 Term Rep. 667 (1788). 
 
 ^ Alabama. Covington County v. Kinney, 45 Ala. 176 (1871) ; 
 Askew V. Hale County, 54 Ala. 639 (1875). 
 
 Arkansas. Granger v. Pulaski County, 26 Ark. 37 (1870). 
 
 California. Huffman v. San Joaquin County, 21 Cal. 426 (ISG.S). 
 
 Colorado. El Paso County v. Bish, 18 Col. 474 (1893), (33 Pac. 
 Rep. 184). 
 
 Connecticut. Chidseyu. Canton, 17 Conn. 475 (1846). 
 
 Idaho. Davis v. Ada County, 47 Pac. Rep. 93 (1896). 
 
 Illinois. Waltham v. Kemper, 55 111. 346 (1870), overruling South 
 
THE LIABILITY EELATITE TO STREETS AND HIGHWAYS. 107 
 
 The only decisions at variance with this general rule, 
 which represent the present state of the law, are to be 
 found in Iowa, Maryland, and Pennsylvania. In Mary- 
 land and Pennsylvania public corporations of this class 
 are held liable at common law on general principles, for 
 
 Ottawa V. Foster, 20 111. 296 (1858); White v. Bond County, 58 111. 
 297 (1871). 
 
 Indiana. Fulton County v. Rickel, 106 Ind. 501 (1886), (7 N. E. 
 Kep. 220) ; Abbett v. Johnson County, 114 Ind. 61 (1887), (16 N. E. 
 Rep. 127). 
 
 Iowa. Soper v. Henry County, 26 la. 264 (1868). 
 
 Kansas. Eikenberry v. Township of Bazaar, 22 Kan. 556 (1879) ; 
 Marion County v. Riggs, 24 Kan. 255 (1880). 
 
 Kentucky. Wheatly v. Mercer, 9 Bush, 704 (1873). 
 
 Louisiana. King i;. Police Jury, 12 La. An. 858 (1857). 
 
 Massachusetts. Mower v. Leicester, 9 Mass. 247 (1812). 
 
 Mississippi. Sutton v. Board of Police, 41 Miss. 236 (1866). 
 
 Missouri. Reardon v. St. Louis County, 36 Mo. 555 (1865) ; Clark 
 V. Adair County, 79 Mo. 536 (1883). 
 
 New Hampshire. Farnum v. Concord, 2 N.H. 392 (1821); Wheeler 
 V. Troy, 20 N. H. 77 (1849), is contra. But in Eastman v. Meredith, 
 36 N. H. 284 (1858), at page 300, the court questioned the correctness 
 of the decision in Wheeler v. Troy, and expressed itself as feeling at 
 liberty to reverse it, but was not called upon to do so at that time. 
 The doctrine of Farnum v. Concord was, however, reaflSrmed. 
 
 New Jersey. Chosen Freeholders v. Strader, 18 N. J. L. 108 
 (1840). 
 
 New York. Uorejv. Newfane, 8 Barb. 645 (1850). 
 
 North Carolina. White v. Chowan County, 90 N. C. 437 (1884). 
 
 North Dakota. Vail v. Amenia, 4 N. Dak. 239 (1894), (59 N. W. 
 Rep. 1092). 
 
 Oregon. Templeton v. Linn County, 22 Oreg. 313 (1892), (29 Pac. 
 Rep. 795). 
 
 South Dakota. Bailey v. Lawrence County, 5 S. Dak. 393 (1894), 
 (59 N. W. Rep. 219). 
 
 Tennessee. Wood v. Tipton County, 7 Baxter, 112 (1874). 
 
 Vermont. Baxter v. Winooski Turnpike Co., 22 Vt 114, 123 (1849), 
 semble. 
 
 Washington. Clark v. Lincohi County, 1 Wash. 518 (1889), (20 
 Pac. Rep. 576). 
 
 England. RusseU v. Men of Devon, 2 Term Rep. 667 (1788). 
 
108 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 injuries due to defects in their highways ;i while in Iowa 
 their common law liability relative to highways is re- 
 stricted to the neglect to maintain in reasonably safe 
 condition county bridges.^ This latter rule was formerly 
 the law in Indiana,^ but in 1895 it was re-examined by 
 the Supreme Court and overruled.* 
 
 § 70. The Common Law Rule as to Municipal Corpora- 
 tions proper. — The question whether or not municipal 
 corporations proper are liable at the suit of a private 
 individual injured by a defect in their public ways, in 
 the absence of a statute expressly declaring such liability, 
 has called forth much elaborate, and in some instances 
 heated, discussion. The practical result of it all may be 
 summed up in the statement that the courts of highest 
 resort in a large majority of the states have recognized and 
 repeatedly enforced the doctrine that municipal corpora- 
 tions proper, having under their charters or by statute 
 provision the exclusive care and control of the streets and 
 highways within their territory, and having at their dis- 
 posal the means for maintaining them in proper condi- 
 tion, are responsible at common law for injuries arising 
 from their neglect to keep them reasonably safe for public 
 
 1 Anne Arundel County v. Duokett, 20 Md. 468 (1863) ; Calvert 
 County u. Gibson, 36 Md. 229 (1872) ; Baltimore County v. Baker, 44 
 Md. 1 (1875) ; Hartford County v. Hamilton, 60 Md. 340 (1883) ; 
 Prince George's County v. Burgess, 61 Md. 29 (1883) ; Dean v. New 
 Milford Township, 5 W. & S. (Pa.) 545 (1843) ; Burrell Township v. 
 Uncapher, 117 Pa. St. 353 (1887), (11 Atl. Rep. 619) ; Shadier v. Blair 
 County, 136 Pa. St. 488 (1890), (20 Atl. Rep. 539). 
 
 2 Wilson V. Jefeerson County, 13 la. 181 (1862) ; Hufl v. Powe- 
 shiek County, 60 la. 529 (1883), (15 N. W. Rep. 418). For additional 
 oases, see page 4, note 1, ante. 
 
 8 House V. Montgomery County, 60 Ind. 580 (1878), and oases 
 cited page 4, note 1, ante. 
 
 1 Jasper County v. AUman, 142 Ind. 573 (1895), (42 N. E. Rep. 
 206). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 109 
 
 travel.^ Especially in the Middle and Western States are 
 the authorities quite uniform in support of this doctrine. 
 
 1 Alabama. Smoot v. Wetumpka, 24 Ala. 112 (1854) ; Albrittin v. 
 Huntsville, 60 Ala. 486 (1877) ; Selma v. Perkins, 68 Ala. 145 (1880). 
 
 Colorado. Denver v. Dunsmore, 7 Col. 328 (1884), (3 Pac. Kep. 
 705) ; Boulder v. Niles, 9 Col. 415 (1886), (12 Pac. Rep. 632). 
 
 Dakota. Larson v. Grand Forks, 3 Dak. 307 (1884) (19 N. W. Rep. 
 414). 
 
 Delaware. Anderson v. Wilmington, 8 Houst. 516 (1889), (19 
 Atl. Rep. 509). 
 
 Florida. Tallahassee v. Fortune, 3 Fla. 19 (1850) ; Jacksonville 
 V. Drew, 19 Fla. 106 (1882). 
 
 Georgia. Parker v. Macon, 39 Ga. 725 (1869) ; Rome v. Dodd, 58 
 Ga. 238 (1877) ; Greensboro v. McGibbony, 93 Ga. 672 (1894), (20 S. E. 
 Rep. 37). 
 
 Illinois. Browning v. Springfield, 17 111. 143 (1855) ; Sterling v. 
 Thomas, 60 111. 264 (1871); Chicago v. Keefe, 114 lU. 222 (1885), 
 (2 N. E. Rep. 267). 
 
 Indiana. Grove v. Fort Wayne, 45 Ind. 429 ; Worthington v. 
 Morgan, 17 Ind. App. 603 (1897), (47 N. E. Rep. 235). 
 
 Iowa. Case v. Waverly, 36 la. 545 (1873); Montgomery v. Des 
 Moines, 55 la. 101 (1880), (7 N. W. Rep. 421); Clark v. Epworth, 56 
 la. 462 (1881), (9 N. W. Rep. 359) ; Beazan v. Mason City, 58 la. 
 233 (1882), (12 N. W. Rep. 279). 
 
 Kansas. Topeka v. Tuttle, 5 Kan. 311 (1870). 
 
 Louisiana. O'Neill v. New Orleans, 30 La. An. (Part I.) 220 
 (1878). 
 
 Maryland. Baltimore v. Marriott, 9 Md. 160 (1856). 
 
 Minnesota. Shartle v. Minneapolis, 17 Minn. 308 (1871) ; Kellogg 
 V. Janesville, 34 Minn. 132 (1885), (24 N. W. Rep. 359) ; Young v. 
 Waterville, 39 Minn. 196 (1888), (39 N. W. Rep. 97). 
 
 Mississippi. Bell v. West Point, 51 Miss. 262 (1875). 
 
 Missouri. Blake v. St. Louis, 40 Mo. 569 (1867) ; Halpin v. Kansas 
 City, 76 Mo. 335 (1882) ; Vogelgesang v. St. Louis, 139 Mo. 127 (1897), 
 (40 S. W. Rep. 653). 
 
 Montana. Sullivan v. Helena, 10 Mont. 134 (1890), (25 Pac. Rep. 
 94) ; McCune v. Missoula, 10 Mont. 146 (1890), (25 Pac. Rep. 442). 
 
 Nebraska. Omaha v. Olmstead, 5 Neb. 446 (1877); Wahoo v. 
 Reeder, 27 Neb. 770 (1889), (43 N. W. Rep. 1145). 
 
 Nevada. McDonough v. Virginia City, 6 Nev. 90 (1870). 
 
 New York. Weet v. Brockport, 16 N. Y. 161 (1857) ; Davenport 
 V. Ruckman, 37 N. Y. 568 (1868) ; Clemence v. Auburn, 66 N. Y. 334 
 
110 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 As uniform in opposition to it are the decisions in the 
 New England States, where, as well as in several other 
 
 (1876) ; Cohen v. Mayor, etc. of New York, 113 N. Y. 532 (1889), (21 
 N. E. Kep. 700) ; Bishop v. Goshen, 120 N. Y. 337 (1890), (24 N. E 
 Rep. 720). 
 
 North Carolina. Bunch v. Edenton, 90 N. C. 431 (1884). 
 
 North Dakota. Ludlow v. Fargo, 3 N. Dak. 485 (1893), (57 N. W 
 Rep. 506). 
 
 Ohio. Dayton v. Pease, 4 Oh. St. 80 (1854) ; Shelby v. Clagett, 46 
 Oh. St. 549 (1889), (22 N. E. Rep. 407). 
 
 Oregon. Sheridan v. Salem, 14 Oreg. 328 (1886), (12 Pac. Rep. 
 925); Farquar v. Roseburg, 18 Oreg. 271 (1890), (22 Pac. Rep. 1103). 
 
 Pennsylvania: Erie v. Schwingle, 22 Pa. St. 384 (1853); Frifcsch 
 V. Allegheny, 91 Pa. St. 226 (1879) ; Brookville v. Arthurs, 130 Pa. 
 St. 501 (1889), (18 Atl. Rep. 1076). 
 
 Tennessee. Memphis v. Lasser, 9 Humph. 757 (1849) ; Knoxville 
 V. Bell, 12 Lea, 157 (1883). 
 
 Texas. Galveston v. Posnainsky, 62 Tex. 118 (1884), distinguish- 
 ing Navasota v. Pearce, 46 Tex. 525 (1877) ; Klein v. Dallas, 71 Tex. 
 280 (1888), (8 S. W. Rep. 90). 
 
 Utah. Levy v. Salt Lake City, 3 Utah, 63 (1881), (1 Pac. Rep. 
 160), semhle. 
 
 Virginia. Noble v. Richmond, 81 Gratt. 271 (1879) ; Orme v. 
 Richmond, 79 Va. 86 (1884). 
 
 Washington. Hutchinson v. Olympia, 2 Wash. Ter. 314 (1884), 
 (5 Pac. Rep. 606); Sutton u. Snohomish, 11 Wash. 24 (1895), (39 Pac. 
 Rep. 273). 
 
 West Virginia. Wilson v. Wheeling, 19 W. Va. 323 (1882) ; Curry 
 V. Mannington, 23 W. Va. 14 (1883). 
 
 United States. Weightman v. Washington, 1 Black, 39 (1861) ; 
 Barnes v. District of Columbia, 91 U. S. 540 (1875) ; Evanston 
 V. Gunn, 99 U. S. 660 (1878) ; Delger v. St. Paul, 14 Fed. Rep. 567 
 (1882). 
 
 In Greensboro v. McGibbony, 93 Ga. 672 (1894), (20 S. E. Rep. 
 37), it was held that although the city's charter might not, in express 
 terms, confer the power or impose the duty to keep its streets in proper 
 condition, yet since it granted the power to raise money for the sup- 
 port of the government and for other purposes, and the city author- 
 ities had exercised corporate functions over the streets, it would be 
 liable to a person injured by its failure to keep them in repair, 
 even though no such right of action was given by its charter or by 
 statute. 
 
THE LIABILITY EELATITE TO STREETS AND HIGHWAYS. Ill 
 
 jurisdictions, the doctrine is firmly established that there 
 is no common law liability in such cases. * 
 
 § 71. The Theory of the Common Law Liability. — Per- 
 haps the most commonly accepted theory — certainly the 
 only one that has received much serious attention from 
 the courts, upon which it has been attempted to explain 
 why municipal corporations proper should be held liable 
 at common law for a neglect to maintain their highways 
 in reasonably safe condition, when quasi corporations are 
 held not to be liable for a neglect of precisely the same 
 duty — is that of a contract growing out of the change in 
 the character of the corporation. The quasi corporation, 
 or a territorial section of it, according to this theory, by 
 voluntarily accepting a special charter or by organizing 
 of its own motion under a general law, impliedly con- 
 
 1 Arkansas. Arkadelphia v. Windham, 49 Ark. 139 (1886), (4 S. W. 
 Eep. 450) ; Ft. Smith v. York, 52 Ark. 84 (1889), (12 S. W. Rep. 157). 
 
 California. Winbigler v. Los Angeles, 45 Cal. 36 (1872) ; Arnold 
 V. San Jos^, 81 Cal. 618 (1889), (22 Pac. Rep. 877). 
 
 Connecticut. Chidsey v. Canton, 17 Conn. 475 (1846) ; Hewison v. 
 New Haven, 37 Conn.-475 (1871). 
 
 Maine. Sanford v. Augusta, 32 Me. 536 (1851) ; Mitchell v. Rook- 
 land, 52 Me. 118 (1860). 
 
 Massachusetts. Mower v. Leicester, 9 Mass. 247 (1812) ; HiU v. 
 Boston, 122 Mass. 344, 857 (1877), semble. 
 
 Michigan. Detroit u. Blackeby, 21 Mich. 84 (1870); MoCutcheon 
 V. Homer, 43 Mich. 483 (1880), (5 N. W. Rep. 668); McArthur u. 
 Saginaw, 58 Mich. 357 (1885), (25 N. W. Rep. 313). 
 
 New Hampshire. Farnum v. Concord, 2 N. H. 392 (1821) ; Clark 
 V. Manchester, 62 N. H. 577 (1883), semble. 
 
 New Jersey. Pray v. Jersey City, 32 N. J. L. 394 (1868). 
 
 Rhode Island. Taylor v. Peckham, 8 R. L 349 (1866). 
 
 South Carolina. Young v. Charleston, 20 S. C. 116 (1883). 
 
 Vermont. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123 
 (1849), semble; Hyde v. Jamaica, 27 Vt. 443 (1855). 
 
 Wisconsin. StilUng v. Thorp, 54 Wis. 528, 532 (1882), (11 N. W. 
 Eep. 906), semble; Daniels v. Racine, 98 Wis. 649 (1898), (74 N. W. 
 Rep. 553). 
 
112 LIABILITY OP MUNICIPAL COEPOEATIONS FOE TOET. 
 
 tracts with the state to faithfully perform all the duties 
 assumed by it, — among them this duty relative to high- 
 ways — the franchise granted being considered in law suffi- 
 cient to support this promise ; and when clothed with all 
 the power and authority necessary to the performance of 
 this duty, it becomes a perfect obligation, enuring to the 
 benefit of every individual who is interested in its per- 
 formance.^ The principle is stated thus in Weet v. 
 Brockport : ^ " Whenever an individual or a corporation, 
 for a consideration received from the sovereign power, 
 has become bound by covenant or agreement, either ex- 
 press 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 negligence. " 
 
 This theory has been vigorously attacked by those who 
 deny the existence of any common law liability of public 
 corporations, whether quasi corporations or municipal cor- 
 porations proper, relative to highways. The impossibil- 
 ity that the act of creation done by the creator — the 
 state — can constitute a contract between it and the being 
 created, is pointed out. And further, it is declared that 
 "it is impossible to find legal warrant for any other 
 ground for distinguishing the liability " of quasi corpora- 
 tions and municipal corporations proper.^ This view is 
 
 1 Jones V. New Haven, 34 Conn. 1 (1867) ; Waltham v. Kemper, 
 55 111. 346, 349, 350 (1870) ; Weet v. Brockport, 16 N. Y. 161 (1857) ; 
 Conrad v. Ithaca, 16 N. Y. 158 (1857) ; Nelson v. Canistoe, 100 N. Y. 
 89 (1885), (2 N. E. Rep. 473) ; Weightman v. Washington, 1 Black 
 (U. S.), 39 (1861). 
 
 ■^ 16 N. Y. 161, 163 (1857). 
 
 a Arkadelphia v. Windham, 49 Ark. 139 (1886), (4 8. W. Rep. 
 450) ; Hewison v. New Haven, 37 Conn. 475 (1871) ; Detroit v. 
 Blaokeby, 21 Mich. 84 (1870). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 113 
 
 ably expressed by Mr. Justice Battle in Arkadelphia v. 
 Windham.i After stating the rule of non-liability of 
 quasi corporations, he says: "The reason for the appli- 
 cation being the same, it is difficult to understand why 
 this rule does not apply and should not be enforced as to 
 incorporated towns and cities. . . . For, like counties, 
 they are a part of the machinery of the state, and are 
 its auxiliaries in the important business of municipal 
 rule and internal administration, and their functions are 
 almost wholly of a public nature. Like counties, their 
 functions, rights and privileges, are under the control 
 of the Legislature, and may be changed, modified . or re- 
 pealed, as a general rule, as the exigencies of the public 
 service or the public welfare demand. Like counties, 
 they can sustain no right or privilege, or their existence, 
 upon anything like a contract between them and the 
 State, because there is not and cannot be any reciprocity 
 of stipulation, and their objects and duties are wholly 
 incompatible with everything of the nature of a compact. 
 The duty of keeping in repair the public highways in 
 their respective limits is imposed on both for the benefit 
 of the public, without any consideration or emolument 
 received by either. Before the incorporation of the town 
 or city the county was charged with the duty of keeping 
 its highways in repair. When the town or city becomes 
 incorporated that duty is transferred to the town or city, 
 from one governmental agency to another. The object, 
 purpose, reason and character of the duty are the same in 
 both cases. This being true, there can be no reason why 
 the town or city shall be any more liable to a private 
 action for neglect to perform this duty than the county 
 previously was, unless the statute transferring the duty 
 
 1 49 Ark. 139 (1886), at page 140 (4 S. W. Kep. 450). 
 8 
 
114 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 clearly manifests an intention in the Legislature to im- 
 pose this liability." 
 
 It may be granted, as pointed out in this quotation, that 
 the change in character from quasi corporation to munici- 
 pal corporation proper affords no reasonable ground upon 
 which to base a difference in liability. The contract 
 theory, if it proves anything, appears to prove too much, 
 for upon it a liability could be established for the breach 
 of any duty undertaken by a municipal corporation proper 
 without regard to the nature of that duty; and this, of 
 course, no court has ever asserted. 
 
 But is it entirely true that " the object, purpose, reason 
 and character of the duty are the same in both cases ? " 
 May there not be a difference in this duty in these partic- 
 ulars when it rests upon a municipal corporation proper 
 and when it rests upon a quasi corporation ? And may 
 not such a difference, if it exists, afford a ground for this 
 distinction in liability ? 
 
 The immunity of a quasi corporation stands upon the 
 ground, not that it is a governmental agency, but that 
 its duty relative to highways is public and governmental ; 
 for though a governmental agency, it will be liable to a 
 private action at common law at the suit of any person 
 who may suffer special damage from the negligent per- 
 formance of any duty that is not public and governmental 
 in nature. ^ Its duty relative to highways, it is submitted, 
 is public and governmental, because, by reason of the 
 wide extent of its territory, the fewness of its inhabitants, 
 the simplicity of the life within its limits, and the ex- 
 ceeding smallness of the volume of business there carried 
 on, the advantage and benefit to be derived from safe and 
 convenient highways enures mainly to the public as a 
 whole, rather than to the particular community. Further- 
 1 See page 7 and citations in note 3. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 115 
 
 more, county highways are largely to facilitate transit 
 and communication from one part of the state to another, 
 rather than to serve the convenience of the particular 
 county. The public as a whole has thus the primary 
 interest, and the county in its corporate capacity, only a 
 secondary interest in their proper maintenance. In the 
 case of the incorporated city or town, however, all the 
 conditions are different. The extent of territory is much 
 smaller; the number of citizens is vastly increased; the 
 life within them is correspondingly complex in its rela- 
 tions and needs ; and the volume of business is immensely 
 increased. Its highways are not in the main to promote 
 transit and communication from place to place within the 
 state, but to facilitate the business and social relations of 
 its own citizens and of those who can be induced to come 
 in for the purpose of entering into business and social 
 relations with them. Safe and convenient streets in the 
 incorporated city or town are thus mainly and primarily 
 for the benefit of them in their private capacity, and only 
 remotely for the advantage of the general public. It may 
 be true that they derive no gain or emolument directly 
 from the performance of this duty, but it is submitted 
 that they do indirectly through the increased prosperity 
 that comes to them by making it more safe and conven- 
 ient for its citizens to pass and repass in the transaction 
 of business, and by thus holding out greater inducements 
 to others to frequent them. In short, the duty of an 
 incorporated city or town to keep its highways in a rea- 
 sonably safe condition more nearly approaches in object, 
 purpose, reason and character to their duty to maintain 
 sewers and like municipal improvements, than to a 
 public, governmental duty. If all this be sound, it 
 may afford a ground for the liability of the municipal 
 corporation proper relative to highways which can be 
 
116 LIABILITY OP MUNICIPAL COEPORATIONS FOB TORT. 
 
 reconciled with the rule of non-liabilitj of the quasi 
 corporation. 
 
 § 72. The Statutory Liability. — In the majority of the 
 states where the existence of a common law liability has 
 been denied, and as well in some states where the com- 
 mon law rule has been recognized, statutes have been 
 enacted imposing upon municipal corporations a liability 
 for injuries due to a defective condition of their high- 
 ways. Since in enforcing this statutory liability much 
 oftentimes turns upon the wording of the act creating it, 
 it may be useful to here note the terms used in the 
 various acts. It is to be observed in the beginning that 
 in all of them, in some form of words, a right of action is 
 given to " any person " who is injured " in person or prop- 
 erty ; " in Michigan alone is the right of action in terms 
 limited to "any person or persons sustaining bodily in- 
 jury." In Connecticut, any person injured "by means of 
 a defective road or bridge may recover damages from the 
 party bound to keep it in repair. " ^ In Maine, any person 
 injured "through any defect or want of repair or suffi- 
 cient railing, in any highway, town way, causeway or 
 bridge may recover for the same."^ In Massachusetts, 
 any person injured "through a defect or want of repair 
 or of sufficient railing in or upon a highway, town way, 
 causeway, or bridge " may recover "the amount of damage 
 sustained."^ In Michigan, any person injured "upon 
 any of the public highways or streets in this state, by 
 reason of the neglect to keep such highways or streets, 
 and all bridges, sidewalks, cross-walks and culverts on 
 the same in reasonable repair, and in condition reasonably 
 safe and fit for travel," may recover damages.^ In New 
 
 1 Gen. Sts., 1888, § 2673. 
 
 2 Rev. Sts., 1883, c. 18, § 80. 
 
 ' Pub. Sts., 1882, c. 52, § 18, and acts in amendment thereof. 
 < How. Annot. Stat. Supp., 1883-1890, §§ 1442-1446 h. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 117 
 
 Hampshire, towns are made liable for damages happen- 
 ing to any person "travelling upon a highway or bridge 
 thereon, by reason of any obstruction, defect, insufficiency, 
 or want of repair which renders it unsuitable for the 
 travel thereon."^ In New Jersey, "if any damage shall 
 happen to any person or persons " by means " of the in- 
 sufficiency or want of repairs of any public road in any of 
 the townships of this state, the person or persons sustain- 
 ing such damage " may recover therefor.^ In New York, 
 "every town shall be liable for all damages to person or 
 property, sustained by reason of any defect in its high- 
 ways or bridges, existing because of the neglect of any 
 commissioner of highways of such town."^ In Rhode 
 Island, towns are liable to any person who may in any 
 wise suffer injury by reason of a " neglect to keep in good 
 repair its highways and bridges."* In South Carolina, 
 any person receiving injury "through a defect or in the 
 negligent repair of a highway, causeway or bridge may 
 recover, in an action against the county, the amount of 
 actual damage sustained. " ^ In West Virginia, " any 
 person who sustains an injury to his person or property 
 by reason of a public road, or bridge, in a county, or by 
 reason of a public road, bridge, street, sidewalk or alley 
 in an incorporated city, village or town, being out of 
 repair, may recover all damages sustained by him by 
 reason of such injury."® In Vermont, "if damage occurs 
 to a person, or his property, by reason of the insufficiency 
 or want of repair of any bridge or culvert which the town 
 is liable to keep in repair, the person sustaining damage 
 
 1 Pub. Sts., 1891, c. 76, § 1. 
 
 2 Gen. Sts., 1895, p. 2844, pars. 192, 193 
 » Laws, 1890, c. 568, § 16, p. 1181. 
 
 * Gen. Laws, 1896, c. 72, §§ 11, 12. 
 « Civ. Sts., 1893, § 1169. 
 
 * Code, 1891, c. 48, § 53. This statute was first enacted in 1887. 
 
118 LIABILITY OP MUNICIPAL CORPORATIONS FOB TORT. 
 
 may recover the same " from such town.^ In Wisconsin, 
 if any damage shall happen to any person "by reason of 
 the insufficiency or want of repair of any bridge, sluice- 
 way or road in any town, city or village the person sus- 
 taining such damage shall have a right to sue for and 
 recover the same against any such town, city or village. " ^ 
 
 In construing these statutes, it is generally considered 
 by the courts that the legislature intended to put no 
 greater burden upon the corporation than the plain mean- 
 ing of the language used indicates. In a word, they are 
 usually construed strictly in favor of the defendant. It 
 is held, therefore, that the liability created by them is 
 not to be extended by construction,^ nor yet by contract;* 
 nor, on the other hand, to be narrowed by implication.^ 
 
 § 73. The Source of the Common Law Liability. — What- 
 ever may be the legal principle upon which it ultimately 
 rests, or if it rests upon no legal principle at all, it seems 
 safe to say that the common law liability of municipal 
 corporations to respond in damages for injuries caused by 
 a defective condition of the streets is directly deducible 
 from the duty which grows out of the possession of that 
 
 1 Stats., 1894, § 3490. Iq 1880, the statute of Vermont that im- 
 posed a liability for defective highways was repealed. See Laws 
 1880, No. 62, amended by Laws 1882, No. 13. Hence there is now 
 no statutory liability for defective highways, except such parts of 
 them as consist of bridges and culverts. See Willard v. Sherburne, 
 59 Vt. 361 (1887), (8 Atl. Rep. 735) ; Wilkins v. Rutland, 61 Vt. 
 386, 339 (1889), (17 Atl. Rep. 735). 
 
 2 Stats., 1898, § 1339. 
 
 8 Bartram v. Sharon, 71 Conn. 686, 694 (1899), (43 Atl. Rep. 143); 
 Moulton V. Sanford, 51 Me. 127, 129 (1862) ; Brown v. Skowhegan, 
 82 Me. 273, 276 (1890), (19 Atl. Rep. 399) ; Detroit v. Putnam, 45 
 Mich. 263 (1881), (7 N. W. Rep. 815); Taylor v. Peokham, 8 R. I. 
 349 (1866). 
 
 4 Rouse V. Somerville, 130 Mass. 361 (1881). 
 
 6 Davis V. Leominster, 1 Allen (Mass.) 182 (1861) ; Noyes v. 
 Gardner, 147 Mass. 505, 508 (1888), (18 N. E. Rep. 423). 
 
THE LIABILITY EBLATIVE TO STEEETS AND HIGHWAYS. 119' 
 
 authority over their streets which is vested in them by 
 charter or statutory provision.^ 
 
 § 74. The Nature and Extent of the Common Law Lia- 
 bility. — ' The duty of municipal corporations relative to 
 highways is not only the source of their common law lia- 
 bility, but as well its measure. Speaking in broad general 
 terms, it is not greater, nor less, but simply commen- 
 surate with that duty. By this standard of measurement 
 it appears, then, that this liability is not absolute. The 
 mere existence of a defect in the highway from which a 
 traveller sustains injury does not alone give him a cause 
 of action. He must go a step further, and show that the 
 existence of that defect was due to negligence on the part 
 of the defendant corporation. Negligence is thus the sole 
 basis and extent of the liability: it does not arise unless 
 and until that appears as an element in the case.^ 
 
 The liability, however, which arises from a breach of 
 this duty rests upon the corporation itself, and cannot be 
 shifted or avoided by any arrangement with third persons. 
 In this regard it is absolute. It affords no defence, there- 
 fore, to show that the existence of the defect was due to 
 the negligence of some person who had assumed the duty 
 of keeping in proper repair that portion of the highway 
 where the accident happened.^ 
 
 B. The Injured Pbrsok. 
 § 75. The Injured Person must show Special Damage. — 
 In order to maintain a private action, either at common 
 
 ' See Albrittin v. Huntsville, 60 Ala. 486 (1877) ; Savannah v. 
 Waldner, 49 Ga. 316, 323 (1873) ; Rehberg v. Mayor, etc. of New 
 York, 91 N. Y. 137, 142 (1883). 
 
 2 Monmouth v. Sullivan, 8 111. App. 50 (1880) ; Hunt v. Mayor, 
 etc. of New York, 109 N. Y. 134, 141 (1888), (16 N. E. Rep. 320) ; 
 Village V. Kallagher, 52 Oh. St. 183 (1894), (39 N. E. Rep. 144). 
 
 « Blake v. St. Louis, 40 Mo. 569, 571 (1867). 
 
120 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 law or under statutes, for an injury caused by the defec- 
 tive condition of a highway, the plaintiff must show that 
 such injury was peculiar to himself, and not common to, 
 or shared in by, the public generally. In the common 
 language of the cases, he must show that he has sustained 
 some special and peculiar damage. And the authorities 
 generally agree that to constitute such special and pecu- 
 liar damage, the injury suffered must differ in kind, and 
 not merely in degree, from that to which all citizens are 
 exposed. Hence it is commonly held that it constitutes no 
 ground of action against a municipal corporation that, by 
 reason of the defective condition of a highway, a person 
 was subjected to personal inconvenience, or was compelled 
 to travel a greater distance, or was delayed or turned 
 back in his journey.^ Even the fact that a person has 
 suffered a loss of trade because of the failure of the 
 corporation to keep the highway upon which his business 
 premises front in proper condition for travel, has been 
 held not to be such special damage as will entitle him to 
 maintain a private action. ^ 
 
 1 Sohn V. Cambern, 106 Ind. 302 (1885), (6 JST. E. Eep. 813); 
 Brant v. Plumer, 64 la. 33 (1884), (19 N. W. Kep. 842); Houck w. 
 Wachter, 34 Md. 265 (1870); Holman v. Townsend, 13 Met. (Mass.) 
 297 (1847) ; Smith v. Dedham, 8 Cush. (Mass.) 522 (1851) ; Griffin v. 
 Sanbornton, 44 N. H. 246 (1862); Gold v. Philadelphia, 115 Pa. St. 
 184 (1886), (8 Atl. Rep. 386). 
 
 z Willard v. Cambridge, 3 Allen (Mass.), 574 (1862); Gold v. 
 Philadelphia, 115 Pa. St. 184 (1886), (8 Atl. Rep. 386); Hale v. 
 Weston, 40 W. Va. 313 (1895), (21 S. E. Rep. 742). 
 
 But where it appeared that in consequence of the construction of a 
 sewer a street was obstructed for several months, during a consider- 
 able part of which time no work on the sewer was done, and that 
 because of this unnecessary prolongation of the work the plaintiffs, 
 who were merchants having a place of business on the street, suffered 
 a material loss of trade, it was held that there was peculiar damage 
 for which the plaintiffs were entitled to recover. Williams v. Tripp, 
 11 R. I. 447 (1877). 
 
 In the New England states municipal corporations are commonly 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 121 
 
 8 76. The Injured Person must be making a Proper Use 
 of the Highway. — It is essential to the right of a person 
 to maintain an action against a municipal corporation for 
 an injury suffered by reason of the defective condition of 
 a highway that it should appear that he was making a 
 proper and legitimate use of the highway at the time of 
 the accident. There seems to ba no controversy in the 
 cases upon this point, whatever differences may be found 
 upon the question what is a proper and legitimate use of a 
 public highway. 
 
 In those states where the liability relative to highways 
 is purely statutory, it is commonly held that municipal 
 corporations are bound to keep their highways in a reason- 
 ably safe condition for the purpose of travel and of travel 
 only. Hence in order to bring his case within this rule 
 it is incumbent upon the injured person to show that he 
 was, at the time of the accident, a traveller upon the 
 highway. 1 If it appears, therefore, that he was injured 
 while outside the travelled path, even though within the 
 way as located,^ or while using the highway solely for 
 
 held not to be liable for such damages as the loss of services, expense 
 of nursing, and the like, which may result to a person because of 
 injuries suffered by wife or child by reason of defects in a highway. 
 Chidsey v. Canton, 17 Conn. 475 (1846) ; Reed v. Belfast, 20 Me. 246 
 (1841) ; Harwood v. Lowell, 4 Cush. (Mass.) 310 (1849). 
 
 1 Maine. Leslie v. Lewiston, 62 Me. 468 (1873) ; Philbrick v. 
 Pittston, 63 Me. 477 (1874) ; Brown v. Skowhegan, 82 Me. 273 (1890), 
 (19 Atl. Rep. 399). 
 
 Massachusetts. Stickney v. Salem, 3 Allen, 374 (1862) ; Hunt v. 
 Salem, 121 Mass. 294 (1876). 
 
 Michigan. Tatman v. Benton Harbor, 115 Mich. 695 (1898), (74 
 N. W. Rep. 187). 
 
 New Hampshire. Ball v. Winchester, 32 N. H. 435 (1855) ; Hardy 
 V. Keene, 52 N. H. 370 (1872). 
 
 Vermont. Sykes v. Pawlet, 43 Vt. 446 (1871). 
 
 Wisconsin. Harper v. Milwaukee, 30 Wis. 365, 371 (1872) ; 
 Hawes v. Fox Lake, 33 Wis. 438 (1873). 
 
 2 Brown u. Skowhegan, 82 Me. 273 (1890), (19 Atl. Rep. 399); 
 
122 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 some other purpose than that of travel,^ there is ordi- 
 narily no liability upon the corporation. 
 
 A somewhat liberal interpretation, however, is given to 
 the term "traveller," as used in the above rule. It does 
 not necessarily include only those persons who were at 
 the moment of the accident engaged simply and solely in 
 passing from one point .to another upon the highway. It 
 may also include persons who were at that moment doing 
 some other act. The test to be applied in order to deter- 
 mine whether or not an injured person was a traveller at 
 the time when he received his injury, so far as any test 
 can be laid down, is, whether his acts at that time could 
 reasonably be regarded as the natural and ordinary inci- 
 dents of travel upon the highway and as consistent with 
 an intention on his part to continue upon and over the 
 highway for the usual and proper purposes of travel. 
 Guided by some such test as this, it has been held that 
 the mere doing of acts in play while passing along the 
 street,^ or the mere stopping for a few moments to watch 
 a parade,^ or to watch boys at play,* or to pick berries by 
 the side of the road,^ there being in each case an inten- 
 tion to proceed along the highway for some purpose, 
 would not deprive the injured person of the character of 
 a traveller. But on the other hand it has been held that 
 if he stops in the highway for a time to engage in conver- 
 
 Kellogg V. Northampton, 4 Gray (Mass.), 65 (1855) ; Sykes v. Pawlet, 
 43 Vt. 446 (1871); Hawes v. Fox Lake, 33 Wis. 488 (1873). 
 
 1 Stinson v. Gardiner, 42 Me. 248 (1856) ; McCarthy v. Portland, 
 67 Me. 167 (1878) ; Blodgett v. Boston, 8 Allen (Mass.), 237 (1864) ; 
 MeDougall v. Salem, 110 Mass. 21 (1872). 
 
 2 Gulline v. Lowell, 144 Mass. 491 (1887), (11 N. E. Rep. 723) ; 
 Graham v. Boston, 158 Mass. 75 (1892), (30 N. E. Rep. 170) ; Reed 
 V. Madison, 83 Wis. 171 (1892), (53 N". W. Rep. 547). 
 
 8 Varney v. Manchester, 58 N. H. 430 (1878). 
 
 * Bliss V. South Hadley, 145 Mass. 91 (1887), (13 N. E. Rep. 352). 
 
 6 Britten v. Cummington, 107 Mass. 347 (1871). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 123 
 
 sation,^ or if he uses the highway solely as a playground, ^ 
 or as a place for the transaction of his business,^ or as a 
 racecourse,* he cannot be considered to be a traveller. 
 
 Whether or not the injured person was at the time of 
 the accident a traveller is a question of fact for the jury 
 to determine upon all the evidence,^ unless the character 
 of his acts at that time make it perfectly clear that he 
 had ceased to use the highway for the proper purposes of 
 travel, in which case it becomes the duty of the court to 
 take the case from the jury.^ 
 
 In those states where the common law liability pre- 
 vails the tendency has been to take a much more liberal 
 view of the question what is a proper and legitimate use 
 of a public highway. It is recognized that, in the ab- 
 sence of any statute dealing with the subject, travel may 
 not be the only use to which a highway can lawfully be 
 put — that there may be other purposes for which a mu- 
 nicipal corporation is bound to keep its public ways in a 
 reasonably safe condition. In accordance with this view 
 it has been held that persons who stop in the highway for 
 the purpose of engaging in conversation,'' and even per- 
 sons who are using the highway as a place in which to 
 perform work,^ may still be within the protection of the 
 
 1 Stickney v. Salem, 3 Allen (Mass.), 374 (1862). 
 
 2 Stinson v. Gardiner, 42 Me. 248 (1856) ; Blodgett v. Boston, 
 8 Allen (Mass.), 237 (1864) ; Tighe v. Lowell, 119 Mass. 472 (1876) ; 
 Lyons v. Brookline, 119 Mass. 491 (1876); Strong v. Stevens Point, 
 62 Wis. 255 (1885), (22 N. W. Rep. 425). 
 
 8 McDougall V. Salem, 110 Mass. 21 (1872). 
 
 * McCarthy v. Portland, 67 Me. 167 (1878). 
 
 5 Hunt V. Salem, 121 Mass. 294 (1876) ; Hardy v. Keene, 52 N. H. 
 370 ( 1872) ; Strong v. Stevens Point, 62 Wis. 255, 266 (1885), (22 
 N. W. Rep. 425). 
 
 « Stickney v. Salem, 8 Allen (Mass), 374 (1862). 
 
 ' Jackson v. Boone, 93 Ga. 662 (1894), (20 S. E. Rep. 46) ; Lang- 
 lois V. Cohoes, 58 Hun (N. Y.), 226 (1890), (11 N. Y. Supp. 908). 
 
 8 Nesbittu. Greenville, 69 Miss. 22 (1891), (10 So. Rep. 452); Reh- 
 
124 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 law. And further, the rule seems to be well established 
 that the fact that a child was, at the time of the accident, 
 playing in the street, will not of itself alone bar a recovery 
 for the injury suffered.^ 
 
 It is ordinarily a question of fact, under the common 
 law rule, whether the use made of the highway by the 
 injured person was proper and legitimate.^ 
 
 § 77. When the Injured Person is, at the Time of the 
 Accident, in the Service of the Defendant Corporation. — 
 Just how far, if at all, a municipal corporation can avail 
 itself of the defence of common employment when sued 
 by a person in its service to recover compensation for 
 injuries suffered by reason of the defective condition of a 
 highway, appears never to have been exactly determined. 
 It has, however, been decided on several occasions that 
 neither members of the fire department ^ nor members of 
 the police department* are co-servants of members of the 
 street department in any such sense as to prevent them 
 
 berg I!. Mayor, etc. of New York, 91 N. Y. 137 (1882). See also upon 
 this subject Diiffy v. Dubuque, 63 la. 171 (1881), (18 N. W. Rep. 
 900). 
 
 1 Illinois. Chicago v. Keefe, 114 111. 222, 227 (1885), (2 N. E. 
 Eep. 267). 
 
 Indiana. Indianapolis v. Emmelman, 108 Ind. 530 (1886), (9 N. E. 
 Kep. 155). 
 
 Missouri. Donoho v. Vulcan Iron Works, 75 Mo. 401 (1882). 
 
 Nebraska. Omaha v. Richards, 49 Neb. 244 (1896), (68 N. W. 
 Rep. 528). 
 
 New York. McGarry r. Loomis, 63 N. Y. 104, 108 (1875); and see 
 also McGuire v. Spense, 91 N. Y. 303 (1883). 
 
 2 Jackson v. Boone, 93 Ga. 662 (1894), (20 S. E. Rep. 46) ; Nes- 
 bitt V. Greenville, 69 Mi.-is. 22 (1891), (10 So. Rep. 452). 
 
 s Turner v. Indianapolis, 96 Ind. 51 (1884) ; Coots v. Detroit, 75 
 Mich. 628 (1889), (43 N. W. Rep. 17) ; Palmer v. Portsmouth, 43 
 N. H. 265 (1861) ; Farley v. Mayor, etc. of New York, 152 N. Y. 222 
 (1897), (46 N. E. Rep. 506). 
 
 4 Kimball v. Boston, 1 Allen (Mass.), 417 (1861) ; Galveston v. 
 Hemmis, 72 Tex. 558 (1889), (11 S. W. Rep. 29). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 125 
 
 from maintaining an action, if injured by a defect in the 
 highway while engaged in the performance of the duties 
 of their office, provided they are at the time in the exer- 
 cise of due care.i And it has been held further that a 
 surveyor of highways can recover damages in such a case, 
 unless the defect that caused his injury was due to his 
 own negligence.^ 
 
 8 78. "When the Injured Person is, at the Time of the Acci- 
 dent, acting in Violation of Statute Law or City Ordinance. — 
 The mere fact that a person injured through a defect in 
 the highway was, at the time of his injury, acting in 
 violation of some statute or of some municipal ordinance 
 is not alone, as a matter of law, conclusive against his 
 right to recover from the responsible municipal corpo- 
 ration compensation for the damage suffered. It is not 
 enough in such a case, therefore, for the defendant cor- 
 poration to show that such person was a violator of some 
 law or ordinance ; to fully exonerate itself from liability, 
 it must show further that his unlawful act contributed 
 directly to produce the injury of which he complained. 
 The important question thus in every case of this class 
 is, not simply whether the injured person was doing some 
 unlawful act when injured, but whether he was at that 
 time guilty of an offence against the law which contrib- 
 uted directly to his injury.^ 
 
 1 Coots V. Detroit, 75 Mich. 628 (1889), (43 N. W. Rep. 17) ; 
 Walker v. Vicksburg, 71 Miss. 899 (1894), (15 So. Rep. 1-32) ; Farley 
 V. Mayor, etc. of New York, 152 N. Y. 222 (1897), (46 N. E. Rep. 
 506). 
 
 2 Wood V. Waterville, 4 Mass. 422 (1808) ; s. c. 5 Mass. 294 
 (1809) ; Todd v. Rowley, 8 Allen (Mass.), 51 (1864). 
 
 ' For cases involving a violation of a city ordinance as to the rate 
 of speed, see Cullman v. McMinn, 109 Ala. 614 (1895), (19 So. Rep. 
 981); Pueblo v. Smith, 3 Col. App. 386, 390 (1893), (33 Pac. Rep. 
 685); Baker v. Portland, 58 Me. 199 (1870); Hall v. Ripley, 119 
 Mass. 135 (1875); Tuttle ». Lawrence, 119 Mass. 276 (1876). The 
 
126 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 C The Highway. 
 § 79. The Place where the Accident happened must be 
 a Highway. — The duty of municipal corporations from 
 which springs their liability relative to ways arises only 
 as to such as are public highways; that is, as to such as 
 have been duly established and opened for the public use. 
 It is an essential element, therefore, in every action to 
 recover damages for injuries suffered upon a travelled 
 way, to show that such way was a public highway, i The 
 burden thus imposed may be sustained by evidence along 
 
 fact that the plaintiff had no actual knowledge of the ordinance is not 
 material in such a case. Heland v. Lowell, 3 Allen (Mass.), 407 (1862). 
 For cases discussing a violation of the law of the road, see O'Neil 
 V. East Windsor, 63 Conn. 150, 155 (1893), (27 Atl. Rep. 237) ; 
 Kidder v. Dunstable, 11 Gray (Mass.), 342 (1858); Smith v. Gardner, 
 11 Gray (Mass.), 418 (1858) ; Damon v. Scituate, 119 Mass. 66 (1875) ; 
 Smith V. Conway, 121 Mass. 216 (1878) ; Norris v. Litchfield, 35 
 N. H. 271 (1857) ; Gale v. Lisbon, 52 N. H. 174 (1872). 
 
 See also Davidson v. Portland, 69 Me. 116 (1879), where the law 
 violated was that relating to intoxicating liquors. 
 
 1 See Bishop v. Centralia, 49 Wis. 669 (1880), (6 N. W. Rep. 353), 
 and cases cited in the following notes. 
 
 Sidewalks are as much a part of the highway as that portion set 
 apart for, and used by, vehicles ; and are consequently as much within 
 the duty to keep in repair. Beardsley v. Hartford, 50 Conn. 529, 538 
 (1883) ; Bloomington v. Bay, 42 111. 503, 506 (1867) ; Frankfort v. 
 Coleman, 19 Ind. App. 368, 372 (1897), (49 JST. E. Rep. 474) ; Furnell 
 V. St. Paul, 20 Minn. 117, 118 (1873); Young v. Waterville, 39 Minn. 
 196 (1888), (39 N. W. Rep. 97). 
 
 " This word ' sidewalk,' as used in this country," says Mr. Justice 
 Collins, in Graham v. Albert Lea, 48 Minn. 201 (1892), at page 205, 
 (50 N. W. Rep. 1108), " does not mean a walk or way constructed of 
 any particular kind of material, or in any special manner, but ordi- 
 narily it is used for the purpose of designating that part of the street 
 of a municipality which has been set apart and is used for pedes- 
 ti-ians, as distinguished from that portion set apart and used for 
 animals and vehicles." 
 
 So bridges are also a part of the highway. Nebraska City v. 
 Campbell, 2 Black (U. S.), 590 (1862). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 127 
 
 any one of several lines ; namely, by evidence tending to 
 show that due proceedings were taken by the proper 
 municipal authorities, in accordance with some law con- 
 ferring the authority, to locate, grade, and open the way ; 
 by evidence tending to show a general and uninterrupted 
 use of the way by the public, continued for the length of 
 time necessary to establish a prescription; by evidence 
 tending to show a dedication of the way to the public by 
 the owner of the soil, and an acceptance of it by the cor- 
 poration. ^ So far as the duty of the corporation is con- 
 cerned, it ordinarily 2 makes no difference in what one of 
 these ways the road became a highway.^ 
 
 § 80. Highways established by Dedication. — Two dis- 
 tinct elements are essential to the establishment of a 
 highway by dedication : first, an appropriation of the soil 
 by the owner to the use of the public for a highway ; and, 
 second, an acceptance of it, either express or implied, by 
 the proper officers of the corporation, acting within the 
 scope of their authority. As a general rule these two 
 acts, as soon as done by the respective parties, complete 
 
 1 Beaudean v. Cape Girardeau, 71 Mo. 392, 396 (1880) ; Stone v. 
 Langworthy, 20 R. I. 602 (1898), 40 Atl. Rep. 832 ; Hyde v. Jamaica, 
 27 Vt. 443 (1855). 
 
 2 In Michigan, under Act No. 264, § 4, Laws of 1887, the right of 
 action is limited to cases -where the injuries were suffered upon public 
 highways which have been in use for ten years. See McKeller v. 
 Monitor Township, 78 Mich. 485 (1889), (44 N. W. Rep. 412). 
 
 It is held in New Hampshire that the plaintiff must show, in order 
 to recover, that the way where the accident happened had been legally 
 laid out in accordance with the statutory requirements, or had been 
 used by the public for twenty years. In the absence of such evidence, 
 the way is not a public highway for the good condition and repair of 
 which the corporation is responsible, or for injuries due to defects in 
 which it can be held liable. Haywood v. Charlestown, 34 N. H. 23 
 (1856) ; Smith v. Northumberland, 36 N. H. 38 (1857) ; Hardy v. 
 Keene, 54 N. H. 449 (1874) ; Tilton v. Pittsfield, 58 N. H. 327 (1878). 
 
 s Phelps V. Mankato, 23 Minn. 276 (1877). 
 
128 LIABILITY OP MUNICIPAL CORPOKATIONS FOE TORT. 
 
 the dedication and establisH the way as a highway: no 
 lapse of time is necessary. ^ 
 
 § 81. Highways established by Prescription. — A con- 
 stant and uninterrupted use and enjoyment of a way by 
 the public, continued for the requisite number of years,^ 
 will establish a highway by prescription, on the theory 
 that a user of such a character raises a conclusive pre- 
 sumption that the way was originally laid out and opened 
 by competent authority. Nothing, therefore, except such 
 user need be shown.^ 
 
 1 Denver v. Clements, 3 Col. 484 (1877) ; Fisk v. Havana, 88 111. 
 208 (1878); Indianapolis v. Kingsbnry, 101 Ind. 200 (1884); Kennedy 
 V. Cumberland, 65 Md. 514 (1886), (9 Atl. Rep. 234); Hobbs y. 
 Lowell, 19 Pick. (Mass.) 405 (1837) ; Hayden v. Stone, 112 Mass. 346 
 (1873) ; McKenna v. Boston, 131 Mass. 143 (1881) ; Wilder v. St. 
 Panl, 12 Minn. 192 (1866) ; Gamble v. St. Louis, 12 Mo. 617 (1849) ; 
 Whitney u. Essex, 42 Vt. 520 (1870) ; Milwaukee v. Davis, 6 Wis. 
 377 (1858). 
 
 In Missouri it is held that the obligation to keep in repair as a 
 highway the soil that has been dedicated by the owner and accepted 
 by the corporation, does not attach until the latter, in some official 
 and appropriate manner, has invited or sanctioned its use by the 
 public as a highway. Such sanction may, however, be given by the 
 acts of its proper officers as well as by acts in the form of ordinances. 
 " To the extent to which the city has sanctioned the use of such land 
 by the public as a thoroughfare may the city justly be held liable for 
 ordinary care to maintain the thoroughfare in reasonable repair for 
 such use." Baldwin v. Springfield, 141 Mo. 205 (1897), (42 S. W. 
 Kep. 717); Taubman v. Lexington, 25 Mo. App. 218 (1887). 
 
 ^ The rule is not uniform in the different states as to what is a 
 sufficient period of user to establish a highway by prescription. It 
 may be said, however, that as a general rule the use of a way for 
 twenty years or more is sufficient for that purpose in most states. 
 Jennings v. Tisbury, 5 Gray (Mass.), 73 (1855); and see cases cited 
 in the following note. 
 
 8 Todd V. Rome, 2 Me. 55 (1822) ; Kennedy v. Cumberland, 65 Md. 
 514, 521 (1886), (9 Atl. Rep. 234), semble; Aston v. Newton, 134 Mass. 
 507 (1883) ; Veale v. Boston, 135 Mass. 187 (1883) ; Beaudean v. 
 Cape Girardeau, 71 Mo. 392, 396 (1880) ; Willey v. Portsmouth, 35 
 N. H. 303, 311 (1857) ; Smith v. Northumberland, 36 N. H. 38 (1857) ; 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 129 
 
 § 82. Highways established in Due Form of Law. — When 
 the legal establishment of a highway by proceedings taken 
 in accordance with charter or statutory provision is 
 directly in issue, it is necessary to show that all the 
 requirements of such provision were exactly followed. 
 The rule, however, is not so strict when the existence of 
 a highway is only collaterally in issue, as is the case in 
 an action to recover damages for an injury suffered by 
 reason of the defective condition of such highway. It is 
 commonly held in all such actions that the injured person 
 cannot be thrown upon an inquiry into the regularity of 
 the proceedings by which the way was originally estab- 
 lished. It is generally sufficient for him to show that the 
 place where the accident happened had been treated by 
 the defendant corporation as a highway, and that travel 
 upon it had been expressly or impliedly invited by the 
 corporate authorities.^ And the fact that repairs had 
 been made by the corporation at the place of the accident 
 
 Speir V. New Utrecht, 121 IST. Y. 420 (1890), (24 N. E. Rep. 692) ; 
 Lemon v. Hayden, 13 Wis. 159 (1860) ; Hart w. Red Cedar, 63 Wis. 
 634, 638 (1885), (24 N. W. Rep. 410). 
 
 1 Illinois. Champaign v. Patterson, 50 111. 61 (1869) ; Mansfield v. 
 Moore, 124 111. 133 (1888), (16 N. E. Rep. 246) ; Marseilles v. How- 
 land, 124 111. 547 (1888), (16 N. E. Rep. 883). 
 
 Indiana. Aurora v. Colshire, 55 Ind. 484 (1876) ; Goshen v. Myers, 
 119 Ind. 196 (1889), (21 N. E. Rep. 657). 
 
 Kentucky. Henderson v. Sandefur, 11 Bush, 550 (1875), semble. 
 
 Maine. Bradbury v. Benton, 69 Me. 194, 198 (1879). 
 
 Michigan. Will v. Mendon, 108 Mich. 251, 253 (1896), (66 N. W. 
 Rep. 58). 
 
 Minnesota. Lindholm v. St. Paul, 19 Minn. 245 (1872) ; Treise v. 
 St. Paul, 36 Minn. 526 (1887), (32 N. W. Rep. 857) ; Graham v. Albert 
 Lea, 48 Minn. 201 (1892), (50 N. W. Rep. 1108). 
 
 Missouri. Maus v. Springfield, 101 Mo. 613, 617 (1890), (14 S. W. 
 Rep. 630). 
 
 New York. SeweU v. Cohoes, 75 N. Y. 45 (1878) ; Pomfrey v. 
 Saratoga Springs, 104 N. Y. 459, 466 (1887), (11 N. E. Rep. 43); 
 
 9 
 
130 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 is also strong evidence in support of the issue. ^ This 
 rule rests upon the principle that when the character of 
 a particular place as a highway is only collaterally in 
 issue, it is sufficiently established by any proof tending 
 to show that it was used by the public as a highway with 
 
 MoVee v. Watertown, 92 Hun (N, Y.), 306 (1895), (36 N. T. Supp. 
 870). 
 
 Pennsylvania. Aston v. McClure, 102 Pa. St. 322 (1883). 
 
 Texas. Austin v. Kitz, 72 Tex. 391, 403 (1888), (9 S. W. Rep. 884). 
 
 Washington. Taake v. Seattle, 18 Wash. 178 (1897), (51 Pac. 
 Rep. 362). 
 
 West Virginia. Wilson v. Wheeling, 19 W. Va. 328, 349 (1882) ; 
 Phillips V. Huntington, 35 W. Va. 406 (1891), (14 S. E. Rep. 17). 
 
 Wisconsin. Codner v. Bradford, 3 Cband. 291 (1851) ; Houfe v. 
 Fulton, 34 Wis. 608 (1874). 
 
 United States. Mayor, etc. of New York v. Sheffield, 4 Wall. 189, 
 193 (1866). 
 
 In Cartright v. Belmont, 58 Wis. 370 (1883), (17 N. W. Rep. 237), 
 it was held that the defendant corporation, by long acquiescence in 
 the use of a side track by the public as a part of the travelled high- 
 way, might become bound to keep the same in repair. Here the use 
 was continued for about three years. 
 
 1 Anna v. Boren, 77 111. App. 408, 410 (1898) ; Treise v. St. Paul, 
 36 Minn. 526 (1887), (32 N. W. Rep. 857) ; Whitney u. Essex, 42 Vt. 
 520 (1870) ; Coates v. Canaan, 51 Vt. 131 (1878) ; Codner v. Brad- 
 ford, 3 Chand. (Wis.) 291 (1851). 
 
 In Maine and Massachusetts, by virtue of statute provision (Mass. 
 Pub. Sts. c. 52, § 25 ; Me. Rev. Sts. (1883) c. 18, § 81), repairs made 
 by a town upon a way within six years before an accident are conclu- 
 sive as to its location. Gilpatrick v. Biddeford, 51 Me. 182 (1863) ; 
 Hayden v. Attleborough, 7 Gray (Mass.), 338 (1856) ; Taylor v. Wo- 
 burn, 130 Mass. 494, 500 (1881). The actual making of repairs must 
 be shown, however, in order to have this effect; a vote of the town to 
 make repairs, so long as unexecuted, is not enough. Brown v. Law- 
 rence, 120 Mass. 1 (1876). And the town may show that the way 
 where the injury occurred was not the same one on which the repairs 
 were made. Gilpatrick v. Biddeford, 51 Me. 182 (1863). The making 
 of repairs, under these statutes, is conclusive only upon the question 
 of the location of the way, and not necessarily upon the question of 
 the responsibility of the town for its defects. Wilson v. Boston, 117 
 Mass. 509 (1875). 
 
THE LIABILITY EELATIVE TO STREETS AND HIGHWAYS. 131 
 
 the knowledge and assent of the corporation to shift the 
 burden of going forward with the evidence upon the de- 
 fendant; it may, of course, if it can, disprove the prima 
 facie case made by such proof. ^ 
 
 It follows as a corollary from the above rule that a 
 municipal corporation cannot set up in defence of the 
 action, when sued for an injury due to its failure to prop- 
 erly maintain a particular way, any illegality in the pro- 
 ceedings incident to its establishment. ^ A contrary view, 
 however, prevails in New Hampshire,^ and also, it seems, 
 in Massachusetts.* 
 
 § 83. The opening of the Highway to Public Use — When 
 the Liability begins. — No precise rule can be laid down 
 fixing the exact stage in the proceedings to establish a 
 highway at which it will be considered so far open to the 
 public that liability for its defective condition will attach. 
 Necessarily each case as it arises must be determined 
 largely upon its own particular facts. It has been de- 
 cided, however, that the mere fact of determining the 
 necessity for, and the location of, a particular highway 
 by judicial action, does not of itself so far open it to the 
 public as to render the municipal corporation responsible 
 for accidents that may occur to persons travelling thereon.^ 
 For, of course, after such action is taken, the way is still 
 to be prepared for public use. " Labor is to be performed 
 upon it. Bridges are to be built, hills cut down, and 
 valleys filled up; obstructions are to be removed and 
 
 1 See Logan County v. People, 6 N. E. Rep. 475, 479 (111., 1886). 
 
 2 Pekin v. Newell, 26 LI. 320 (1861) ; Mayor, etc. of New York v. 
 Sheffield, 4 Wall. (U. S.) 189 (1866). 
 
 8 Hall V. Manchester, 39 N. H. 295 (1859) ; Tilton u. Pittsfield, 58 
 N. H. 327 (1878) ; Horns v. Rochester, 62 N. H. 347 (1882) ; Went- 
 worth V. Rochester, 63 N. H. 244 (1884) ; Randall v. Conway, 63 N. H. 
 513 (1885), (8 Atl. Rep. 635); Norris v. Haverhill, 65 N. H. 89 
 (1888), (18 Atl. Kep. 85). 
 
 4 Jones V. Andover, 9 Pick. (Mass.) 146 (1829). 
 
 6 Blaisdell v. Portland, 39 Me. 113 (ISr"!). 
 
132 LIABILITY OP MUNICIPAL COEPORATIONS FOR TORT. 
 
 rough places made smooth." On the other hand it is 
 generally conceded that no formal opening of the highway 
 to public use is necessary in order to impose upon the 
 corporation the duty of keeping it in a reasonably safe 
 condition. If it permits the public to treat and use as a 
 public highway land that has been laid out and partially 
 improved for a highway, though not formally opened as 
 such, it will be liable for injuries due to its unsafe 
 condition.! 
 
 § 84. The Liability as to Portions of a Highway con- 
 structed by Private Persons. — It is not essential to the 
 liability of a municipal corporation that it should appear 
 that the portion of the highway where the accident hap- 
 pened was constructed by it through its proper officers. 
 It will still be liable even though such portion was built 
 by a private individual without authority to so do, pro- 
 vided it has, in some appropriate manner, accepted the 
 portion so built as a part of its highway.^ It is to be 
 
 1 Blaisdell v. Portland, 39 Me. 113 (1855); Druryu. Worcester, 21 
 Pick. (Mass.) 44 (1838); Brennan v. St. Louis, 92 Mo. 482 (1887), 
 (2 S. W. Rep. 481); Taubman v. Lexington, 25 Mo. App. 218 (1887); 
 Meiners v. St. Louis, 130 Mo. 274 (1895), (32 S. W. Rep. 637) | 
 Downend v. Kansas City, 71 Mo. App. 529 (1897) ; Imperial v. 
 Wright, 34 Neb. 732 (1892), (52 N. W. Rep. 374) ; Seymour v. Sala- 
 manca, 137 N. Y. 364 (1893), (33 N. E. Rep. 304); Sehafer v. Mayor, 
 etc. of New York, 154 N. Y. 466 (1897), (48 N. E. Rep. 749). 
 
 In Lowell v. Moscow, 12 Me. 300 (1835), it appeared that one year 
 was allowed the defendant town in which to construct and open a new 
 highway; that such time had not expired when the accident in ques- 
 tion happened ; that the way had not then been completed, though it 
 was being used, but the work of construction was still in progress. 
 The court held that the defendant was not liable. 
 
 2 Illinois. Champaign v. Mclnnis, 26 lU. App. 338 (1887) ; Flora 
 V. Naney, 136 111. 45 (1891), (26 N. E. Rep. 645); Hogan v. Chicago, 
 168 111. 551, 559 (1897), (48 N. E. Rep. 210). 
 
 Indiana. Goshen v. Myers, 119 Ind. 196 (1889), (21 N. E. Rep. 657). 
 
 Iowa. Barnes v. Newton, 46 la. 567 (1877) ; Shannon v. Tama 
 City, 74 la. 22 (1887), (36 N. W. Rep. 776). 
 
 Michigan. Fuller v. Jackson, 82 Mich. 480 (1890), (46 N. W. Kep. 
 
THE LIABILITY RELATIVE TO STEEETS AND HIGHWAYS. 133 
 
 observed that the mere act of such private individual in 
 constructing the part of the highway does not impose the 
 liability upon the corporation. That arises only when it, 
 by its own acts, either by permitting the public to use 
 such part of the highway for a sufficient length of time or 
 by some other appropriate act, must be deemed to have 
 adopted it as a part of its highway. It is thus a ques- 
 tion of fact to be determined under the circumstances 
 of each particular case, whether the defendant corpora- 
 tion has become responsible for such portion of the 
 highway.^ 
 
 721); Lombar v. East Tawas, 86 Mich. 14, 23 (1891), (48 N. W. Rep. 
 947). 
 
 Minnesota. Furnell v. St. Paul, 20 Minn. 117, 120 (1873) ; Graham 
 V. Albert Lea, 48 Minn. 201 (1892), (50 N. W. Rep. 1108). 
 
 Missouri. Oliver v. Kansas City, 69 Mo. 79 (1878). 
 
 Nebraska. Plattsmouth v. Mitchell, 20 Neb. 228 (1886), (29 N. W. 
 Rep. 593) ; Ponca v. Crawford, 23 Neb. 662, 666 (1888), (37 N. W. Rep. 
 609) ; Foxworthy v. Hastings, 25 Neb. 133 (1888), (41 N. W. Rep. 
 132) ; Kinney v. Tekamah, 30 Neb. 605 (1890), (46 N. W. Rep. 835); 
 Chadron v. Glover, 43 Neb. 732 (1895), (62 N. W. Rep. 62). 
 
 New Hampshire. Willey v. Portsmouth, 35 N. H. 303, 313 (1857); 
 Lambert v. Pembrooke, 66 N. H. 280 (1890), (23 Atl. Rep. 81). 
 
 New York. Hiller v. Sharon Springs, 28 Hun (N. Y.), 344 (1882). 
 
 Pennsylvania. Dalton v. Upper Tyrone Township, 137 Pa. St. 18 
 (1890), (20 Atl. Rep. 637). 
 
 Texas. Klein v. Dallas, 71 Tex. 280, 284 (1888), (8 S. W. 
 Rep. 90). 
 
 Vermont. Potter v. Castleton, 53 Vt. 435, 440 (1881). 
 
 1 See Hiller v. Sharon Springs, 28 Hun (N. Y.), 344 (1882). 
 
 Where it appeared that a portion of a highway had become impass- 
 able, and that one of the selectmen of the defendant town had placed a 
 barrier across it for the purpose of turning, for the time being, t)'avel 
 from it on to and over a private way, which had never been adopted by 
 the defendant as one of its highways, the court held that these facts 
 constituted a temporary adoption of the private way as a substitute for 
 the highway while the latter was not in a fit condition for use, and 
 that the defendant town thereby became liable for injuries to a trav- 
 eller occasioned by reason of the insufficiency and want of repair of 
 the private way. Dickinson v. Rockingham, 45 Vt. 99 (1872). 
 
134 LIABILITY OF MUNICIPAL COEPORATIONS FOB TOET. 
 
 § 85. The Liability not affected by the Ownership of the 
 Pee in the Land. — The simple fact that a municipal corpo- 
 ration does not own the fee in the soil over which it has 
 constructed a highway does not affect its liability for 
 accidents happening upon it by reason of its defective 
 condition. That it assumed to, and did, exercise the 
 right to use the land as a highway, though owned by 
 third persons, and to control it by making improvements, 
 is generally enough to fasten upon it the obligation to 
 exercise the same degree of care concerning it as if it had 
 owned the land itself and had lawfully set it apart as a 
 highway.^ 
 
 § 86. The Width of the Highway. — Municipal corpora- 
 tions are not necessarily bound to prepare and maintain 
 in a reasonably safe condition for travel the full located 
 width of a highway. And this is peculiarly true as to 
 towns in sparsely settled districts, where travel is com- 
 paratively light. They fulfil their entire duty in this 
 regard when they have wrought and kept in a condition 
 fit for ordinary use a highway of sufficient width to rea- 
 sonably accommodate the travel at the particular place 
 and time. 2 If they have done this much, they will not 
 
 1 Mansfield v. Moore, 124 111. 133 (1888), (16 N. E. Eep. 246) ; 
 Roodhouse v. Christian, 55 111. App. 107 (1893) ; Sewell v. Cohoes, 75 
 N. Y. 45 (1878). 
 
 2 Wellington v. Gregson, 31 Kan. f)9 (1883), (1 Pao. Kep. 253) ; 
 Morse v. Belfast, 77 Me. 44, 45 (1885) ; Bassett v. St. Joseph, 53 Mo. 
 290, 303 (1873) ; Tritz v. City of Kansas, 84 Mo. 632, 642 (1884) ; 
 Prideaux v. Mineral Point, 43 Wis. 513, 523 (1878). And see also 
 Austin V. Ritz, 72 Tex. 391, 400 (1888), (9 S. W. Rep. 884). 
 
 A person who is familiar with a public driveway which is reason- 
 ably safe for vehicles of ordinary width, assumes the risk necessarily 
 involved in the act if he attempts to drive over it a truck of extreme 
 width. Jordan v. Mayor, etc. of New York, 44 N. Y. App. Div. 149 
 (1899), (60 N. Y. Supp. 696). 
 
 In Smith v. Wakefield, 105 Mass. 473 (1870), it was held that the 
 defendant town was not liable for injuries caused by the narrowness 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 135 
 
 01-dinarily be responsible for injuries sustained by one 
 who was, at the time of the accident, travelling upon some 
 other part of such highway.^ 
 
 But if a corporation has voluntarily gone on and im- 
 proved and left open for travel a highway for its entire 
 located width, it will be bound to keep the whole in a 
 reasonably safe condition for travel, and will conse- 
 quently be responsible for injuries sustained by reason 
 of a defect in any part of its width. ^ 
 
 § 87. The discontinuing of the Highway — When the Lia- 
 bility ceases. — In order to completely end its responsibil- 
 ity for the safe condition of any particular highway or 
 portion of a highway, a municipal corporation must take 
 such steps as shall bring about a real and actual discon- 
 tinuance of it as to all persons both by day and during 
 the night-time. In the absence of anything to the con- 
 trary, travellers have a right to assume that a highway 
 which appears to be open and to be used by the public has 
 not been discontinued. Hence the mere vote of the cor- 
 poration cannot alone serve to so discontinue it as to put 
 an end to its liability, save perhaps as to persons who 
 may have actual notice of such acts. Something more 
 on its part is necessary. Some effectual warning of the 
 
 and crookedness Of a highway, said defects being due to the manner 
 in which it was laid out by the county commissioners, on the ground 
 that the town had not the right to go outside of the limits defined by 
 the location in order to make the highway more safe for travel. There 
 could be no liability for a defect which it had neither the power nor 
 the right to remedy. 
 
 1 See § 90, post, and oases there cited. 
 
 2 Crystal v. Des Moines, 65 la. 502 (1885), (22 N. W. Kep. 646); 
 Saylor v. Montesano, 11 Wash. 328, 333 (1895), (39 Pac. Rep. 653). 
 
 When a municipality opens a street in whole or in part, it is bound 
 to keep it, or such part of it, in its entirety, reasonably safe for public 
 travel. Kossman v. St. Louis, 153 Mo. 293 (1899), (54 S. W. Kep 
 513). 
 
136 LIABILITY OP MUNICIPAL CORPORATIONS FOB TORT. 
 
 danger must be given by it to the public. The corpora- 
 tion must, in short, if it would end its liability, by the 
 erection oE barriers or by some other equally effective 
 means, so withdraw the highway from use as to leave 
 no doubt of its intention to wholly exclude the public 
 therefrom. Until it has employed such precautions and 
 guards as shall be sufficient to effectually warn travellers 
 in the exercise of ordinary care and prudence that such 
 highway has been closed to public travel, its liability as 
 to all persons without notice remains unchanged.^ 
 
 The question whether or not the means employed by it 
 were sufficient to bring about an actual discontinuance of 
 the highway is a question of fact for the jury to determine 
 in each particular case.^ The decision of the question 
 may involve the consideration of several matters, such 
 as the situation of the highway; the modes commonly 
 adopted for closing highways; the traveller's knowledge 
 of such modes; and similar facts. ^ 
 
 1 Munson v. Derby, 37 Conn. 298 (1870) ; White v. Boston, 122 
 Mass. 491 (1877) ; Southwell v. Detroit, 74 Mich. 438 (1889), (42 
 N. W. Kep. 118) ; Stephens v. Macon, 83 Mo. 345, 352 (1884); Bills v. 
 Kaukauna, 94 Wis. 310 (1896), (68 N. W. Kep. 992). 
 
 Where the defendant corporation put up a barbed-wire fence across 
 the highway in order to discontinue its use, the court says that a 
 barrier of such a character, in the night-time, was not only an utter 
 failure, but exposed travellers to great and positive danger of injury 
 to person and property. Bills v. Kaukauna, 94 Wis. 810 (1896), (68 
 N. W. Rep. 992). 
 
 In New York, by statute, if a highway remains for six years im- 
 passable for conveyances, by being fenced off or by excavations made 
 therein, its legal character as a highway is destroyed, and liability in 
 respect to it ceases. See Horey v. Haverstraw, 124 N. Y. 273 (1891), 
 (26 N. E. Kep. 532). 
 
 2 Howard v. Mendon, 117 Mass. 585 (1875) ; Norwood v. Somer- 
 ville, 159 Mass. 105 (1893), (33 N. E. Eep. 1108) ; Stephens v. Macon, 
 83 Mo. 345, 362 (1884). 
 
 " See White v. Boston, 122 Mass. 491 (1877). 
 
THE LIABILITY EELATIYE TO STREETS AND HIGHWAYS. 137 
 
 D. The Defect. 
 
 § 88. What constitutes a Defect. — The duty resting 
 upon municipal corporations relative to highways, it is 
 to be remembered, is to keep them in a reasonably safe 
 condition for travel in the ordinary modes both by day 
 and in the night-time. This being the duty, then, in gen- 
 eral terms, whatever in the condition of a highway, the 
 existence of which is due to negligence on the part of 
 the corporation,^ renders it unsafe for ordinary travel 
 constitutes a defect which may be made the basis of a 
 civil action by any person injured thereby. The condi- 
 tion of a highway that renders travel in the ordinary 
 modes unsafe may consist of an obstruction in an other- 
 wise safe road, such as a pile of dirt,^ brick, ^ or stones* 
 left in the way, or a stump ^ standing in or near to the 
 travelled path, or a post or barrier ^ set up in the way, or 
 
 1 Aurora v. Pulfer, 56 111. 270, 276 (1870) ; Craig v. Sedalia, 63 Mo, 
 417, 419 (1876) ; Hunt v. Mayor, etc. of New York, 109 N. Y. 134 (1888), 
 (16 N. E. Rep. 320). 
 
 2 Stafford V. Oskaloosa, 57 la. 748 (1882), (11 N. W. Rep. 668) 
 Griffin v. Mayor, etc. of New York, 9 N. Y. 456 (1853). 
 
 s Hazard v. Council Bluffs, 87 la. 51 (1893), (58 N. W. Rep. 1083) 
 Frost V. Portland, 11 Me. 271 (1834). 
 
 1 Bigelow V. Weston, 3 Pick. (Mass.) 267 (1825) ; Naylor v. Salt 
 Lake City, 9 Utah, 491 (1894), (35 Pao. Rep. 509). 
 
 5 Newport v. Miller, 93 Ky. 22 (1892), (18 S. W. Rep. 835) ; Tilton 
 V. Wenham, 172 Mass. 407 (1899), (52 N. E. Rep. 514) ; Ward v. Jef- 
 ferson, 24 Wis. 342 (186.9) ; Boltz v. Sullivan, 101 Wis. 608 (1899), 
 (77 N. W. Rep. 870) ; Blayor, etc. of New York v. Sheffield, 4 Wall. 
 (U. S.) 189 (1866). 
 
 ^ Pleasant Grove Township v. Ware, 7 Kan. App 648 (1898), (53 
 Pac. Rep. 885) ; Snow v. Adams, 1 Cush. (Mass.) 443, 446 (1848) ; Arey 
 I). Newton, 148 Mass. 598 (1889), (20 N. E. Rep. 327) ; Phelps v. Man- 
 kato, 23 Minn. 276 (1877) ; Yeaw v. Williams, 15 R. I. 20 (1885), (23 
 Atl. Rep. 33). See also Wellington v. Gregson, 31 Kan. 99 (1883), 
 (1 Pac. Rep. 253) ; Taylor v. Woburn, 130 Mass. 494 (1881). 
 
 But a hitohing-post, properly located, cannot be considered an un- 
 
138 LIABILITY OF MUNICIPAL COEPORATIONS FOR TORT. 
 
 logs or lumber 1 extending into the travelled path; or it 
 may consist of an unfitness of the roadbed itself, due to 
 faulty construction,^ or to ordinary wear,^ or to any other 
 cause. 
 
 But in order to constitute a defect, the condition com- 
 plained of need not, it has been held, present such a state 
 of things as to endanger all modes of public travel upon 
 the highway; it is enough that it makes any mode dan- 
 gerous which the public have a right to use. Under this 
 rule a post set in the highway so near to the street-rail- 
 way tracks as to knock the conductor of a passing car 
 from the running-board while he was collecting fares, 
 was held to be a defect, although it might not render 
 dangerous any other mode of travel.* 
 
 Whether or not a highway is defective, or is reasonably 
 
 lawful obstruction. Weinstein <-. Terre Haute, 147 Ind. 556 (1897), 
 (46 N. E. Rep. 1004) ; Macomber v. Taunton, 100 Mass. 255 (1868). 
 
 ' O'Neil V. East Windsor, 63 Conn. 150 (1893), (27 Atl. Kep. 237); 
 Johnson v. Whitefleld, 18 Me. 286 (1841) ; Langwoj-thy v. Green Town- 
 ship, 88 Mich. 207 (1891), (50 N. W. Rep. 130) ; Bagley v. Ludlow, 41 
 Vt. 425 (1868); Saylor v. Montesano, 11 Wash. 328 (1895), (39 Pac. 
 Rep. 653); Slivitski v. Wien, 98 Wis. 460 (1896), (67 N. W. Rep. 
 730). 
 
 A water-plug placed in the highway by a water company which 
 projected several inches above the surface has been held to be a defect. 
 Scranton v. Catterson, 94 Pa. St. 202 (1880). And so rails laid in the 
 highway by a street-railway company. Michigan City v. Boeckling, 122 
 lud. 39 (1889), (23 N. E. Rep, 518). 
 
 In Michigan it has been held that the statutory liability was con- 
 fined to such defects in the highway as arose from its being out of re- 
 pair, and did not cover objects forming no part of it and not afEecting 
 its condition as a way properly kept in repair. Agnew v. Corunna, 55 
 Mich. 428 (1885), (21 N. W. Rep. 873); McArthur v. Saginaw, 58 
 Mich. 857 (1885), (25 N. W. Rep. 313). See Whitney v. Ticonderoga, 
 127 N. Y. 40 (1891), (27 N. E. Rep. 403), which is contra. 
 
 2 Glantz V. South Bend, 106 Ind. 305 (1885), (6 N. E. Rep. 632). 
 
 8 Kansas City v. Bradbury, 45 Kan. 381 (1891), (25 Pac. Rep. 
 Cromarty v. Boston, 127 Mass. 329 (1879). 
 
 * Powers V. Boston, 154 Mass. 60 (1891), (27 N. E. Rep. 995). 
 
THE LIABILITY BELATIVB TO STREETS AND HIGHWAYS. 139 
 
 safe for travel by the ordinary modes, is usually a ques- 
 tion of fact for the jury ; ^ but if the precise position and 
 the characteristics of the alleged defect are not matters 
 of controversy, the court can determine the question as a 
 matter of law.^ 
 
 1 Connecticut. Congdon v. Norwich, 37 Conn. 414, 418 (1870) ; Lee 
 V. Barkhampsted, 46 Conn. 213 (1878); O'NeU v. East Windsor, 63 
 Conn. 150 (1898), (27 Atl. Rep. 237). 
 
 Illinois. Grayville v. Whitaker, 85 111. 439 (1877). 
 
 Indiana. Michigan City v. Boeckliug, 122 Ind. 39 (1889), (23 
 N. E. Rep. 518). 
 
 Kansas. Wellington v. Gregson, 31 Kan. 99 (1883), (1 Pac. Rep. 
 253). 
 
 Kentucky. Newport v. Miller, 93 Ky. 22 (1892), (18 S. W. Rep. 
 835). 
 
 Maine. Merrill v. Hampden, 26 Me. 234 (1846) ; Bryant v. Bidde- 
 ford, 39 Me. 193 (1855) ; Morse v. Belfast, 77 Me. 44 (1885). 
 
 Massachusetts. Ghenn v. Provincetown, 105 Mass. 313(1870) ; Dowd 
 V. Chicopee, 116 Mass. 93 (1874) ; Pratt v. Amherst, 140 Mass. 167 
 (1885), (2 N. E. Rep. 772); Harris v. Great Barrington, 169 Mass. 
 271, 275 (1897), (47 N. E. Rep. 881). 
 
 Michigan. Malloy v. Walker Township, 77 Mich. 448 (1889), (43 
 N. W. Rep. 1012). 
 
 Missouri. Craig v. Sedalia, 63 Mo. 417 (1876). 
 
 New Hampshire. Johnson v. Haverhill, 35 N. H. 74, 85 (1857); 
 Hardy v. Keene, 52 N. H. 370 (1872) ; Downes v. Hopkinton, 67 N. H. 
 456 (1893), (40 Atl. Rep. 433). 
 
 Ehode Island. Yeaw v. Williams, 15 R. I. 20 (1885), (23 Atl. 
 Rep. 33). 
 
 Vermont. Leicester v. Pittsford, 6 Vt. 245 (1834); Cassedy v. 
 Stookbridge, 21 Vt. 391 (1849); Willard v. Newbury, 22 Vt. 458 
 (1850) ; Bagley i-. Ludlow, 41 Vt. 425 (1868). 
 
 Washington. Saylor v. Montesano, 11 Wash. 328, 334 (1895), (39 
 Pac. Rep. 653). 
 
 Wisconsin. Wheeler v. Westport, 30 Wis. 392 (1872) ; Hein v. 
 Fairchild, 87 Wis. 258, 263 (1894), (58 N. W. Rep. 413); Vass v. 
 Waukesha, 90 Wis. 337 (1895), (63 N. W. Rep. 280). 
 
 ' Raymond v. Lowell, 6 Cush. (Mass.) 524 (1850) ; Macomber v. 
 Taunton, 100 Mass. 255 (1868) ; Beltz v. Yonkers, 148 N. Y. 67, 70 
 (1895), (42 N. E. Rep. 401). 
 
 As to when the court will set aside the verdict of the jury upon this 
 point, see Weeks v. Parsonsfield, 65 Me. 285 (1876). 
 
140 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 The fact that in the opinion of those municipal author- 
 ities who are charged with the duty of caring for the. 
 highways, the condition of things by reason of which the 
 traveller was injured did not constitute a defect is not at 
 all material. The inquiry in every case is not as to the 
 belief of the municipal authorities, but as to the actual 
 fact, which, as noted above, it is for the jury to find from 
 all the circumstances of the case.^ 
 
 § 89. The Cause of the Defect. — The essence of the lia- 
 bility of municipal corporations as to highways is for 
 not abating an unsafe condition that may exist therein. 
 Therefore, what was the cause of that unsafe condition is 
 of itself a matter of very little consequence. Indeed, it may 
 be created by the corporation itself,^ or by third persons, "^ 
 
 1 Hinckley v. Somerset, 145 Mass. 326, 336 (1887), (14 N. E. Rep. 
 166) I Hover v. Barkhoof, 44 N. Y. 113, 117 (1870) ; Rehberg v. 
 Mayor, etc. of New York, 91 N. Y. 137, 144 (1883) ; Goodfellow «. 
 Same, 100 N. Y. 15 (1885), (2 N. E. Rep. 462). 
 
 2 Hogan V. Chicago, 168 111. 551, 559 (1897), (48 K E. Rep. 210); 
 Glantz V. South Bend, 106 Ind. 305 (1885), (6 N. E. Rep. 632) ; Pratt 
 V. Amherst, 140 Mass. 167 (1885), (2 N. E. Rep. 772) ; Pettengill v. 
 Yonkers, 116 N. Y. 558 (1889), (22 N. E. Rep. 1095); Nashville w. 
 Brown, 9 Heisk. (Tenn.) 1 (1871) ; Wilson v. Wheeling, 19 W. Va. 
 323, 334 (1882). 
 
 8 Indiana. Fort Wayne v. Tie Witt, 47 Ind. 391 (1874) ; Hunting- 
 ton V. Breen, 77 Ind. 29 (1881) ; Michigan City o. Boeckling, 122 Ind. 
 39 (1889), (23 N. E. Rep. 518). 
 
 Iowa. Case v. Waverly, 36 la. 545 (1873). 
 
 Kansas. Jansen v. Atchison, 16 Kan. 358 (1876). 
 
 Maryland. Baltimore v. Pendleton, 15 Md. 12 (1859). 
 
 Massachusetts. Snow v. Adams, 1 Gush. (Mass.) 443 (1848). 
 
 Missouri. Haniford v. Kansas City, 103 Mo. 172, 181 (1890), (15 
 S. W. Rep. 753) ; overruling Barry v. St. Louis, 17 Mo. 121 (1852). 
 
 Nebraska. Davis v. Omaha, 47 Neb, 836 (1896), (66 N. W. Rep. 
 859). 
 
 New York. Requa v. Rochester, 45 N. Y. 129 (1871) ; Weed u. 
 Ballston Spa, 76 N. Y. 329 (1879) ; Cohen v. Mayor, etc. of New York, 
 113 N. Y. 532 (1889), (21 N. E. Rep. 700). 
 
 Pennsylvania. Scranton v. Catterson, 94 Pa. St. 202 (1880) ; 
 
THE LIABILITT RELATIVE TO STREETS AND HIGHWAYS. 141 
 
 or bj the action of the elements, ^ or by any other con- 
 ceivable cause, and in each case the corporation will be 
 liable to any person injured by reason of its existence, 
 provided it knew, or by the exercise of reasonable care 
 and diligence might have known, of it in time to have 
 remedied it before the accident happened. 
 
 Under this rule, the fact alone that a municipal cor- 
 poration had no control over the cause that produced the 
 defect, and could not prevent its operation, can afford no 
 defence; 2 if it might have discovered and remedied the 
 defect by the exercise of proper diligence, it is still liable. 
 If, however, it appears that the defective condition was 
 one that the corporation had neither the power nor the 
 right to remedy, it is not liable : the liability is only co- 
 extensive with the right and duty to repair. ^ Thus, it 
 has been held that the narrowness and crookedness of a 
 
 Mills V. Philadelphia, 187 Pa. St. 287 (1898), (40 Atl. Rep. 
 821). 
 
 Virginia. McCoull v. Manchester, 85 Va. 579 (1888), (8 S. E. Kep. 
 379). 
 
 United States. District of Columbia v. Woodbury, 136 U. S. 450, 
 464 (1890), (10 S. Ct. Rep. 990). 
 
 1 Kansas City w. Bradbury, 45 Kan. 381 (1891), (25 Pac. Rep. 889); 
 . Palmer u. Portsmouth, 43 N. H. 265 (1861). 
 
 In Hopkins v. Rush River, 70 Wis. 10 (1887), (34 N. W. Rep. 909; 
 35 N. W. Rep. 939), it was held that if the action of the elements by 
 which the defect was caused was unusual and extraordinary, the de- 
 fendant was not liable, on the ground that it was bound to provide 
 only against the usual and ordinary action of the elements. The test 
 there laid down was whether the action in a particular case is unusual 
 and extraordinary, not whether it might reasonably have been ex- 
 pected to occur. See also Village v. Kallagher, 52 Oh. St. 183 (1894), 
 (39 N. E. Rep. 144) ; and Brendlinger v. New Hanover Township, 148 
 Pa. St. 93 (1892), (23 Atl. Rep. 1105). 
 
 2 See Billings v. Worcester, 102 Mass. 329, 332 (1869). 
 
 8 Jones V. Waltham, 4 Cush. (Mass.) 299 (1849) ; Smith v. Wake- 
 field, 105 Mass. 473 (1870). And see Flanders v. Norwood, 141 Mass 
 17 (1886), (5 N. E. Rep. 256). 
 
142 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 highway, due to the manner in which it was laid out by 
 the county commissioners, though they may constitute 
 defects, will not render the corporation liable to a person 
 injured in consequence thereof, since it had no right to 
 go outside of the limits defined by the location in order 
 to make the highway more sat'e.^ 
 
 § 90. The Defect must be in the Travelled ^ Part. — The 
 duty to maintain highways in a reasonably safe condition 
 does not necessarily require that municipal corporations 
 should prepare for travel the whole road from one boun- 
 dary to the other. ^ A wrought part that is reasonably 
 safe for ordinary travel satisfies the requirements of the 
 law. It follows, therefore, that municipal corporations 
 are liable primarily only for injuries sustained by reason 
 of defects that exist in that part of the highway which is 
 wrought for public travel. Hence if a traveller, without 
 any necessity for such action, or for his own pleasure or 
 convenience, deviates from the wrought track, he does so 
 at his own peril, and cannot hold the corporation respon- 
 sible for damages sustained by defects outside the travelled 
 part.* And in the application of this rule it makes no 
 difference whether such defects were within or without 
 
 1 Smith V. Wakefield, 105 Mass. 473 (1870). 
 
 2 By the " travelled part " of the road is intended that part which 
 is usually wrought for travel, and not any track which may happen to 
 be made in the road by the passing of vehicles. Clark v. Common- 
 wealth, 4 Pick. (Mass.) 125 (1826) ; Wakeham v. St. Clair Township, 
 91 Mich. 15, 28 (1892), (51 N. W. Rep. 696). 
 
 « As to the width of the highway, see § 86, ante. 
 
 * Kansas. Wellington v. Gregson, 31 Kan. 99 (1883), (1 Pac. 
 Rep. 253). 
 
 Maine. Philbrick u. Pittston, 63 Me. 477 (1874) ; Perkins v. Fay- 
 ette, 68 Me. 152 (1878) ; Blake v. Newfleld, 68 Me. 365 (1878) ; Brown 
 V. Sko\Yhegan, 82 Me. 273 (1890), (19 Atl. Rep. 399); Taster u. 
 Farmingdale, 85 Me. 523 (1893), (27 Atl. Rep. 464). 
 
 Massachusetts. Howard v. North Bridgewater, 16 Pick. (Mass.) 
 
THE LUBILITY RELATIVE TO STREETS AND HIGHWAYS. 143 
 
 the limits of the highway as located, provided they were 
 outside the travelled part.^ 
 
 189 (1834) ; Smith v. Wendell, 7 Cush. 498 (1851) ; Carey v. Hubbard- 
 ston, 172 Mass. 106 (1898), (51 N. E. Rep. 521). 
 
 Michigan. Keyes v. Marcellus, 50 Mich. 439 (1883), (15 N. "W. 
 Kep. 542). 
 
 New Hampshire. Willey v. Portsmouth, 35 N. H. 303, 312 (1857). 
 
 New York. Dougherty v. Horseheads, 159 N. Y. 154 (1899), (53 
 N. E. Rep. 799). 
 
 Pennsylvania. Scranton v. Hill, 102 Pa. St. 378 (1883) ; Mouon- 
 gahela City v. Fischer, 111 Pa. St. 9 (1885), (2 Atl. Rep. 87). 
 
 Texas. Austin v. Ritz, 72 Tex. 391, 400 (1888), (9 S. W. Rep. 884). 
 
 Vermont. Rice v. Montpelier, 19 Vt. 470 (1847); Sykes v. Pawlet, 
 43 Vt. 446 (1871) ; Ozier v. Hineabnrgh, 44 Vt. 220 (1872). 
 
 Wisconsin. Kelley v. Fond du Lac, 31 Wis. 179 (1872) ; Hawes v. 
 Fox Lake, 33 Wis. 438, 442 (1873) ; Matthews v. Baraboo, 39 Wis. 
 674, 677 (1876); Goeltz v. Ashland, 75 Wis. 642 (1890), (44 N. W. Rep. 
 770) ; Rhyner v. Menasha, 97 Wis. 523 (1897), (73 N. W. Rep. 41). 
 
 In Johnson v. Whitefield, 18 Me. 286 (1841), it was held that 
 citizens had a right to travel over the whole width of the highway as 
 laid out, without being subjected to any other or greater danger than 
 might be presented by natural obstacles or those occasioned by making 
 and repairing the travelled part. And hence that a traveller, injured 
 while outside the prepared part by running against a log unnecessarily 
 placed there by a third person, might recover damages of the town. 
 
 1 Blake v. Newfield, 68 Me. 365 (1878), and cases cited above. 
 See also the following cases, in which the injury was occasioned by a 
 defect outside the limits of the highway: — 
 
 District of Columbia. Young v. District of Columbia, 3 MacArthur, 
 137 (1879). 
 
 Georgia. Zettler v. Atlanta, 66 Ga. 195 (1880). 
 
 Iowa. O'Laughlin v. Dubuque, 42 la. 539 (1876). 
 
 Maine. Morgan v. Hallowell, 57 Me. 375 (1869) ; Willey v. Els- 
 worth, 64 Me. 57 (1874). 
 
 Massachusetts. Stockwell v. Fitchburg, 110 Mass. 305 (1872). 
 
 New Hampshire. Knowlton v. Pittsfield, 62 N. H. 535 (1883). 
 
 Ohio. Kelley v. Columbus, 41 Oh. St. 263 (1884). 
 
 Pennsylvania. Worrilow v. Upper Chichester Township, 149 Pa. 
 St. 40 (1892), (24 Atl. Kep. 85). 
 
 Virginia. Clark v. Richmond, 83 Va. 355 (1887), (5 S. E. Rep. 369.) 
 
 West Virginia. Biggs v. Huntington, 32 W. Va. 55 (1889), (9 
 S. E. Rep. 51). 
 
 Wisconsin. Bogie v. Waupun, 75 Wis. 1 (1889), (43 N. W. Rep. 
 667) ; Strieker v. Reedsburgh, 101 Wis. 457 (1899), (77 N. W. Rep. 
 897). 
 
144 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 This general rule of law is, however, subject to several 
 exceptions. Thus, although injured" by a defect outside 
 the prepared part, the traveller may still be entitled to 
 recover compensation if he can show that the defect was 
 so near to the travelled part as to render its use unsafe. ^ 
 In cases of this class it is usually a question of fact for 
 the jury whether the dangerous spot was in such close 
 proximity to the prepared part as to make travel thereon 
 unsafe.^ 
 
 So also a traveller may leave the travelled part of the 
 highway and still retain the right to maintain an action 
 against the corporation if an accident happens to him 
 while he is outside such part, when the deviation is 
 slight and accidental, as where by the swerving of his 
 horse to one side of the wrought part to avoid a mud 
 puddle or because of the natural inclination of the horse 
 to travel on one side, the wheels of his vehicle are brought 
 into contact with an obstacle outside the limits of the pre- 
 pared track ; * or where the deviation is made necessary 
 because the travelled portion is obstructed or otherwise 
 unsafe, or is in such a condition as to create in the mind 
 of an ordinarily prudent traveller a reasonable belief that 
 
 1 Indiana. Fowler v. Linquist, 138 Ind. 566 (1894), (37 N. E. Rep. 
 1.33). 
 
 Maine. Bryant v. Biddeford, 39 Me. 193 (1855). 
 
 Massachusetts. Snow v. Adams, 1 Cush. (Mass.) 443 (1848); Arey 
 V. Newton, 148 Mass. 598 (1889), (20 N. E. Rep. 327). 
 
 Neio Hampshire. Willey v. Portsmouth, 35 N. H. 303 (1857). 
 
 Vermont. Morse v. Richmond, 41 Vt. 435 (1868) ; Drew v. Sutton, 
 55 Vt. 586 (1882). 
 
 Wisconsin. Boltz v. Sullivan, 101 Wis. 608 (1899), (77 N. W. 
 Rep. 870). 
 
 2 Bryant v. Biddeford, 39 Me. 193 (1855) ; Warner v. Holyoke, 112 
 Mass. 362 (1873). 
 
 8 Cassedy !). Stockbridge, 21 Vt. 391 (1849) ; Boltz v. Sullivan, 101 
 Wis. 608 (1899), (77 N. W. Rep. 870). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 145 
 
 it is dangerous ; ^ or where the deviation is made neces- 
 sary in order to pass another team, whether the latter is 
 moving in the same,^ or in the opposite,^ direction. The 
 burden rests upon the traveller in each of these cases to 
 show also that he acted with due care in making the 
 deviation.* 
 
 Again, if a traveller can show that the travelled part 
 of the highway has become extended or widened either by 
 the acts of private individuals or by public travel, or that 
 a side track has become established by user, and that the 
 defendant corporation permitted the portion so added or 
 the side track so established to be used for public travel 
 for a long time, and that there was nothing to indicate 
 that such use was unauthorized, he may recover for in- 
 juries caused by defects in such added parts of the way, 
 even though the corporation has provided a wrought part 
 safe and sufficient for public travel at that place. ^ 
 
 1 O'Laughlin v. Dubuque, 42 la. 539 (1876) ; Pomeroy t>. Westfield, 
 154 Mass. 462 (1891), (28 N. E. Rep. 899); Austin v. Ritz, 72 Tex. 
 391, 401 (1888), (9 S. W. Rep. 884) ; Green v. Danby, 12 Vt, 838 (1840) ; 
 Kelley v. Fond du Lac, 31 Wis. 186 (1872). See also Burr v. 
 Plymouth, 48 Conn. 460 (1881). 
 
 2 Mochler v. Shaftsbury, 46 Vt. 580 (1874). 
 
 » Popper V. AVheatlaud, 59 Wis. 623 (1884), (18 N. W. Rep. 514); 
 Hull V. Richmond, 2 Woodb. & M. (D. S.) 387 (1846), semhle. 
 
 * Austin V. Ritz, 72 Tex. 391, 401 (1888), (9 S. W. Rep. 884); 
 Kelley v. Fond du Lac, 31 Wis. 186 (1872). 
 
 ' Massachusetts. Aston v. Newton, 134 Mass. 507 (1883) ; Lowe 
 V. Clinton, 136 Mass. 24 (1883) ; Moran v. Palmer, 162 Mass. 196 
 (1894), (38 N. E. Rep. 442). 
 
 New Hampshire. Willey v. Portsmouth, 35 N. H. 303, 313 (1857) ; 
 Saltmarsh v. Bow, 56 N. H. 428 (1876) ; Stark v. Lancaster, 57 N. H. 
 88 (1876). 
 
 Vermont. Whitney v. Essex, 42 Vt. 520 (1870) ; Potter v. Castleton, 
 53 Vt. 435 (1881). 
 
 Wisconsin. Cartright v. Belmont, 58 Wis. 370 (1883), (17 N. W 
 Rep. 237). 
 
 In this last case, at page 373, the court says : " To relieve itself 
 
 10 
 
146 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 And, finally, a traveller may still maintain his action if 
 he can show that the limits of the travelled part of the 
 highway were not indicated by any visible objects which 
 would show the course intended for travel, and that the 
 defect which caused the injury, though really outside the 
 travelled part, was within the general course and direc- 
 tion of travel.^ 
 
 § 91. Defects due to the Plan of Construction. — There 
 is a marked difference of opinion to be found in the deci- 
 sions of the various courts, and in some instances even in 
 the decisions of the same court, upon the question whether 
 municipal corporations are liable for injuries suffered 
 while upon the highway by reason of defects that were 
 due to the plan of construction adopted by the municipal 
 authorities. In Michigan, New York, and Pennsylvania 
 
 from liability when the public travel, or some part of it, has diverged 
 from the prepared track, and has formed another track, equally ac- 
 cessible to travellers, and apparently as much travelled as the other, 
 the town should give some reasonable notice to the public travelling 
 there that the use of the side track is unauthorized. This may be 
 done by placing obstructions therein, or by putting up notices, or in 
 any other manner which will sufficiently notify travellers that the 
 town desires them to use the graded track alone." 
 
 1 Massachusetts. Coggswell v. Lexington, 4 Cush. 307 (1849); 
 Hayden v. Attleborough, 7 Gray, 338 (1856) ; Harwood v. Oakham, 
 152 Mass. 421 (1890), (25 N. E. Rep. 625). 
 
 Minnesota. Ray v. St. Paul, 40 Minn. 458 (1889), (42 N. W. 
 Rep. 297). 
 
 New Hampshire. Davis v. Hill, 41 N. H. 329 (1860). 
 
 New York. Jewhurst v. Syracuse, 108 N. Y. 303 (1888), (15 N. E. 
 Rep. 409). 
 
 Wisconsin. Wheeler v. Westport, 30 Wis. 392 (1872). 
 
 Compare Marshall v. Ipswich, 110 Mass. 522 (1872). 
 
 This rule does not, it seems, apply to sidewalks. See Stockwell v. 
 Fitchburg, 110 Mass. 305, 310 (1872); Stone v. Attleborough, 140 
 Mass. 328 (1885), (4 N. E. Rep. 570); Damon v. Boston, 149 Mass. 
 
 147 (1889), (21 N. E. Rep. 235) ; Knowlton v. Pittsfield, 62 N. H. 535 
 (1883). But Kinney v. Tekamah, 30 Neb. 605 (1890), (46 N. W. 
 Rep. 835), is contra. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 147 
 
 there are cases which lay down the rule that since the 
 determination of the plan in accordance with which a 
 highway is built is in the nature of legislative action, the 
 consequences of that action share in the general immunity 
 which is extended to all legislative action, and that, 
 therefore, no suit can be maintained for injuries due 
 to defects caused by the plan of construction adopted.^ 
 These decisions are somewhat difficult to reconcile with 
 the principle that the duty of keeping the public ways in 
 a reasonably safe condition for ordinary travel is not a 
 matter of judgment and discretion, but a positive, minis- 
 terial duty. Moreover, they can hardly be reconciled in 
 principle with other decisions of the same courts upon the 
 same subject.^ 
 
 However that may be, the better and more generally 
 accepted view is that municipal corporations may be liable 
 for injuries caused by defects which were due to the plan 
 of construction adopted by them.''' But such is the con- 
 fusion upon the subject that even from the cases which 
 
 1 Detroit v. Becktnan, 34 Mich. 125 (1876) ; Lansing v. Toolan, 37 
 Mich. 152 (1877); Davis v. Jackson, 61 Mich. 530 (1886), (28 JST. W. 
 Eep. 526) ; Urquhart v. Ogdensburg, 91 N. Y. 67 (1883) ; Monk v. 
 New Utrecht, 104 N. Y. 552 (1887), (11 N. E. Rep. 268) ; Watson v. 
 Kingston, 114 N. Y. 88 (1889), (21 N. E. Rep. 102) ; Perry Township 
 V. John, 79 Pa. St. 412 (1875). 
 
 2 See Malloy v. Walker Township, 77 Mich. 448 (1889), (43 N. W. 
 Eep. 1012) ; Lehmann ... Brooklyn, 30 N. Y. App. Div. 305 (1898), 
 (51 N. Y. Supp. 524). 
 
 5 North Vernon v. Voegler, 103 Ind. 314 (1885), (2 N. E. Rep. 821) ; 
 Gould V. Topeka, 32 Kan. 485 (1884), (4 Pac. Rep. 822); Blyhl v. 
 Waterville, 57 Minn. 115 (1894), (58 N. W. Rep. 817); Conlon v. St. 
 Paul, 70 Minn. 216 (1897), (72 N. W. Rep. 1073); Circleville v. Sohn, 
 59 Oh. St. 285 (1898), (52 N. E. Rep. 788). See also Chicago u. Gal- 
 lagher, 44 111. 295 (1867) ; Chicago v. Langlass, 66 111. 361 (1872) ; 
 Prideaux v. Mineral Point, 43 Wis. 513 (1878), where, without dis- 
 cussion of the question, the defendant corporations were held liable 
 for defects due to the original plan of construction. 
 
148 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 hold this latter view it is scarcely possible to extract any 
 uniform rule of liability. In general, however, it may be 
 said that the requirement of these cases is that the munici- 
 pal corporation shall exercise due care in the selection of 
 a plan of construction, and if it fails to so do, shall be 
 responsible in a private action for the damage that 
 results. 
 
 § 92. A Failure to light the Highway as a Defect. — 
 When municipal corporations have provided public ways 
 that are in proper repair and suitably protected by rail- 
 ings, so as to be reasonably safe for travel in the ordinary 
 modes, they have fulfilled their duty to the travelling 
 public. For, even though the power to furnish light is 
 conferred upon them, they are not, in the absence of any 
 statutory or charter provision making it an absolute 
 duty, under any legal obligation to exercise that power. 
 To do so or not is a matter intrusted entirely to the 
 discretion of the proper municipal authorities. Hence 
 the omission to illuminate their highways does not con- 
 stitute such a defect as may be made the basis of a private 
 action. 1 And it has been held that the fact that there 
 
 1 Colorado. Oliver v. Denver, 13 Col. App. 345 (1899), (57 Pao. 
 Eep. 729). 
 
 Georgia. Gaskins v. Atlanta, 73 Ga. 746 (1884) ; Columbus v. 
 Sims, 94 Ga. 483 (1894), (20 S. E. Rep. 382). 
 
 Illinois. Freeport v. Isbell, 83 III. 440 (1876); Chicago v. Apel, 
 50 111. App. 132 (1892); Chicago v. McDonald, 57 111. App. 250 
 (1894). 
 
 Indiana. Indianapolis v. Scott, 72 Ind. 196, 202 (1880). 
 
 Massachusetts. Spai-hawk v. Salem, 1 Allen, 30, 32 (1861); Macom- 
 ber V. Taunton, 100 Mass. 255 (1868) ; Lyon v. Cambridge, 136 Mass. 
 419 (1884). 
 
 Minnesota. Miller v. St. Paul, 38 Minn. 134 (1888), (36 N. W. 
 Kep. 271) ; McHugh v. St. Paul, 67 Minn. 441 (1897), (70 N. W. 
 Hep. 5). 
 
 Pennsylvania. Canavan v. Oil City, 183 Pa. St. 611, 616 (1898), 
 (38 Atl. Rep. 1096). 
 
THE LIABILITY EELATIYE TO STREETS AND HIGHWAYS. 149 
 
 is a city ordinance requiring lights to be provided under 
 certain circumstances will not alter this rule.^ 
 
 Cases of this class are to be distinguished from those 
 where there is some defect in the highway that ought to 
 be properly guarded in the night-time. In the latter 
 cases the duty to furnish lights is, of course, clear, and 
 the liability for any failure to so do, in consequence of 
 which an injury results to a traveller who is himself in 
 the exercise of due care, is equally clear. ^ 
 
 § 93. TTseful and Necessary Articles as Defects. — It is 
 commonly held that such useful and necessary articles, 
 rightfully placed in the highway, as hitching-posts, step- 
 ping-stones, and the like, if properly constructed and 
 located, do not, at least as a matter of law, constitute 
 defects therein.^ "It would be adding to the corporate 
 liability beyond reasonable limits," says Mr. Justice 
 Miller in Dubois v. Kingston,* "to hold that stepping- 
 stones, which are almost a necessity in providing for the 
 interest, comfort and convenience of the public in the 
 
 1 Lyon V. Cambridge, 136 Mass. 419 (1S84). 
 
 It is said in some of the cases that if a corporation, acting under 
 the power conferred by statute or charter, undertakes to light its 
 streets, it will be liable if it fails to furnish lights suflBcient to afford 
 proper security from danger. Freeport v. Isbell, 83 111. 440 (1876) ; 
 Chicago V. Powers, 42 III. 169 (186G). But see Columbus v. Sims, 94 
 Ga. 483 (1894), (20 S. E. Rep. 332), where it was held that the de- 
 fendant city, having voluntarily assumed to light its streets, was not 
 bound to do it in such a manner as to enable travellers to see obstruc- 
 tions placed therein by it, irrespective of the question whether such 
 obstruction, which was in this case a water-plug, was a reasonable and 
 proper one, or not. 
 
 2 Indianapolis v. Scott, 72 Ind. 196, 202 (1880) ; Canavan v. Oil 
 City, 183 Pa. St. 611, 616 (1898), (38 Atl. Rep. 1096). 
 
 8 Wellington v. Gregson, 31 Kan. 99 (1888), (1 Pac. Rep. 253); 
 Macomber v. Taunton, 100 Mass. 255 (1868); Dubois v. Kingston, 102 
 N. Y. 219 (1886), (6 N. E. Rep. 273) ; Dougherty v. Horseheads, 159 
 N. Y. 154 (1899), (53 N. E. Rep. 799). 
 
 * 102 N. Y. 219 (1886), (6 N. E. Rep. 273). 
 
150 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 maintenance of walks, avenues and streets, constitute a 
 nuisance or obstruction, and that corporations are liable 
 for damages by reason of accidents caused thereby." 
 
 But if such articles are not properly constructed and 
 located, they may constitute defects in the highway which 
 will render the corporation responsible for injuries due to 
 them.i 
 
 § 94. Unguarded Ezcavations as Defects. — The rule 
 seems to be universal that holes or excavations not prop- 
 erly guarded, whether within the travelled part^ or so 
 
 1 Schafer v. Mayor, etc. of New York, 154 N. Y. 466 (1897), (48 
 N. E. Eep. 749); Scranton v. Catterson, 94 Pa, St. 202 (1880). 
 
 2 Alabama. Birmingham ». McCary, 84 Ala. 469 (1887), (4 So. 
 Rep. 630) ; Birmingham v. Lewis, 92 Ala. 352 (1890), (9 So. Eep. 
 243). 
 
 Connecticut. Boucher v. Ifew Haven, 40 Conn. 456 (1873). 
 
 Delaware. Seward v. Wilmington, 2 Marv. 189 (1896), (42 Atl. 
 Kep. 451) ; Carswell v. Wilmington, 2 Marv. 360 (1897), (43 Atl. 
 Kep. 109). 
 
 Georgia. Savannah v. Donnelly, 71 Ga. 258 (1883) ; Dempsey v. 
 Rome, 94 Ga. 420 (1894), (20 S. E. Rep. 335) ; Amerious v. Chapman, 
 94 Ga. 711 (1894), (20 S. E. Rep. 3). 
 
 Illinois. Sterling v. Thomas, 60 111. 264 (1871); Chicago v. Bas- 
 ing, 83 111. 204 (1876) ; Aurora v. Seidelman, 34 111. App. 285 
 (1889). 
 
 Indiana. Dooley v. Sullivan, 112 Ind. 451 (1887), (14 N. E. Rep. 
 566) ; Decatur v. Stoops, 21 Ind. App, 397 (1899), (52 N. E, Rep. 623). 
 
 Iowa. Koester v. Ottumwa, 34 la. 41 (1871) ; Crystal v. Des 
 Moines, 65 la. 502 (1885), (22 N. W. Rep. 646). 
 
 Kansas. Fletcher v. Ellsworth, 53 Kan. 751 (1894), (37 Pao. 
 Rep. 115). 
 
 Kentvcky. Covington v. Bryant, 7 Bush, 248 (1870). 
 
 Louisiana. Cline v. Crescent City R. Co., 41 La. An. 1031 (1889), 
 (6 So. Rep. 851). 
 
 Maine. Kimball v. Bath, 38 Me. 219 (1854) ; Butler v. Bangor, 67 
 Me. 385 (1877). 
 
 Maryland. Baltimore v. Pendleton, 15 Md. 12 (1859). 
 
 Massachusetts. Doherty v. Waltham, 4 Gray, 596 (1855) ; Myers v. 
 Springfield, 112 Mass. 489 (1873). 
 
 Michigan: Detroit v. Corey, 9 Mich. 165 (1861) ; Alexander v. Big 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 151 
 
 near thereto as to render travel on such part unsafe,^ con- 
 stitute defects in the highway. In the application of this 
 
 Rapids, 76 Mich. 282 (1889), (42 N. W. Rep. 1071) ; Monje v. Grand 
 Rapids, 81 N. W. Rep. 574 (1900). 
 
 Minnesota. Cleveland v. St. Paul, 18 Minn. 279 (1872) ; O'Gorman 
 V. Morris, 26 Minn. 267 (1879), (3 N. W. Rep. 349). 
 
 Missouri. Halpin ». Kansas City, 76 Mo. 335 (1882) ; Brennan u. 
 St. Louis, 92 Mo. 482 (1887), (2 S. W. Rep. 481) ; Baldwin v. Spring- 
 field, 141 Mo. 205 (1897), (42 S. W. Rep. 717). 
 
 Nebraska. Omaha «. Randolph, 30 Neb. 699 (1890), (46 N. W. 
 Rep. 1013) ; Omaha v. Jensen, 35 Neb. 68 (1892), (52 N. W. Rep. 
 838) ; Lincoln v. Calvert, 89 Neb. 305 (1894), (58 N. W. Rep. 115). 
 
 New Hampshire. Grimes v. Keene, 52 N. H. 330 (1872) ; Sides v. 
 Portsmouth, 59 N. H. 24 (1879). 
 
 New York. Wilson v. Troy, 60 Hun, 183 (1891), (14 N. Y. Supp. 
 721) ; Roach v. Ogdensburg, 91 Hun, 9 (1895), (36 N. Y. Supp. 112). 
 
 Ohio. Circleville v. Neuding, 41 Oh. St. 465 (1885). 
 
 Oregon. McAllister v. Albany, 18 Oreg. 426 (1890), (23 Pac. 
 Rep. 845). 
 
 Pennsylvania. Sutter v. Young Township, 130 Pa. St. 72 (1889), 
 (18 Atl. Rep. 610). 
 
 Rhode Island. Seamons v. Fitts, 20 R. I. 443 (1898), (40 Atl. 
 Rep. 3). 
 
 Tennessee. Memphis w. Lasser, 9 Humph. 757 (1849). 
 
 Vermont. Willard v. Newbury, 22 Vt. 458 (1850) ; Batty v. Dux- 
 bury, 24 Vt. 155 (1852). 
 
 Washington. Rowe v. Ballard, 19 Wash. 1 (1898), (52 Pac. Rep. 321). 
 
 Wisconsin. Seward v. Milford, 21 Wis. 485 (1867) ; Hart v. Red 
 Cedar, 63 Wis. 634 (1885), (24 N. W. Rep. 410); Wiltse u. Tilden, 
 77 Wis. 152 (1890), (46 N. W. Rep. 234); RumriU v. Delafield, 82 
 Wis. 184 (1892), (52 N. W. Rep. 261) ; Little v. L-on River, 102 Wis. 
 250 (1899), (78 N, W. Rep. 416). 
 
 As to the duty, and consequent liability, of the corporation when 
 the excavation is a cellarway under, or in close proximity to, the 
 street, see Beardsley v. Hartford, 50 Conn. 529 (1S83) ; Augusta v. 
 Hafers, 59 Ga. 151 (1877) ; Smith v. Leavenworth, 15 Kan. 81 (1875) ; 
 Witham v. Portland, 72 Me. 539 (1881); Fitzgerald v. Berlin, 51 Wis. 
 81 (1881), (7 N. W. Rep. 836). 
 
 Where the excavation was a coal-hole, see Lafayette v. Blood, 40 
 Ind. 62 (1872) ; Harriman v. Boston, 114 Mass. 241 (1873) ; Welsh v. 
 Amesbury, 170 Mass. 437 (1898), (49 N. E. Rep. 735). 
 
 1 Beardsley u Hartford, 50 Conn. 529 (1883) ; Bassett u. St. Joseph, 
 53 Mo. 290 (1873); Stack v. Portsmouth, 52 N. H. 221 (1872). 
 
152 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 rule it makes no difference whether such holes or exca- 
 vations were made by the corporation itself, by its own 
 agents, or by an independent contractor employed by it ; 
 or were made by some third person, or by the action of 
 the elements : in each case the liability of the corporation 
 is the same, provided it knew, or by the exercise of rea- 
 sonable care and diligence might have known, of their 
 existence without proper guards in time to have prevented 
 the accident.^ 
 
 §95. Insecure Projeotiona as Defects. — In Massachu- 
 setts, and elsewhere to a limited extent, the rule has 
 become established that a structure, erected by the owner 
 of abutting premises over the sidewalk, which is so inse- 
 cure and defective as to be likely to fall, is a defect in 
 the highway for which a person injured by its fall may 
 recover compensation from the corporation, provided that 
 such structure can fairly be considered, not as a mere 
 incident of the building to which it is attached, but as in 
 some sense related to, and a part of, the sidewalk itself.^ 
 The typical cases within this rule are, of course, those 
 relating to insecure awnings,^ although it has been ex- 
 tended so as to include the case of a temporary trans- 
 parency, fastened at one end to a building and supported 
 at the other end by a pole resting on the sidewalk, which 
 
 1 See cases cited in above notes. 
 
 2 Drake v. Lowell, 13 Met. (Mass.) 292 (1847) ; Jones v. Boston, 104 
 Mass. 7.T (1870) ; Pratt v. Weymouth, 147 Mass. 245, 251 ('1888), (17 
 K. E. Rep. 538) ; Hewison v. New Haven, 34 Conn. 138 (1867) ; Hume 
 V. Mayor, etc. of New York, 74 N. Y. 264, 270 (1878). 
 
 s Drake v. Lowell, 13 Met. (Mass.) 292 (1847) ; Day v. Milford, 
 5 Allen (Mass.), 98 (1862) ; Hume v. Mayor, etc. of New York, 74 
 N. Y. 264, 270 (1878) ; Bieling v. Brooklyn, 120 N. Y. 98 (1890), (24 
 N. E. Rep. 389). See also Lai-son v. Grand Forks, 3 Dak. 307 (1884), 
 (19 N. W. Rep. 414) ; Bohen v. Waseca, 32 Minn. 176 (1884), (19 
 N. W. Rep. 730), which are accord in result. See also Merrill v. Port- 
 land, 4 Cliff. (U. S.) 138 (1870). 
 
THE LIABILITY EELATITE TO STREETS AND HIGHWAYS. 153 
 
 was put up in such an insecure manner as to fall upon 
 and injure a passer-by.^ But the case of a sign or flag 
 insecurely hung out over the highway from the abutting 
 premises to which alone they were attached,^ and the case 
 of snow and ice projecting over the sidewalk from the 
 roof of an adjoining building,^ have been held not to fall 
 within this rule. 
 
 The distinction between these latter decisions and the 
 awning cases has been stated by Mr. Justice Wells, in 
 Jones V. Boston,^ to be that "the awning differs from the 
 overhanging sign, or ice, in that it is not a mere incident 
 or attachment of the building alone, but is a structure 
 erected with reference, in part at least, to the use of the 
 sidewalk as such. The structure itself, being adapted to 
 the sidewalk, in some measure, as a part of its construc- 
 tion and arrangement for use as a sidewalk, a danger 
 from its insecure condition may reasonably be treated 
 as arising from a defective or unsafe condition of the 
 sidewalk." 
 
 In the case of Grove v. Fort Wayne, ^ the Indiana court, 
 on the ground that the duty of municipal corporations as 
 to highways extends not merely to conditions that exist 
 upon the surface of the ground over which the road is 
 constructed, but as well to conditions that exist entirely 
 above the surface, laid down a broader rule of liability, 
 holding that the defendant city was liable for injuries 
 received by a passer-by through the fall of an insecure 
 cornice that projected from the building of which it was 
 
 1 West V. Lynn, 110 Mass. 514 (1872). 
 
 ^ Hewison i'. New Haven, 34 Conn. 136 (1867); Jones v. Boston, 
 104 Mass. 75 (1870); Taylor v. Peckham, 8 R. I. 349 (1866). 
 8 Hixon V. Lowell, 13 Gray (Mass.) 59 (1859). 
 * 104 Mass. 75, 77 (1870). 
 6 45 Ind. 429 (1874). 
 
154 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TORT. 
 
 a part out over the sidewalk. Although the soundness of 
 the decision in that case has been somewhat questioned 
 in a later Indiana case,^ there are indications that a rule 
 upon this subject somewhat broader than the one prevail- 
 ing in Massachusetts might be adopted in states where 
 the common law liability of municipal corporations is 
 recognized and enforced.^ 
 
 § 96. Insecure Structures adjacent to the Highway as 
 Defects. — It has been held in several instances that 
 municipal corporations are liable for injuries received by 
 a traveller by the fall of insecure structures that stood on 
 land adjacent to the highway. These decisions are put 
 upon the ground that since the defendant corporation 
 possessed the power to abate nuisances of that character, 
 but failed to exercise it, it is bound to respond in dam- 
 ages for the injuries suffered in consequence of such 
 failure — the inference being that, in the absence of such 
 
 1 Anderson v. East, 117 Ind. 126 (1888), at page 129 (19 N. E. 
 Rep. 726). 
 
 2 See Larson u. Grand Forks, 3 Dak. 307 (1884), (19 N. W. Eep. 
 414) ; Bohen v. Waseca, 32 Minn. 176 (1884), (19 N. W. Rep. 780); 
 Norristown v. Moyer, 67 Pa. St. 355 (1871). 
 
 As to shade-trees that have been set out along the highway consti- 
 tuting a defect therein by reason of their unsound condition, see Jones 
 ti. New Haven, 34 Conn. 1 (1867); Chase v. Lowell, 149 Mass. 85 
 (1889), (21 N. E. Rep. 233); s. c. 151 Mass. 422 (1890), (24 N. E. 
 Rep. 212) ; Vosper v. Mayor, etc. of New York, 49 N. Y. Sup. Ct. 
 296 (1883); Gubasco v. Same, 12 Daly (N. Y.), 183 (1883); Jones 
 Tj. Greensboro, 124 N. C. 310 (1899), (32 S. E. Rep. 675). 
 
 For cases holding that a rope stretched across the highway consti- 
 tuted a defect therein, see Chicago v. Fowler, 60 111. 322 (1871) ; 
 French v. Brunswick, 21 Me. 29 (1842). But see Barber v. Roxbury, 
 11 Allen (Mass.), 818 (1865). And see also Hardy </. Keene, 52 
 N". H. 370 (1872). 
 
 In the following cases a live wire hanging in the street was treated 
 as a defect therein. Roodhouse v. Christian, 55 III. App. 107 (1893) ; 
 Bourget v. Cambridge, 156 Mass. 391 (1892), (31 N. E. Rep. 
 390). 
 
THE LIABILITY RELATIVE TO STEEETS AND HIGHWAYS. 155 
 
 power, there would be no liability. Thus, municipal cor- 
 porations have been held responsible for damages caused 
 by the fall of a defective bill-board that stood on land 
 adjoining the sidewalk ; ^ so also for damages due to the 
 fall of the partially destroyed walls of a building which 
 had been left standing on premises close to the high- 
 way.^ 
 
 § 97. An Illegal Use of the Highway as a Defect. — The 
 duty to maintain highways in a reasonably safe condition 
 for ordinary travel is performed when the roadbed is 
 kept reasonably smooth and free from obstructions, and 
 is properly protected by railings. Hence the principle is 
 established that " an illegal use of the highway by men, 
 animals, vehicles, engines or any other object, while 
 movable and actually being moved by human will and 
 direction, and neither fixed to, nor resting on, nor re- 
 maining in one position within the travelled part of the 
 highway," does not constitute a defect for which municipal 
 corporations are responsible in damages. Thus, an un- 
 lawful assemblage of people in the streets, engaged in 
 the dangerous practice of exploding powder in anvils, has 
 been held not to be a defect in the highway for which a 
 municipal corporation is liable to a person injured by the 
 acts of such assemblage.® And so also a boy coasting in 
 the highway upon a hand sled is commonly held not to 
 constitute a defect therein, upon which a person who is 
 struck and injured by the moving sled can base an 
 
 1 Langan v. Atchison, 35 Kan. 318 (1886), (11 Pac. Rep. 38). 
 But see Village v. Kallagher, 52 Oh. St. 183 (1894), (39 N. E. Rep. 
 144), where the defendant corporation was held not liable for injuries 
 due to the fall of a bill-board which was in sound condition, but was 
 caused to fall by an unprecedented wind-storm. 
 
 2 Parker v. Macon, 39 Ga. 725 (1869); Grogan v. Broadway Foun- 
 dry Company, 87 Mo. 321 (1885). 
 
 8 Campbell v. Montgomery, 53 Ala. 527 (1875). 
 
156 LIABILITY OF MUNICIPAL COEPORATIONS FOR TORT. 
 
 action to recover compensation from the defendant 
 corporation.^ 
 
 § 98. Objects that cause Horses to take Fright as Defects. 
 — By the great weight of authority an object in the high- 
 way with which a traveller does not come into contact, 
 but which is of such a nature as to cause his horse to take 
 fright, constitutes a defect for which municipal corpora- 
 tions are responsible.^ And under this rule it makes no 
 
 1 Delaware. Wilmington v. Vandegrift, 1 Marv. 5 (1893), (29 Atl. 
 Kep. 1047), 
 
 Indiana. Faulliner v. Aurora, 85 Ind. 130 (1882) ; Lafayette v. 
 Timberlake, 88 Ind. 330 (1882). 
 
 Massachusetts. Shepherd v. Chelsea, 4 Allen, 113 (1862) ; Pierce 
 V. New Bedford, 129 Mass. 534 (1880). 
 
 Michigan. Burford v. Grand Rapids, 53 Mich. 98 (1884), (18 N.W. 
 Kep. 571). 
 
 Vermont. Hutchinson v. Concord, 41 Vt. 271 (1868) ; Waller v. 
 Burlington, 60 Vt. 28 (1887), (12 Atl. Rep. 215). 
 
 Wisconsin. Schultz v. Milwaukee, 49 Wis. 254 (1880), (5 N. W. 
 Rep, 342). 
 
 See also Ray v. Manchester, 46 N. H. 59 (1865), where it appeared 
 that the plaintiff's horse was frightened by people coasting and ran 
 away, so causing the damage, and the defendant city was held liable. 
 
 In Barbery. Roxbury, 11 Allen (Mass.), 318 (1865), a derrick rope, 
 which was stretched across the road and attached at either end to 
 objects outside the highway, and which did not remain in one posi- 
 tion, but was raised and lowered by workmen in the course of their 
 work, was held, under this rule, not to be a defect in the highway for 
 which the defendant town was liable to a person injured by being 
 brought in contact therewith while it was being raised. 
 
 See also upon this subject Edgerly v. Concord, 59 N. H. 78 (1879). 
 
 2 Connecticut. Dimock v. Suffield, 30 Conn. 129 (1861) ; Ayer«. Nor- 
 wich, 89 Conn. 376 (1872); Young v. New Haven, 39 Conn. 435 (1872). 
 
 Illinois. Chicago v. Hoy, 75 111. 530, 531 (1874) ; Vandalia v. 
 Huss, 41 111. App. 517 (1891). 
 
 Indiana. Rushville v. Adaras,107 Ind. 475 (1886), (8 N. E. Rep. 292). 
 
 Maine. Card v. Ellsworth, 65 Me. 547 (1876). 
 
 Maryland. Kennedy v. Cecil County, 69 Md. 65 (1888), (14 Atl. 
 Rep. 524). 
 
 Michigan. Simons v. Casco Township, 105 Mich. 588 (1895), (63 
 N. W. Rep. 500). 
 
 New Hampshire. Chamberlain v. Enfield, 43 N. H. 356 (1861) ; 
 Bartlett v. Hooksett, 48 N. H. 18 (1868). 
 
 New York. Champlin v. Penn Yan, 34 Hun, 33 (1884); affirmed, 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 157 
 
 difference whether it is the visible appearance of the ob- 
 ject or the sound made by it that causes the fright. ^ 
 
 But in order to fix the liability, it must be established 
 that the object causing the fright was of such a character 
 as to be calculated to frighten horses of ordinary gentle- 
 ness.^ Whether or not it is of such a character is usually 
 a question of fact for the jury to determine ; ^ and evi- 
 dence that other horses were or were not frightened by it 
 is generally held to be competent upon this issue.* 
 
 102 N. T. 680 (1886) ; Burns v. Farmington, 31 N. Y. App. Div. 364 
 (1898), (52 N. Y. Supp. 229). 
 
 Pennsylvania. North Manheim Township v. Arnold, 119 Pa. St. 380 
 (1888), (13 Atl. Rep. 444) ; Baker v. North East Borough, 151 Pa. St. 
 234 (1892), (24 Atl. Rep. 1079). 
 
 Rhode Island. Bennett v. Fifield, 18 R. I. 139 (1880) ; Stone v. 
 Langworthy, 20 R. I. 602 (1898), (40 Atl. Rep. 832). 
 
 Texas. Patterson v. Austin, 15 Tex. Civ. App. 201 (1897), (39 
 S. W. Rep. 976). 
 
 Vermont. Morse v. Richmond, 41 Vt. 435 (1868). 
 
 Wisconsin. Foshay u. Glen Haven, 25 Wis. 288 (1870) ; Bloor v. 
 Delafield, 69 Wis. 273 (1887), (34 N. W. Rep. 115) ; Cairucross v. 
 Pewauljee, 78 Wis. 66, 70 (1890), (47 N. W. Rep. 13). 
 
 1 See cases cited in above note. 
 
 2 Connecticut. Ayer v. Norwich, 39 Conn. 376 (1872). 
 Maine. Card v. Ellsworth, 65 Me. 547 (1876). 
 
 New Hampshire. Bartlett v. Hooksett, 48 N. H. 18 (1868). 
 
 Rhode Island. Stone v. Langworthy, 20 R. I. 602, 605 (1898), (40 
 Atl. Rep. 832). 
 
 Wisconsin. Bloor v. Delafield, 69 Wis. 273, 278 (1887), (34 N. W. 
 Rep. 115). 
 
 3 Connecticut. Ayer v. Norwich, 39 Conn. 376 (1872). 
 Illinois. Vandalia v. Huss, 41 111. App. 517 (1891). 
 
 New Hampshire. Chamberlain v. Enfield, 43 N. H. 356 (1861); 
 Bartlett v. Hooksett, 48 N. H. 18, 21 (1868). 
 
 New York. Burns v. Farmington, 31 N. Y. App. Div. 364, 371 
 (1898), (52 N. Y. Supp. 229). 
 
 Pennsylvania. Fritsch v. Allegheny, 91 Pa. St. 226 (1879). 
 
 Wisconsin. Foshay v. Glen Haven, 25 Wis. 288 (1870); Cairn- 
 cross V. Pewaukee, 78 Wis. 66, 71 (1890), (47 N. W. Rep. 13) ; Laird 
 V. Otsego, 90 Wis. 25 (1895), (62 N. W. Rep. 1042). 
 
 * Smith V. Sherwood Township, 62 Mich. 159 (1886), (28 N. W. 
 
158 LIABILITY OP MUNICIPAL COEPOEATIONS FOR TORT. 
 
 Furthermore, it the object causing the fright was placed, 
 or continued, in the laigliway by some third person, it is 
 essential to the liability to establish the fact that such 
 person was not, in so doing, making such a use of the 
 public way as was, under all the circumstances' of the 
 case, reasonable and proper. This is so because private 
 persons have a right to use temporarily a reasonable por- 
 tion of the highway for any necessary purpose ; and such 
 use can, of course, impose no responsibility upon the 
 corporation.^ This issue also ordinarily raises a question 
 of fact for the jury, though it may, where the facts are 
 not disputed, be decided by the court as a question of 
 law.^ 
 
 In Maine and Michigan the liability of municipal cor- 
 porations under this rule is limited to such frightful 
 objects as exist in the travelled part of the highway.^ 
 
 Eep. 806) ; Darling v. Westmoreland, 52 N. H. 401 (1872) ; Champlin 
 V. Penn Yan, 34 Hun (N. Y.), 33 (1884). Contra, Bloor v. Delafield, 
 69 Wis. 278, 277 (1887), (34 N. W. Rep. 115). In this last case the 
 court decided that evidence of this character was not admissible on 
 the ground that it tended to open the door to numerous and perplex- 
 ing side issues, such as the condition of the other horse, — whether 
 blind or not; the speed at which it was driven; its character, — ■ 
 whether sluttish or not; the manner in which it was driven, — 
 whether carefully or not ; and like questions. 
 
 In Champlin v. Penn Yan, 34 Hun (N. Y.), 33 (1884), it was held 
 to be competent to show that other horses had been frightened at a 
 prior time by, not the same, but a similar, object, similarly located. 
 
 1 Bartlett v. Hooksett, 48 N. H. 18, 20 (1868); North Manheim 
 Township v. Arnold, 119 Pa. St. 380, 389 (1888), (13 Atl. Rep. 444); 
 Cairncross v. Pewaukee, 78 Wis. 66 (1890), (47 N. W. Rep. 13). 
 
 2 Loberg v. Amherst, 87 Wis. 634 (1894), (58 N. W. Rep. 1048). 
 
 8 Maine. Card v. Ellsworth, 65 Me. 547 (1876) ; Nichols v. Athens, 
 66 Me. 402 (1877) ; Farrell v. Oldtown, 69 Me. 72 (1879). 
 
 Michigan. Agnew v. Corunna, 55 Mich. 428 (1885), (21 N. W. 
 Rep. 873); Beall v. Athens Township, 81 Mich. 536 (1890), (45 N. W. 
 Rep. 1014). See also Simons v. Casco Township, 105 Mich. 588 
 (1895), (63 N. W. Rep. 500). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 159 
 
 As a general rule, however, they are held to be liable as 
 well if such object is in the untravelled part as if in the 
 travelled part.^ 
 
 The doctrine has become well established in Massachu- 
 setts, and has been adopted in South Carolina, that an 
 object with which a traveller does not come into contact 
 does not constitute a defect in the highway for. the sole 
 reason that it is of such a nature as to cause his horse to 
 take fright.^ In the practical application of this doctrine 
 it makes no difference whether the fright is caused by the 
 visible appearance of the object,^ or by sound;* nor yet 
 whether the object that causes the fright be outside the 
 travelled part, ^ or within the travelled part;^ nor again, 
 whether it constitutes in itself an actual defect in the 
 highway,'^ or does not in itself constitute a defect:^ in 
 each case alike no liability attaches to the corpora- 
 tion. But it seems that even under this doctrine, if his 
 
 1 Connecticut. Dimock v. Suffield, 30 Conn. 129 (1861). 
 
 New Hampshire. Chamberlain v. Enfield, 43 N. H. 356 (1861). 
 
 Pennsylvania. North Manheim Township v. Arnold, 119 Pa. St. 
 380, 389 (1888), (13 Atl. Eep. 444). 
 
 Texas. Patterson v. Austin, 15 Tex. Civ. App. 201 (1897), (39 
 S. W. Eep. 976). 
 
 Vermont. Morse v. Richmond, 41 Vt. 485, 438 (1868). 
 
 Wisconsin. Foshay v. Glen Haven, 25 Wis. 288 (1870). 
 
 ^ Massachusetts. Keith v. Easton, 2 Allen, 552 (1861); Cook v. 
 Charlestown, 98 Mass. 80 (1867); Bemis v. Arlington, 114 Mass. 507, 
 509 (1874) ; Lincoln v. Boston, 148 Mass. 578, 581 (1889), (20 N. E. 
 Eep. 329), semble. 
 
 South Carolina. Dunn v. Barnwell, 43 S. C. 398 (1895), (21 S. E. 
 Eep. 315). 
 
 3 Cook V. Montague, 115 Mass.' 571 (1874). 
 
 * Bowes V. Boston, 155 Mass, 344, 350 (1892), (29 N. E. Rep. 633). 
 
 6 Keith V. Easton, 2 Allen (Mass.), 552 (1861). 
 
 « Kingsbury v. Dedham, 13 Allen (Mass.), 186 (1866). 
 
 ' Cook V. Charlestown, 13 Allen (Mass.), 190, n. (1866); s. c. 98 
 Mass. 80 (1867). 
 
 8 Cook V. Montague, 115 Mass. 571 (1874). 
 
160 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 horse is frightened by one object, and in consequence he 
 is brought in contact with another object which is a 
 defect in the highway and is injured thereby, the traveller 
 may recover for the damage so suffered.^ 
 
 § 99. Snow and Ice as a Defect. — The responsibility of 
 municipal corporations relative to accumulations of snow 
 or ice in the highway is comparatively limited. While 
 the law exacts from them the same degree of diligence in 
 removing obstructions of this character as in removing 
 any other obstruction,^ it recognizes the fact that the 
 circumstances under which the diligence is to be exer- 
 cised are oftentimes very exceptional ; that in the rigor- 
 ous climate of our northern states large accumulations of 
 snow, the removal of which will involve much time and 
 expense, may cover many miles of highway in a brief 
 space of time;^ and that a smooth coating of ice, which 
 it is practically impossible to remove, is likely to form 
 
 1 Bigelow V. Weston, 3 Pick. (Mass.) 267 (1825); Bly v. Haver- 
 hill, 110 Mass. 520 (1872); Woods v. Groton, 111 Mass. 357 (1873); 
 Gushing v. Bedford, 125 Mass. 526 (1878). 
 
 ^ The liability is based on negligence. Landolt v. Norwich, 37 
 Conn. 615 (1871) ; Chicago v. Richardson, 75 111. App. 198 (1897) ; 
 Hubbard v. Concord, 35 N. H. 52, 68 (1857); Todd v. Troy, 61 N. Y. 
 506 (1875); Kaveny v. Troy, 108 N. Y. 571 (1888), (15 N. E. Sep. 
 726). And whether or not the corporation was negligent in not re- 
 moving the snow or ice before the accident happened is usually a ques- 
 tion for the jury. Congdon v. Norwich, 37 Conn. 414 (1870) ; Nebraska 
 City V. Rathbone, 20 Neb. 288 (1886), (29 N. W. Rep. 920) ; AUison 
 V. Middletown, 101 N. Y. 667 (1886), (5 N. E. Rep. 334). 
 
 8 As to the liability for a failure to remove drifts of snow, see 
 Rogers v. Newport, 62 Me. 101 (1873) ; Dutton v. Weare, 17 N. H. 
 34 (1845) ; Green u. Danby, 12 Vt. 338 (1840) ; MeCabe v. Ham- 
 mond, 34 Wis. 590 (1874). If the general state of the highway is 
 such that wheeled vehicles are used on it, it is the duty of the corpo- 
 ration to remove accumulations of snow that remain in particular 
 places in such quantities as to obstruct the passage of such vehicles. 
 Dutton V. Weare, 17 N. PI. 34 (1845). 
 
THE LIABILITY EKLATIVE TO STREETS AND HIGHWAYS. 161 
 
 upon the sidewalks quickly and often during the winter 
 season.^ 
 
 Influenced largely by considerations of this kind, the 
 courts of the various states hare held with much unanim- 
 ity of opinion that the bare fact that a highway which 
 was properly constructed and of no unusual slope, had 
 become slippery by reason of the existence of a coating of 
 ice which presented a smooth and polished surface, over 
 which it was difficult to pass without being exposed to 
 the danger of a fall, does not constitute a defect for 
 which municipal corporations are responsible.^ If, how- 
 
 ' " When the streets have been wholly or partially cleaned," says 
 Mr. Justice Finch iii Taylor v. Yonkers, 105 N. Y. 202 (1887), (11 
 N. E. Rep. 642), at page 206, " it often happens that a fall of rain or 
 the melting of adjoining snow is suddenly followed by severe cold, 
 which covers everything with a film or layer of ice and makes the 
 walks slippery and dangerous. This frozen surface it is practically 
 impossible to remove until a thaw comes which remedies the evil. 
 The municipality is not negligent for awaiting that result. It may 
 and should require householders, when the danger is great, to sprinkle 
 upon the surface ashes or sand or the like, as a measure of prudence 
 and precaution, but is not responsible for their omission. It is no 
 more bound to put upon the ice, which it cannot reasonably remove, 
 such foreign material than to cover it with boards. The emergency 
 is one which is common to every street in the village or city, and which 
 the corporation is powerless to combat. Usually it lasts but a few 
 days, and the corporate authorities may await without negligence a 
 change of temperature which will remove the danger." 
 
 Upon the question of the impossibility of removing ice, see also 
 Peard v. Mount Vernon, 83 Hun (N. Y.), 250 (1894), (31 N. Y. Supp. 
 395); Kleng v. Buffalo, 72 Hun (^^. Y.), 541 (1893), (25 N". Y. Supp. 
 445), affirmed in 156 N. Y. 700 (1898), (51 N. E. Rep. 1091); Staley 
 V. Mayor, etc. of New York, 37 N. Y. App. Div. 598 (1899), (56 N. Y. 
 Supp. 237). 
 
 2 Illinois. Gibson v. Johnson, 4 111. App. 288 (1879) ; Aurora v. 
 Parks, 21 111. App. 459 (1885). 
 
 Iowa. Broburg v. Des Moines, 63 Ta. 523 (1884), (19 N. W. Rep. 
 840). 
 
 Maine. Smythe ». Bangor, 72 Me. 249 (1881). 
 
 Massachusetts. Stanton v. Springfield, 12 Allen, 566 (1866) ; Hutch- 
 
 11 
 
162 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 ever, such smooth coating of ice is formed upon the high- 
 way because of the improper construction, or the defective 
 condition, of the highway itself,^ or because of the neg- 
 ligence of the municipal authorities to properly care for 
 the drains,"^ gutters,^ conductors,* catch-basins," and the 
 
 ins V. Boston, 12 Allen, 571, n. (1S66) ; Johnson v. Lowell, 12 Allen, 
 572, n. (1866); Nason v. Boston, 14 Allen, 508 (1867); Gilbert v. 
 Roxbury, 100 Mass. 185 (1868) ; Billings v. Worcester, 102 Mass. 329 
 (1869) ; Pinkham v. Topsfield, 104 Mass. 78, 83 (1870). 
 
 Minnesota. Heukes v. Minneapolis, 42 Minn. 530 (1890), (44 
 N. W. Rep. 1026). 
 
 Nebraska. Bell v. York, 31 Neb. 842 (1891), (48 N. W. Rep. 878). 
 
 New York. Kinney v. Troy, 108 N. Y. 567 (1888), (15 N. E. Rep. 
 728) ; Tobey v. Hudson, 49 Hun, 318 (1888), (2 N. Y. Supp. 180) ; 
 Buck V. Glens Falls, 4 N. Y. App. Div. 323 (1896), (38 N. Y. Supp. 
 582). 
 
 Ohio. Chase v. Cleveland, 44 Oh. St. 505 (1886), (9 N. E. Rep. 225). 
 
 Pennsylvania. Mauch Chunk v. Kline, 100 Pa. St. 119 (1882) ; 
 Wymanu. Philadelphia, 175 Pa. St. 117 (1S9B), (34 Atl. Rep. 621), 
 semhle. 
 
 Virginia. lynchburg i-. Wallace, 95 Va. 640 (1898), (29 S. E. Rep. 
 675). 
 
 Washington. Calder v. Walla Walla, 6 Wash. 877 (1893), (33 Pac. 
 Rep. 1054). 
 
 Wisconsin. Cook v. Milwaukee, 24 Wis. 270 (1869); Perkins v. 
 Fond du Lac, 34 Wis. 435 (1874), semhle; Beaton v. Milwaukee, 97 
 Wis. 416 (1897), (73 N. W. Rep. 53); Hyer v. Janesville, 101 Wis. 
 371 (1898), (77 N. W. Rep. 729), semble. 
 
 But see Cloughessey v. Waterbury, 51 Conn. 405 (1883); Dooley 
 V. Meriden, 44 Conn. 117 (1876). 
 
 1 Fitzgerald ;;. Woburn, 109 Mass. 204 (1872) ; Spellman v. Chic- 
 opee, 131 Mass. 443 (1881); Adams u. Chicopee, 147 Mass. 440 
 (1888), (18 N. E. Rep. 231); Gilbrie v. Lockport, 122 N. Y. 403 
 (1890), (25 N. E. Rep. 357). But see Chamberlain v. Oshkosh, 84 
 Wis, 289 (1893), (54 N. W. Rep. 618). 
 
 2 Woolseyw.Ellenville,61Hun(N.Y.),130(1891),(15N.Y. Supp. 
 647) ; Decker v. Scranton, 151 Pa. St. 241 (1892), (25 Atl. Rep. 36). 
 
 8 Gaylord v. New Britain, 58 Conn. 398 (1890), (20 Atl. Rep. 365). 
 
 4 McGowan v. Boston, 170 Mass. 384 (1898), (49 N. E. Uep. 633); 
 Todd V. Troy, 61 N. Y. 506 (1875); Darling u. Mayor, etc. of New 
 York, 18 Hun (N. Y.), 340 (1879). 
 
 6 Chicago V. Smith, 48 111. 107 (1868); Hall v. Lowell, 10 Cush. 
 
THE LIABILITY EELATIVB TO STREETS AND HIGHWAYS. 163 
 
 like, there may be a defect for which the corporation can 
 be made to respond in damages to a person who suffers an 
 injury through a fall upon such ice. 
 
 It is also held with equal unanimity of opinion that if 
 the snow or ice, instead of presenting a smooth surface, 
 has accumulated in ridges, or has assumed a rough and 
 uneven condition or such a shape as to be in some sense 
 a real obstruction to travel, either by reason of drifting, 
 or of the repeated flowing and freezing of water, or of the 
 passing to and fro of travellers, or from any other cause, 
 it is a defect in the highway; and the fact that it is also 
 slippery does not make it the less a defect. ^ Moreover, 
 
 (Mass.) 260 (1852); Bishop v. Goshen, 120 N. Y. 337 (1890), (24 
 N. E. Rep. 720). 
 
 In Corbett o. Troy, 53 Hun (X. Y.), 228 (1889), (6 N. Y. Supp. 
 381), the ice was due to a leaky hydrant. 
 
 For cases discussing the liability where the ice is formed by the 
 dripping of water from the eaves of an adjoining building, or the like, 
 see Kaveny v. Troy, 108 N. Y. 571 (1888), (15 N. E. Rep. 726) ; 
 Thompson v. Saratoga Springs, 22 N. Y. App. Div. 186 (1897), (47 
 N. Y. Supp. 1032) ; IMiller v. Bradford, 186 Pa. St. 104 (1898), (40 Atl. 
 Rep. 409) ; Hausmann v. Madison, 85 Wis. 187 (1893), (55 N. W. 
 Rep. 167). 
 
 1 Illinois. Aurora v. Parks, 21 111. App. 459 (1885). 
 
 Iowa. Collins c. Council Bluffs, 32 la. 324 (1871); Broburg v. 
 Des Moineis, 03 la. 523 (1884), (19 N. W. Rep. 340); Huston i: 
 Council Bluffs, 101 la. 33 (1897), (69 N. -w. Rgp. 1130) ; Hodges 
 V. Waterloo, 109 la. 444 (1899), (80 N. W. Rep. 523). 
 
 Massachusetts. Luther v. Worcester, 97 Mass. 268 (1867) ; Stone 
 V. riubbardston, 100 Mass. 49 (1868) ; Morse v. Boston, 109 Mass. 
 446 (1872); McAuley v. Boston, 113 Mass. 503 (1873); Williams v. 
 Lawrence, 113 Mass. 506 n. (1873). But see Acts 1896, ch. 540, § 1. 
 
 Missouri. Norton v. St. Louis, 97 Mo. 537 (1888), (11 S. W. Rep. 
 242). 
 
 Nebraska. Nebraska City v. Rathbone, 20 Neb. 288 (1886), (29 
 N. W. Rep. 920). 
 
 New York. Todd v. Troy, 61 K Y. 506 (1875) ; Harrington v. 
 Buffalo, 121 N. Y. 147 (1890), (24 N. E. Rep. 186) ; Keane v. 
 Waterford, 130 N. Y. 188 (1891), (29 N. E. Rep. 130); Stone 
 
164 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 the liability for injuries suffered by reason of snow or ice 
 upon the highway which had been permitted to assume, 
 and remain for an unreasonable length of time in, the 
 form of mounds and ridges, is not escaped nor in any 
 way affcQted by the fact that there was a city ordinance 
 requiring the abutting property owner to remove such 
 accumulations.^ 
 
 V. Poughkeepsie, 15 N. Y. App. Div. 582 (1897), (44 N. Y. Supp. 
 609). 
 
 Pennsylvania. McLaughlin v. Corry, 77 Pa. St. 109 (1874) ; Wy- 
 man v. Philadelphia, 175 Pa. St. 117 (1896), (34 Atl. Eep. 621); 
 Miller v. Bradford, 186 Pa. St. 164 (1898), (40 Atl. Rep. 409). 
 
 Utah. Sooville v. Salt Lake City, 11 Utah, 60 (1895), (39 Pac. 
 Rep. 481). 
 
 Viiginia. Lynchburg v. Wallace, 95 Va. 640 (1898), (29 S. E. 
 Rep. 675). 
 
 Washington. Calder v. Walla Walla, 6 Wash. 377 (1893), (33 Pac. 
 Rep. 1054), semhle; Piper v. Spokane, 60 Pac. Rep. 138 (1900). 
 
 Wisconsin. Cook v. Milwaukee, 24 Wis. 270, 274 (1869), se.mlle ; 
 Paulson V. Pelican, 79 Wis. 445 (1891), (48 N. W. Rep. 715). 
 
 United States. Providence v. Clapp, 17 How. 161 (1854) ; Smith 
 V. Chicago, 38 Fed. Rep. 888 (1889). 
 
 1 Norton v. St. Louis, 97 Mo. 537 (1888), (11 S. W. Rep. 242); 
 Taylor v. Yonkers, 105 K. Y. 202, 205 (1887), (11 N. E. Rep. 642). 
 
 In Massachusetts it is now provided by statute that no city or 
 town shall be liable for any injui-y received upon the highway by 
 reason of snow or ice thereon, if the place where the injury was 
 received was at the time of the accident otherwise reasonably safe. 
 Acts 1896, ch. 540, § 1. And see Newton v. Worcester, 169 Mass. 516, 
 518 (1897), (48 N. E. Rep. 274). 
 
 Under the Michigan statute it is held that there is no liability 
 resting upon municipal corporations for defects in the highway 
 caused by the mere accumulation from natural causes of snow or ice, 
 McKellar v. Detroit, 57 Mich. 158 (1885), (28 N. W. Rep. 621) ; 
 Kannenberg v. Alpena, 96 Mich. 53 (1893), (55 N. W. Rep. 614) ; 
 Rolf V. Greenville, 102 Mich. 544 (1894), (61 N. W. Rep. 3); Gavett 
 V. Jackson, 109 Mich. 408 (1896), (67 N. W. Rep. 517) ; even though 
 it be uneven, Hutchinson v. Ypsilanti, 103 Mich. 12 (1804), (61 
 N. W. Rep. 279). 
 
 In Ohio it is held that a fall of snow is a temporary impediment ; 
 that to impose upon municipal corporations the duty of removing it, 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 165 
 
 E. The Relation of the Defect to the Injukt. 
 
 § 100. The Defect must be the Fro:simate Cause of the 
 Injury. — In determining the responsibility of wrong- 
 doers, the law disregards remote causes, and looks only 
 at those that are proximate. This familiar rule of law 
 applies as well to municipal corporations as to any other 
 class of wrong-doers. Hence it has become well settled 
 that they are liable in damages only for those direct and 
 immediate consequences that may flow from defects neg- 
 ligently permitted by them to exist in the highway.^ 
 
 or of removing ice, fiom the sidewalks would be very burdensome 
 and involve great expense ; and that, unless very exceptional condi- 
 tions are shown, it would not be negligence for them to fail to remove 
 snow or ice from the sidewalk. Chase v. Cleveland, 44 Oh. St. 505 
 (1886), (9 N. E. Kep. 225). 
 
 It is provided by statute in Rhode Island that municipal corpora- 
 tions shall not be liable for an injury caused by snow or ice obstruct- 
 ing the liighway, unless notice in writing of the particular obstruction 
 has been given to the surveyor of highways within twenty-four hours 
 of the injury. Gen. Laws 1896, ch. 72, § 13. And see McCloskey v. 
 Moies, 19 R. I. 297 (1835), (33 Atl. Rep. 225) ; Allen v. Cook, 45 Atl. 
 Rep. 148 (R. I., 1900). 
 
 1 Georgia. Gaskins v. Atlanta, 73 Ga. 746 (1884). 
 
 Illinois. Roodhouse v. Christian, 158 III. 137 (1895), (41 N. E. 
 Rep. 748). 
 
 Indiana. Bluffton v. Mathews, 92 Ind. 213 (1883) ; Alexander v. 
 New Castle, 115 Ind. 51 (1888), (17 N. E. Rep. 200). 
 
 Maine. Rogers v. Newport, 62 Me. 101 (1873) ; Card v. Ellsworth, 
 65 Me. 547 (1873). 
 
 Maryland. Kennedy v. Cecil County, 69 Md. 65 (1888), (14 Atl. 
 Rep. 524). 
 
 Massachusetts. Harwood v. Lowell, 4 Cush. 310 (1849) ; Marble v. 
 Worcester, 4 Gray, 395 (1855); Jenks v. Wilbraham, 11 Gray, 142 
 (1858) ; Raymond v. Haverhill, 168 Mass. 382 (1897), (47 N. E. Rep. 
 101) ; Davis v. Longmeadow, 169 Mass. 551 (1897), (48 N. E. Rep. 
 774). 
 
 Michigan. McKeller v. Monitor Township, 78 Mich. 485 (1889), 
 (44 N. W. Rep. 412) ; Beall v. Athens Township, 81 Mich. 536 (1890), 
 
166 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 Whatever difference of opinion there may be as to the 
 practical application of this rule to particular sets of 
 facts, there is no difference of opinion as to the rule 
 itself. 
 
 § 101. 'Whether the Defect must be the Sole Cause of the 
 Injury — Concurring Causes. — In a very few states, but 
 notably in Maine and Massachusetts, the doctrine has 
 become established that the defect in the highway must 
 
 (45 N. W. Rep. 1014); Smith v. Walker Township, 117 Mich. 14, 18, 
 (1898), (75 N. W. Rep. 141). 
 
 New Hampshire. Judd v. Claremont, 66 N. H. 418, 419 (1890), 
 (23 Atl. Rep. 427). 
 
 Pennsylvania. Yoders v. Amwell Township, 172 Pa. St, 447 (1896), 
 (33 Atl. Rep. 1017). 
 
 l^exas. Gonzales v. Galveston, 84 Tex. 3 (1892), (19 S. W. Rep. 
 284). 
 
 Vermont. Hyde v. Jamaica, 27 Vt. 443 (1855) ; Stiokney v. Maid- 
 stone, 30 Vt. 738 (1858). 
 
 West Virginia. Childrey v. Huntington, 34 W. Va. 457, 464 (1890), 
 (12 S. E. Rep. 536). 
 
 In Roodhouse v. Christian, 158 111. 137 (1895), (41 N. E. Rep. 748), 
 it appeared that the plaintiff tripped because of a defect in the side- 
 walk, and, falling against an electric wire, was severely burned. The 
 court held that the negligence of the defendant city in permitting 
 its sidewalk to be and to remain in an unsafe condition was the primary 
 cause of the injury, without which he would not have been burned. 
 
 In Kelsey v. Glover, 15 Vt 708 (1843), it appeared that while the 
 plaintiff was driving along the highway, a runaway team ran into him 
 and caused the injury complained of ; that at the point where the 
 accident happened the highway was so obstructed that the plaintiff 
 could not pull out sufficiently to avoid the runaway. It was held that 
 the plaintiff might recover. The facts in Merrill v. Claremont, 58 
 N. H. 468 (1878), were slightly different. In that case it appeared 
 that the team of one traveller was overturned by a defect in the high- 
 way ; that his horses were frightened thereby and ran about ninety 
 rods, and then against the plaintiff, who was travelling on the road. It 
 was held that the plaintiff's injury might properly be found to be the 
 natural and probable consequence of the defendant's neglect of duty. 
 But see Marble v. Worcester, 4 Gray (Mass ), 395 (1856), where, on 
 similar facts, a different decision was rendered. 
 
THE LIABILITY RELATIYE TO STREETS AND HIGHWAYS. 167 
 
 be the sole cause of the accident.^ This doctrine has 
 been strictly interpreted by the Maine court, so strictly 
 that even though the concurring cause was a pure acci- 
 dent for which neither the defendant corporation nor the 
 injured person was responsible, the latter cannot main- 
 tain an action for the injury suffered.^ The bare fact 
 that besides the defect in the highway, there was another 
 proximate cause of the injury, which contributed directly 
 to it, is enough to debar him from recovering. 
 
 But in Massachusetts a more liberal view of the rule 
 has been taken, and it has been held that if the interven- 
 ing act is innocent, it will not break the causal connec- 
 tion. " It is because the act is wrongful, including under 
 this head negligence, not because it is a concurring 
 cause, that the defendant escapes. If the act which con- 
 curs with the defect in producing the result complained of 
 is innocent, and is of a kind which the defendant is bound 
 to expect and to provide ' for, — such, for instance, as 
 another man's driving upon the road, — the jury may find 
 against the town as well as when a particular state of the 
 
 1 Conneclicut. Bartram v. Sharon, 71 Conn. 686. 691 (1899), (43 
 Atl. Rep. 143). 
 
 Maine. Moore !'. Abbot, 32 Me. 46 (1850) ; Farrar v. Greene, 32 
 Me. 574 (1851) ; Coombs v. Topsham, 38 Me. 204 (1854) ; Anderson 
 V. Bath, 42 Me. 346 (1856); Moulton v. Sandford, 51 Me. 127 
 (1862). 
 
 Massachusetts. Rowell v. Lowell, 7 Gray, 100 (1856) ; Kidder v. 
 Dunstable, 7 Gray, 104 (1856) ; Richards v. Enfield, 13 Gray, 344 
 (1859) ; Shepherd u. Chelsea, 4 Allen, 113 (1862) ; Babson v. Rock- 
 port, 101 Mass. 93 (1869) ; Bemis v. Arlington, 114 Mass. 507 (1874) ; 
 Lyons v. Brookline, 119 Mass. 491 (1876); AVhitford v. Southbridge, 
 119 Mass. 564, 673 (1876). 
 
 Pennsylvania. SchaefEer u. Jackson Township, 150 Pa. St. 145 
 (1892), (21 Atl. Rep. 629). 
 
 2 Anderson u. Bath, 42 Me. 346 (1856); Moulton v. Sanford, 51 
 Me. 127 (1862) ; Perkins v. Fayette, 68 Me. 152 (1878) ; Aldrich v. 
 Gorham, 77 Me. 287 (1885), 
 
168 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 weather is a concurrent cause." ^ The innocent inter- 
 A'ening act that will not debar an injured person from 
 recovering, under this interpretation of the sole cause 
 doctrine, may be his own act, — as where the plaintiff, 
 without fault on his part,^ had been led into a position 
 rendered dangerous by reason of a defect in the highway, 
 and, exercising due care and prudence, voluntarily leaped 
 from his carriage in an attempt to save himself and was 
 injured thereby ; ^ or it may be the act of a third person, 
 — as where the plaintiff was injured by being pushed 
 from the highway, down an unguarded and dangerous 
 declivity, by a crowd, the action of the crowd beino' 
 neither wilful nor negligent;* or it maybe a pure acci- 
 dent, — as where the plaintiff was injured by the co- 
 operation of a defect in the highway and a failure of a 
 part of his carriage or harness, which failure was not 
 attributable to any lack of prudeace or foresight on his 
 part.^ 
 
 The decided weight of authority in this country, how- 
 ever, favors the doctrine that the defect in the highway 
 need not be the sole cause of the injury; that if, beside 
 such defect, there was another cause which contributed 
 directly to the result, but which was not attributable to 
 
 1 Mr. Justice Holmes in Hayes v. Hyde Park, 153 Mass. 514, 516 
 (1891), (27N. E. Eep. 522). 
 
 ^ If the injured person gets himself into a dangerous situation 
 through his own want of due care, he must extricate hiiuself at his 
 own risk. " A party cannot relieve himself from a dangerous posi- 
 tion into which his own fault has brought him and hold the town 
 responsible for the result." Little v. Brockton, 123 Mass. 511 (1878). 
 
 8 Thompson v. Bridgewater, 7 Pick. (Mass.) 188 (1828) ; Lund v. 
 Tyngsboro, 11 Cush. (Mass.) 563 (1853) ; Sears v. Dennis, 105 Mass. 
 310 (1870) ; Williams v. Leyden, 119 Mass. 237 (1876) ; Flagg v. Hud- 
 son, 142 Mass. 280 (1886), (8 N. E. Rep. 42); Pomeroy v. Westfield, 
 154 Mass. 462 (1891), (28 N. E. Rep. 899). 
 
 ^ Alger V. Lowell 3 Allen (Mass.), 402, 406 (1862). 
 
 ^ Palmer v. Andover, 2 Cush. (Mass.) 600 (1849). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 169 
 
 the negligence of the injured person, the corporation will 
 still be liable, provided the injury would not have been 
 sustained but for the defect in the highway.^ Under this 
 rule it has been held that neither the acts of third per- 
 sons, as the inadvertent or negligent pushing of the 
 injured party from the sidewalk and down a declivity 
 by another boy ; ^ nor the action of the elements, as the 
 freezing of water upon the streets so as to coat them with 
 smooth and slippery ice upon which the plaintiff slips and 
 falls ;^ nor a pure accident, as the giving away of some 
 
 1 Illinois. Bloomington v. Bay, 42 111. 503, 509 (1867) ; Lacon v. 
 Page, 48 111. 499 (1868); Carterville v. Cook, 129 111. 152 (1889), 
 (22 N. E. Kep. 14); Belleville v. Hofiman, 74 111. App. 503 (1897). 
 
 Indiana. Crawfordsville v. Smith, 79 Ind. 308 (1881) ; Fowler v. 
 Linquist, 138 Ind. 566 (1894), (37 N. E. Rep. 133). 
 
 Iowa. Langhammer v. Manchester, 99 la. 295 (1896). (68 N. W. 
 Rep. 688). 
 
 Kansas. Atchison v. King, 9 Kan. 550 (1872). 
 
 Missouri. Bassett v. St. Joseph, 53 Mo. 290 (1873) ; Hull v. Kan- 
 sas City, 54 Mo. 598 (1874) ; Brennan i;. St. Louis, 92 Mo. 482 (1887), 
 (2 S. W. Rep. 481) ; Vogelgesang v. St. Louis, 139 Mo. 127 (1897), 
 (40 S. W. Rep. 653); Vogel v. West Plains, 73 Mo. App. 588 (1898). 
 
 New Hampshire. Clark v. Barrington, 41 N. H. 44 (I860); Win- 
 ship V. Enfield, 42 N. H. 197 (1860). 
 
 New York. Ayres v. Hammondsport, 130 N. Y. 665 (1891), (29 
 N. E. Rep. 265) ; Roblee v. Indian Lake, 11 N. Y. App. Div. 435, 439 
 (1896), (42 N. Y. Supp. 326). 
 
 North Carolina. Dillon v. Raleigh, 124 N. C. 184 (1899), (32 S. E. 
 Rep. 548). 
 
 Rhode Island. Hampson v. Taylor, 15 R. I. 83 (1885), (8 Atl. Rep. 
 331) ; McCloskey v. Moies, 19 R. I. 297 (1895), (33 Atl. Rep. 225). 
 
 Texas. Gonzales v. Galveston, 84 Tex. 3, 7 (1892), (19 S. W. Rep. 
 284). 
 
 Vermont. Hunt v. Pownal, 9 Vt. 411 (1837) ; Kelsey v. Glover, 15 
 Vt. 708 (1843) ; Fletcher v. Barnet, 43 Vt. 192 (1870). 
 
 Wisconsin. Houfe u. Fulton, 29 Wis. 296, 302 (1871) ; McFarlane 
 V Sullivan, 99 Wis. 361, 366 (1898), (74 IST. W. Rep. 559). 
 
 2 Carterville v. Cook, 129 111. 152 (1889), (22 N. E. Rep. 14); Gon- 
 zales V. Galveston, 84 Tex. 3 (1892), (19 S. W. Rep. 284). 
 
 8 Langhammer v. Manchester, 99 la. 295, 301 (1896), (68 N. W. 
 
170 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 part of the vehicle or harness by reason of a defect therein 
 for which the plaintiff was in no way responsible,^ — 
 will break the causal connection. 
 
 In several states this general doctrine is held to be sub- 
 ject to the qualification that if an independent act of a 
 responsible person intervenes and becomes the proximate 
 cause of the injury, there can be no recovery, unless the 
 intervening act was of such a character as might reason- 
 ably have been anticipated and provided for.^ With this 
 qualification added, the practical difference between the 
 "but for" doctrine and "the sole cause" doctrine as 
 interpreted by the Massachusetts court appears to be little 
 more than a mere matter of words. Under either doc- 
 trine, if a wrongful or negligent act of the injured person 
 himself,^ or of a third person,* is a concurrent cause of 
 the injury, there can be no recovery; while the concur- 
 rence of an instinctive act of the plaintiff,^ or of a 
 
 Rep. 688) ; Atchison v. King, 9 Kan. 550, 558 (1872) ; Lincoln v. Smith, 
 28 Neb. 762 (1890), (45 N. W. Rep. 41); Lehmann v. Brooklyn, 30 
 N. Y. App. Div. 305, 308 (1898), (51 N. Y. Supp. 524) ; Hampson v. 
 Taylor, 15 R. I. 83 (1885), (8 Atl. Rep. 331); Barton v. Montpelier, 
 30 Vt. 650 (1858). 
 
 1 Wilson V. Atlanta, 60 Ga. 473, 477 (1878) ; Bloomington v. Bay, 
 42 111. 503 (1867); Vogel u. West Plains, 73 Mo. App. 588 (1898); 
 Clark V. Barrington, 41 N. H. 44 (1860) ; Fletcher v. Barnet, 43 Vt. 
 192 (1870). 
 
 2 Alexander o. New Castle, 115 Ind. 51 (1888), (17 N. E. Rep. 
 200); Mahogany v. Ward, 16 R. I. 479 (1889), (17 Atl. Rep. 860); 
 Childrey v. Huntington, 34 W. Va. 457, 464 (1890), (12 S. E. Rep. 
 536) ; Houfe v. Fulton, 29 Wis. 296 (1871). 
 
 8 See § 127, post, and cases there cited. 
 
 4 Bartram v. Sharon, 71 Conn. 686 (1899), (43 Atl, Rep. 143) ; Pratt 
 V. Weymouth, 147 Mass. 245 (1888), (17 N. E. Rep. 538) ; Mahogany 
 V. Ward, 16 R. I. 479 (1889), (17 Atl Rep. 860), 
 
 6 Lund V. Tyngsboro, 11 Cush. (Mass.) 563 (1853); Bassett k. St. 
 Joseph, 53 Mo. 290, 300 (1873); Hey v. Philadelphia, 81 Pa. St. 44 
 (1876). 
 
 In Stickney v. Maidstone, 30 Vt. 738 (1858), it appeared that, while 
 
THE LIABILITY EELATIVE TO STREETS AND HIGHWAYS. 171 
 
 pure accident,! will not prevent the maintaining of an 
 action. 
 
 § 102. A Runaway Horse as a Concurring Cause of the 
 Injury. — The duty of municipal corporations, as already 
 indicated, is simply to exercise reasonable care and dili- 
 gence in order to make their highways safe for the public 
 to use in the ordinary modes. The fact that horses un- 
 controlled by a driver may run away upon them in no 
 wise increases this obligation ; they are not bound to 
 exercise a greater degree of care and diligence so as to 
 make their public ways safe for runaway horses. ^ If, 
 therefore, municipal corporations have provided a reason- 
 ably safe highway for ordinary use, they will not be 
 responsible in damages because a team that was at the 
 time actually running away suffered an injury that might 
 possibly have been avoided if the highway had been 
 guarded with greater care.^ There is in such cases no 
 
 driving over a bridge, the plaintiff's horse broke through owing to a 
 defect in the flooring; that, while attempting to extricate him, the 
 plaintiff was struck and injured by the horse in his struggles to free 
 himself. It was held that the defect did not cease to be the direct 
 and proximate cause, until the party had released himself or his 
 property from the imminent and immediate peril directly occasioned 
 by it, and that therefore the town was liable for the plaintiff's injury. 
 La Duke v. Exeter Township, 97 Mich. 450, 452 (1893), (56 N. W. 
 Rep. 851), is in accord with this decision. And so also is Page v. 
 Bucksport, 64 Me. 51 (1874), although the decision there is rested 
 upon somewhat different grounds. 
 
 1 Palmer v. Andover, 2 Cush. (Mass.) 600 (1849) ; Vogel v. West 
 Plains, 73 Mo. App. 588 (1898); Clark v. Barringtou, 41 N. H. 44 
 (1860). 
 
 2 See Stacy v. Phelps, 47 Hun (N. Y.), 54 (1888), and the cases 
 cited in the following note. 
 
 » Bureau Junction v. Long, 56 111. App. 458 (1894); Moss v. Bur- 
 lington, 60 la. 438 (1883), (15 N. W. Rep. 267) ; Brown v. Glasgow, 
 57 Mo. 156 (1874), Ring v. Cohoes, 77 N. Y. 83 (1879), semble; Lane 
 V. Wheeler, 35 Hun (N. Y.), 606 (1885). 
 
 The court held in Stacy v. Phelps, 47 Hun (ST. Y.), 54 (1888), at page 
 
172 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 negligence that stands in the relation of a cause to the 
 injury. 
 
 But if the highway is in a defective condition, munici- 
 pal corporations will, in the opinion of the courts of a 
 majority of the states where the question has arisen, be 
 liable for any injury received in consequence of such 
 defective condition, notwithstanding the fact that the 
 horse was, at the time of the accident, beyond the control 
 of the driver and running away, provided that it was so 
 beyond control and at liberty through no fault of the 
 plaintiff, and provided also that the injury would not 
 have occurred but for the defective condition of the high- 
 way.^ The intervention of the mere brute force or of the 
 
 57, that it was not enough, where municipal corporations had failed to 
 do their duty, to say that if they had done it they might have per- 
 formed it in such a manner as to have prevented the injury complained 
 of, unless their duty required them to so do it that it may have had that 
 effect. 
 
 1 Connecticut. Ward v. North Haven, 43 Conn. 148 (1875). 
 
 Georgia. Atlanta v. Wilson, 59 Ga. 544 (1877) ; Augusta v. Hud- 
 son, 94 Ga. 135, 138 (1894), (21 S. E. Rep. 289). 
 
 Illinois. Lacon v. Page, 48 111. 499 (1868); Rockford .v. Rus- 
 sell, 9 111. App. 229 (1881); Jolietu. Shufeldt, 144 111. 403 (1893), 
 (32 N. £. Rep. 969); Belleville i/. Hoffman, 74 111. App. 508 
 (1897). 
 
 Indiana. Crawfordsville v. Smith, 79 Ind. 308 (1881) ; Fowler v. 
 Linquist, 138 Ind. 566, 573 (1894), (37 N. E. Rep. 133). 
 
 loioa. Manderschid v. Dubuque, 25 la. 108 (1868) ; Byerly v. Ana- 
 mosa, 79 la. 201, 208 (1890), (44 N. W. Rep. 359). 
 
 Maryland. Kennedy v. Cecil County, 69 Md. 65 (1888), (14 Atl. 
 Rep. 524). 
 
 Minnesota. Campbell v. Stillwater, 32 Minn. 308, 310 (1884), (20 
 N. W. Rep. 320). 
 
 Missouri. Hull v. Kansas City, .54 Mo. 598, 601 (1874) ; Vogel- 
 gesang v. St. Louis, 139 Mo. 127 (1897), (40 S. W. Rep. 653). 
 
 New Hampshire. Winship u. Enfield, 42 N. H. 197, 214 (1860), 
 semUe ; Stark v. Lancaster, 57 N. H. 88, 92 (1876). 
 
 New York. Ring v. Cohoes, 77 N. Y. 83, 88 (1879), semble; Ivory 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 173 
 
 will of the horse under such circumstances no more serves 
 to break the causal connection than would any other acci- 
 dental occurrence. "This appears to us," says Mr. Jus- 
 tice Earl in Ring v. Cohoes,^ "to be the reasonable rule. 
 It exacts no duty from municipalities which has not 
 always rested upon them. They must use proper care 
 and vigilance to keep their streets and highways in a 
 reasonably safe and convenient condition for travel. This 
 is an absolute duty which they owe to all travellers ; and 
 where the duty is not discharged, and, in consequence 
 thereof, a traveller is injured, without any fault on his 
 part, they incur liability. They are not bound to furnish 
 roads upon which it will be safe for horses to run away, 
 but they are bound to furnish reasonably safe roads ; and 
 if they do not, and a traveller is injured by culpable 
 defects in the road, it is no defence that his horse was at 
 the time running away or was beyond his control. " 
 
 This doctrine, however, is not unanimously accepted. 
 In the view of the courts of a number of states it is con- 
 sidered that the conduct of the horse may be the primary 
 cause of the accident, in the absence of which there would 
 be no injury, and whether it is so or not turns upon the 
 control that the driver had over his horse at the time. 
 The rule developed from this view is thus stated in the 
 leading Massachusetts case of Titus v. Northbridge : ^ 
 " When a horse, by reason of fright, disease or vicious- 
 
 V. Deerpark, 116 N. Y. 476 (1889), (22 N. E. Rep. 1080) ; Smith v. 
 Clarkstown, 69 Hun, 15o (1893), (23 N. Y. Supp. 245). 
 
 North Carolina. Dillon v. Raleigh, 124 N. G. 184 (1899), (32 S. E. 
 Rep. 548). 
 
 Texas. Eads v. Marshall, 29 S. W. Rep. 170 (1894). 
 
 Washington. White v. Ballard, 19 Wash. 284 (1898), (53 Pac. 
 Rep. 159). 
 
 1 77 N. Y. 83 (1879), at page 88. 
 
 2 97 Mass. 258, 265 (1867). 
 
174 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 ness, becomes actually uncontrollable, so that his driver 
 cannot stop him, or direct his course, or exercise or 
 regain control over his movements, and in this condition 
 comes upon a defect in the highway, or upon a place 
 which is defective for want of a railing, by which an 
 injury is occasioned, the town is not liable for the injury, 
 unless it appears that it would have occurred if the horse 
 had not been so uncontrollable." ^ But under this rule a 
 horse is not to be considered uncontrollable that merely 
 shies or starts, or is momentarily not controlled by his 
 driver. 2 If it appears, therefore, that the loss of control 
 
 ^ This rule prevails in the following states : — 
 
 Maine. Coombs v. Topsham, 38 Me. 204 (1854); Moulton v. San- 
 ford, 51 Me. 127 (1862) ; Spaulding v. Winslow, 74 Me. 528 (1883). 
 
 Massachusetts. Davis u. Dudley, 4 Allen, 557 (1862); Titus v. 
 Korth bridge, 97 Mass. 258 (1867); Fogg v. Nahant, 98 Mass. 578 
 (1868) ; s. c. 106 Mass. 278 (1871) ; Wright v. Templeton, 132 Mass. 
 49, 51 (1882) ; Higgins v. Boston, 148 Mass. 484, 486 (1889) , 20 N. E. 
 Kep. 105). 
 
 West Virginia. Smith v. County Court, 33 W. Va. 713 (1890), 
 (11 S. E. Rep. 1) ; Hungerraan v. Wheeling, 34 S. E. Rep. 778 
 (1899). 
 
 Wisconsin. Houfe v. Fulton, 29 Wis. 296 (1871), semUe; Jackson 
 V. Bellevieu, 30 Wis. 250, 258 (1872) ; Goldsworthy v. Linden, 
 75 Wis. 24, 29 (1889), (43 N. W. Rep. 656) ; McFarlane v. Sullivan, 
 99 Wis. 361, 365 (1898), (74 N. W. Rep. 559); Ritger v. Milwaukee, 
 99 Wis. 190 (1898), (74 N. W. Rep. 815). 
 
 See also Macungie Township v. Merkhoffer, 71 Pa. St. 276 (1872); 
 Pittston !'. Hart, 89 Fa. St. 389 (1879) ; Brown u. Laurens County, 
 88 S. C. 282 (1892), (17 S. E. Rep. 21) ; Mason v. Spartanburg County, 
 40 S. C. 300 (1893), (19 S. E. Rep. 15). 
 
 2 " The fact that a horse starts or shies at an object in the high- 
 way (whether such object is or is not a defect in the way) and is thus 
 brought in contact with a defect, arising either from want of proper 
 repair in the surface of the highway or of sufficient railing at the 
 side of it, is not conclusive against the right of the driver to recover 
 damages again.st the town for an injury thereby resulting to him ; for 
 the most gentle, intelligent and well broken horses will sometimes, in 
 spite of all precautions and efforts of their driver, and yet without in 
 any just sense escaping from his control, swerve out of their direct 
 
THE LIABILITY HELATIVE TO STREETS AND HIGHWAYS. 175 
 
 over the animal was only momentary, and would have 
 been instantly regained had not the vehicle come into 
 contact with the defect, the above rule will not be applied, 
 but the injured person will be entitled to maintain his 
 action notwithstanding such momentary loss of control.^ 
 
 In cases of this character it is for the jury to say 
 whether, upon all the evidence, there was any loss of con- 
 trol of the horse, and, if there was, whether or not it was 
 merely momentary. ^ 
 
 F. The Duty neglected. 
 
 § 103. Negligence the Basis of the Liability. — Before 
 any liability as to its public ways can arise, it must 
 appear that the municipality has failed to exercise due 
 care, under the circumstances, in the maintenance and 
 reparation of them. Negligence is the foundation of its 
 entire responsibility in this regard. Hence the mere 
 existence of a defect in the highway from which a trav- 
 
 course to avoid a defect, or what seems to them to be a danger, in the 
 road." Mr. Justice Gray in Stone v. Hubbardston, 100 Mass. 49, 54 
 (1868). 
 
 1 Maine. Aldrich v. Gorham, 77 Me. 287, 291 (1885) ; Morsman 
 V. Rockland, 91 Me. 264 (1898), (39 Atl. Kep. 995). 
 
 Mansachusetts. Britton u. Cummington, 107 Mass. 347 (1871). 
 
 Michigan. Langworthy v. Green Township, 95 Mich. 93 (1893), 
 (54 N. W. Kep. 697). 
 
 Rhode Island. Yeaw v. Williams, 15 K. I. 20 (1885), (23 Atl. 
 Kep. 33). 
 
 West Virginia. Kohrbough v. Barbour County Court, 39 W. Va. 
 472 (1894), (20 S. E. Rep. 565). 
 
 Wiscon.sin. Houfe v. Fulton, 29 Wis. 296 (1871), semble. 
 
 2 Harris v. Great Barrington, 169 Mass. 271, 275 (1897), (47 N. E. 
 Rep. 881). 
 
 If the horse was vicious, and the plaintiff knew it or could have 
 ascertained it by the exercise of reasonable diligence and inquiry, the 
 fact is evidence to be considered by the jury as bearing on the ques- 
 tion of the plaintiff's due care. Kockford v. Russell, 9 111. App. 229, 
 235 (1881). 
 
176 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 eller sustains an injury does not, independently of negli- 
 gence, establish a culpable breach of duty on its part.^ 
 
 Whether or not the corporation has been guilty of negli- 
 gence in any particular case is ordinarily a question of 
 fact for the jury to determine ; and this is so even though 
 there is no doubt as to the facts, if there is substantial 
 doubt as to the reasonable and natural inferences to be 
 drawn from them.^ But if the facts are undisputed, and 
 the inferences to be drawn from them are clear and 
 certain, the question may be decided by the court as a 
 matter of law.^ 
 
 § 104. The Nature of the Buty — Not avoided by Delega- 
 tion. — The duty that rests upon municipal corporations 
 to maintain their highways in a i-easonably safe condition 
 for ordinary travel, does not involve the exercise of judg- 
 ment and discretion. It does not rest with the* legislative 
 department to say whether or not it shall be performed. 
 It is rather purely ministerial, and hence absolute, in 
 character. * 
 
 Furthermore, it is the absolute duty of the corpora- 
 tions. The law imposes it upon them for wise purposes 
 of public policy, and they cannot, by any act of their 
 
 1 Graham v. Oxford, 105 la. 705 (1898), (75 N. W. Rep. 473) ; 
 Jansen v. Atchison, 16 Kan. 358 (1876); Rooney u. Randolph, 128 
 Mass. 580 (1880) ; Flanders v. Norwood, 141 Mass. 17 (1886), (5 N. E. 
 Rep. 256) ; Hunt v. Mayor, etc. of New York, 109 N. Y. 134 (1888), 
 (16 N. E. Rep. 320) ; Glasier t>. Hebron, 131 N. Y. 447 (1892), (30 
 N. E. Rep. 239). 
 
 2 Graham v. Oxford, 105 la. 705, 707 (1898), (75 N. W. Rep. 473); 
 Fritsch v. Allegheny, 91 Pa. St. 226, 228 (1879); Saylor v. Montesano, 
 11 Wash. 328, 384 (1895), (39 Pac. Rep. 653) ; Burns v. Elba, 32 Wis. 
 605, 612 (1873). 
 
 ' Montgomery v. Wright, 72 Ala. 411, 421 (1882). 
 
 4 Blyhl V. Waterville, 57 Minn. 115, 119 (1894), (58 N. W. Rep. 
 817); Tritz v. Kansas City, 84 Mo. 632,- 639 (1884); Urquhart v. 
 Ogdensburg, 91 N. Y. 67, 71 (1883) ; Hubbell v. Yonkers, 35 Hun 
 (N. Y.), 349 (1885) ; Hines v. Lockport, 50 N. Y. 236 (1872). 
 
THE LIABILITY EELATIVE TO STREETS AND HIGHWAYS. 177 
 
 own, shift it to other parties so as to relieve themselves 
 from responsibility for its performance. If they choose 
 to intrust the duty to third persons, they can do so, but 
 they are nevertheless bound at their peril to see that it is 
 properly performed : they become thereby responsible for 
 the negligence of the persons so intrusted, however com- 
 petent they may be.^ Hence, neither by a contract with 
 an independent contractor, in which the latter agrees to 
 keep the highway in a safe condition,^ nor by a municipal 
 ordinance, in which the duty to repair is cast upon the 
 abutting property owners,^ can municipal corporations 
 escape liability for any failure to properly perform this 
 duty which results in injury to a traveller. 
 
 § 105. The Extent of the Duty — Not Insurers. — Munici- 
 pal corporations are not insurers of the safety of persons 
 travelling' upon their highways. They are not bound, 
 therefore, to make them absolutely safe under all circum- 
 
 1 Rowell V. Williams, 20 la 210, 213 (1S70); Jansen v. Atchison, 
 16 Kan. 358, 385 (1876) ; Prentiss v. Boston, 112 Mass. 43, 48 (1873); 
 Blessington v. Boston, 153 Mass. 409 (1891), (26 N". E. Rep. 1113); 
 Russell V. Columbia, 74 Mo. 480 (1881) ; Davis v. Omaha, 47 Neb. 
 836, 842 (1896), (66 N. W. Rep. 859) ; Magee v. Troy, 48 Hun (N. Y.), 
 383 (1888), (1 N. Y. Supp. 24); Sproul v. Seattle, 17 Wash. 256 
 1897), (49 Pac. Rep. 489). 
 
 2 Jacksonville v. Drew, 19 Fla. 106 (1882) ; Hogan v. Chicago, 168 
 111. 551, 559 (1897), (48 N. E. Rep. 210) ; Southwell o. Detroit, 74 
 Mich. 438, 444 (1889), (42 N. W. Rep. 118) ; Welsh v. St. Louis, 73 
 Mo. 71 (1880) ; Circleville v. Neuding, 41 Oh. St. 465 (1885) ; McAl- 
 lister V. Albany, 18 Oreg. 426 (1890), (23 Pac. Rep. 845) ; Cleveland 
 V. King, 132 U. S. 295 (1889), (10 S. Ct. Rep. 90). 
 
 ' Baltimore v. Pendleton, 15 Md. 12 (1859) ; Lincoln v. Pirner, 81 
 N. W. Rep. 846 (Neb., 1900) ; Dallas v. Jones, 54 S. W. Rep. 606 
 (Tex., 1898); McCoull v. Manchester, 85 Va. 579 (1888), (8 S. E. 
 Rep. 379). 
 
 In Rockford v. Hildebrand, 61 111. 155, 161 (1871), it was held 
 that a provision in the. city charter of the defendant imposing the 
 duty of properly maintaining the highways upon the abutting property 
 owners did not relieve the defendant city therefrom. 
 
 12 
 
178 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 stances, so as to preclude the possibility of accident: the 
 law does not require them to anticipate unprecedented 
 events and to provide against their possible occurrence. 
 There is no rigid rule requiring them in all cases to keep 
 their public ways perfectly level, nor to maintain the 
 surface of them free from all inequalities and from every 
 possible obstruction to more convenient travel. Any 
 such burden as that is justly regarded by the courts as 
 excessive.^ 
 
 The whole extent of their duty, then, is simply to see 
 that their highways are in a reasonably safe condition for 
 travel in the ordinary modes, ^ both by night and in the 
 
 1 Connecticut. Wilson v. Granby, 47 Conn. 59, 73 (1879). 
 Illinois. Rockford v. Hildebrand, 61 111. 155, 157 (1871). 
 Indiana. Indianapolis u. Cook, 99 Ind. 10, 15 (1884) ; Gosport v. 
 
 Evans, 112 Ind. 133 (1887), (13 N. E. Rep. 256). 
 
 Kansas. MoFarland v. Emporia Township, 59 Kan. 568, 571 
 (1898), (53 Pac. Rep, 864). 
 
 Mississippi. Vioksburg v. Hennessy, 54 Miss. 391 (1877). 
 
 New York. Hubbell v. Yonkers, 104 N. Y. 434 (1887), (10 N. E. 
 Rep. 858) ; Hunt v. Mayor, etc. of New York, 109 N. Y. 134, 140 
 (1888), (16 N. E. Rep. 320) ; Turner v. Newburgh, 109 N. Y. 301, 
 305 (1888), (16 N. E. Rep. 344). 
 
 Ohio. Village v. Kallagher, 52 Oh. St. 183, 186 (1894), (39 N. E. 
 Rep. 144). 
 
 Pennsylvania. Burns v. Bradford, 137 Pa. St. 361, 367 (1891), (20 
 Atl. Rep. 997) ; Canavan v. Oil City, 183 Pa. St. 611, 614 (1898), (38 
 Atl. Rep. 1096). 
 
 Tennessee. Poole v. Jackson, 93 Tenn. 62, 68 (1893), (23 S. W. 
 Rep. 57). 
 
 Texas. Shelley v. Austin, 74 Tex. 608 (1889), (12 S. W. Rep. 753). 
 
 Virginia. Richmond v. Courtney, 32 Gratt. 792, 798 (1880) ; Moore 
 V. Richmond, 85 Va. 538, 541 (1888), (8 S. E. Rep. 387). 
 
 2 In Morrison v. Syracuse, 45 N. Y. App. Div. 421 (1899), (61 
 N. Y. Supp. 313), it was held that a person injured while rightfully 
 riding a bicycle on the sidewalk could not recover damages if such 
 sidewalk was in a reasonably safe condition for pedestrians, even 
 though it was not in a reasonably safe condition for bicycle riding. 
 Wheeler v. Boone, 108 la. 285 (1899), (78 N. W. Rep. 909), accord. 
 And in Leslie v. Grand Rapids, 120 Mich. 28 (1899), (78 N. W. Rep. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 179 
 
 daytime. Reasonable care and diligence under the cir- 
 cumstances is the only requirement; they must take meas- 
 ures to guard against all accidents to travellers who are 
 themselves in the exercise of proper care, that can or 
 ought reasonably to be foreseen and provided for. This 
 requires the exercise on the part of the municipal author- 
 ities of a proper degree of constant and active vigilance 
 toward keeping the highways in proper repair; ^ they can- 
 not sit down, close their eyes, and say that they did not 
 know the highway was defective, and so escape respon- 
 sibility.2 But if they have exercised vigilance of that 
 
 885), it was held that a person injured by being thrown from a 
 bicycle by reason of the defective condition of the highway could 
 not recover damages from the city if such highway was kept in a 
 reasonably safe and fit condition for ordinary vehicles, such as wagons 
 and carriages. 
 
 In a very late Massachusetts case, the court held that a bicycle 
 was not a carriage within the meaning of the statute which provides 
 that a highway shall be kept in repair " so that the same may be rea- 
 sonably safe and convenient for travellers, with their horses, teams, 
 and carriages at all seasons of the year,'' and heuce that the plaintiff, 
 who was injured by being thrown fiom her bicycle by reason of a 
 depression in the road, could not recover damages from the defendant 
 town. In the course of the opinion the court says : " It may impose 
 an intolerable burden upon towns to hold them bound to keep their 
 roads in such a state of repair and smoothness that a bicycle could go 
 over them with assured safety." Richardson v. Danvers, 176 Mass. 
 413 (1900). 
 
 1 " To repair," says the court in Fritsch v. Allegheny, 91 Pa. St. 
 226 (1879), at page 228, "means to replace, to restore to sound or 
 good condition after injury or partial destruction. Therefore, to 
 repair a road or street, to restore it to its former condition and give it 
 the essential properties of a suitable public highway, requires the 
 removal of all obstacles cast upon it, which impede its free passage." 
 
 " Georgia. Milledgeville v. Cooley, 55 Ga. 17, 18 (1875). 
 
 Illinois. Monmouth v. Sullivan, 8 111. App. 50 (1880) ; Mansfield 
 V. Moore, 124 111. 133, 137 (1888), (16 N. E. Rep. 246); Rock Island 
 V. Drost, 71 111. App. 613 (1897); Streator v. Liebendorfer, 71 111. 
 App. 625 (1897). 
 
 Indiana. Fort Wayne v. De Witt, 47 Ind. 391 (1874) ; Michi- 
 
180 LIABILITY OP MUNICIPAL CORPORATIONS FOE. TORT. 
 
 character, and have failed to discover a defect which was 
 
 latent, there arises no liability against the municipality.' 
 
 gan City V. Boeckling, 122 Ind. 39 (1889), (23 N. E Eep 
 518). 
 
 Kansas. Emporia v. Schmidliiig, 33 Kan. 485, 489 (1885), (6 Pac. 
 Rep. 893). 
 
 Ifaine. Morse v. Belfast, 77 Me. 44, 46 (1885). 
 Massachusetts. Rooney v. Randolph, 128 Mass. 580 (1880) ; Flan- 
 ders V. Norwood, 141 Mass. 17 (1886), (5 N. E. Rep. 256). 
 
 Michigan. Moore v. Kenockee Township, 75 Mich. 332 (1889) 
 (42 N. W. Rep. 944). 
 
 Mississippi. Vioksburg r. Hennessy, 54 Miss. 391 (1877), semUe; 
 Nesbitt V. Greenville, 69 Miss. 22, 29 (1891), (10 So. Rep. 452); 
 Walker o. Vioksburg, 71 Miss. 899 (1894), (15 So. Eep. 132). 
 
 Missouri. Smith v. St. Joseph, 45 Mo. 449 (1870) ; Squires v. 
 Chillicothe, 89 Mo. 228 (1886), (1 S. W. Eep. 23); Maus u. Spring- 
 field, 101 Mo. 613, 617 (1890), (14 S. W. Rep. 630) ; Haniford t;. 
 Kansas City, 103 Mo. 172, 181 (1890), (15 S. W. Eep. 753). 
 
 New Hampshire. Clark v. Barrington, 41 N. H. 44, 52 (1860) ; 
 Howe V. Plainfleld, 41 N. H. 135, 138 (1860). 
 
 New York. Hubbell v. Yonkers, 104 N. Y. 434 (1887), (10 N. E. 
 Eep. 858) ; Hunt v. Mayor, etc. of New York, 109 N. Y. 134 (1888), 
 (16 N. E. Rep. 320) ; Pettengill v. Yonkers, 116 N. Y. 558, 564 (1889), 
 (22 N. E. Rep. 1095); Lane v. Hancock, 142 N. Y. 510 (1894), (37 
 N. E. Rep. 473) ; Beltz v. Yonkers, 148 N. Y. 67 (1895), (42 N. E. 
 Rep. 401). 
 
 Virginia. Moore v. Richmond, 85 Va. 538, 541 (1888), (8 S. E. Eep. 
 387). 
 
 Washington. Sproul v. Seattle, 17 Wash. 256 (1897), (49 Pac. Rep. 
 489). 
 
 United States. District of Columbia i'. Woodbury, 136 U. S. 450 
 (1890), (10 S. Ct. Rep. 990). 
 
 In Kellogg V. Janesville, 34 Minn. 132, 134 (1885), (24 N. W. Rep. 
 359), the defendant asked the trial judge to rule that an inspection of 
 the streets made once in two weeks and followed by repairs when 
 necessary was reasonable diligence. The court held that this ruling 
 was properly refused ; that no inflexible rule could be laid down as to 
 the frequency with which inspections should be made. " The condi- 
 tions are liable to be so different in relation to diiferent sidewalks, or 
 different portions of the same walk, and so many contingencies are 
 likely to arise, that it can only be determined from the situation and 
 circumstances of each case whether reasonable care has been exercised 
 in the premises." 
 
 1 Lombaru. East Tawas, 86 Mich. 14, 18 (1891), (48 N. W. Rep. 917). 
 
THE LIABILITY RELATIVE TO STEEETS AND HIGHWAYS. 181 
 
 The law fixes the degree of the obligation of municipal 
 corporations relative to highways, and requires them to 
 meet it. The custom of the particular locality, therefore, 
 can neither enlarge nor narrow that obligation, — custom 
 will not require them to do more, nor excuse them for 
 doing less.i 
 
 § 106. How far the Duty to repair is dependent on 
 Notice. — Whenever defective conditions in the highway 
 are caused by the operation of natural forces, or by the 
 action of persons whose acts are neither directly nor con- 
 structively its own, no duty in respect to them arises 
 until the municipality has had actual notice of their 
 existence, or is at fault for not having such notice. ^ But 
 after it has had notice, either express or implied, of the 
 existence of a defect, no matter how it was caused, the 
 obligation immediately arises to exercise reasonable care 
 and diligence to so restore the highway that it may again 
 be reasonably safe for ordinary travel.^ And, as has been 
 
 1 Koester ;;. Otturawa, 34 la. 41, 43 (1871). 
 
 2 Kehberg v. Mayor, etc. of New York, 91 N. Y. 137, 142 (1883); 
 Knoxville v. Bell, 12 Lea (Tenn.), 157, 160 (1883); Klein c. Dallas, 
 71 Tex. 280, 285 (1888), (8 S. W. Eep. 90); and see § 121, post. 
 
 8 Alabama. Bradford v. Anniston, 92 Ala. 349 (1890), (8 So. Eep. 
 683). 
 
 Connecticut. Davis v. Guilford, 55 Conn. 351, 357 (1887), (11 Atl. 
 Rep. 350). 
 
 Illinois. Chicago v. Hoy, 75 111. 530, 533 (1874). 
 
 Indiana. Logansport v. Justice, 74 Ind. 378 (1881). 
 
 Kansas. Atchison v. King, 9 Kan. 550, 557 (1872). 
 
 Massachusetts. Hanscom v. Boston, 141 Mass. 242 (1886), (5 N. E. 
 Rep. 249) ; Stanton v. Salem, 145 Mass. 476 (1888), (14 N. E. Rep. 
 519); Welsh o. Amesbury, 170 Mass. 437 (1898), (49 N. E. Rep. 
 735). 
 
 Michigan. McKormick v. West Bay City, 110 Mich. 265, 269 
 (1896), (68 N. W. Rep. 148) ; Burleson v. Reading, 110 Mich. 512, 
 515 (1896), (68 N. W. Rep. 294) ; Handy v. Meridian Township, 114 
 Mich. 454 (1897), (72 N. W. Rep. 251). 
 
 Missouri. Maus v. Springfield, 101 Mo. 613, 618 (1890), (14 S. W. 
 
182 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 already pointed out,^ the corporation cannot escape re- 
 sponsibility for the performance of this duty by ordering 
 private persons to make the necessary repairs.^ 
 
 Whether or not the proper degree of care was exercised 
 after notice is commonly a question for the jury to decide, 
 upon a due consideration of all the facts in the case.^ 
 
 § 107. The Effect of the Nature of the Use of the High- 
 way. — The duty of municipal corporations is to maintain 
 
 Rep. 630) ; Barr v. Kansas City, 105 Mo. 550, 555 (1891), (16 S. W. 
 Rep. 483) ; Richardson «. Marceline, 73 Mo. App. 360, 364 (1897). 
 
 New Hampshire. Hubbard v. Concord, 35 IT. H. 52 (1857). 
 
 New York. Kunz v. Troy, 104 N. Y. 344 (1887), (10 N. E. Rep. 
 442) ; Farman v. Ellington, 46 Plun, 41, 45 (1887). 
 
 Ohio. Dayton v. Taylor's Adm'r, 62 Oh. St. 11 (1900), (56 N. E. 
 Rep. 480). 
 
 Tennessee. Knoxville v. Bell, 12 Lea, 157 (1883). 
 
 Vermont. Ozier v. Hinesburgh, 44 Vt. 220, 229 (1871) ; Spear v. 
 Lowell, 47 Vt. 692, 700 (1874). 
 
 Washington. Sproul y. Seattle, 17 Wash. 256 (1897), (49 Pao. Rep. 
 489). 
 
 Wisconsin. McCabe v. Hammond, 34 Wis. 590 (1874) ; Bloor v. 
 Delafield, 69 Wis. 273 (1887), (34 N. W. Rep. 115). 
 
 For a case where it was held that the circumstances called for a 
 greater degree of diligence than ordinary cases, see Chicago v. Hoy, 
 75 111. 530, 533 (1874). 
 
 Where it appeared that the defect was created on Saturday night, 
 and was not of so dangerous a character but that the road could be 
 used by the exercise of proper care, it was held that the defendant 
 corporation was not bound to tarn out and repair it on the Sabbath 
 day. The court adds, however, that if the defect was one eminently 
 dangerous to life and limb, it might be otherwise. Alexander u. 
 Oshkosh, 33 Wis. 277 (1873). 
 
 In Bradford v. Anniston, 92 Ala. 349 (1890), (8 So. Rep. 683), it 
 was held to be no excuse for a failure to perform this duty that the 
 overseer's men wei-e engaged in making repairs elsewhere, in the 
 absence of evidence to show that the defendant had done all it could 
 by means of barriers, signals, or otherwise to render the highway safe. 
 
 1 See § 104, ante. 
 
 2 Atherton v. Bancroft, 114 Mich. 241, 246 (1897), (72 N. W. Rep. 
 208). 
 
 » McCabe v. Hammond, 34 Wis. 590, 593 (1874). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 183 
 
 their highways in a safe condition for use in the ordinary- 
 modes. That is, they are only called upon to keep them 
 in a safe condition for such uses as reasonable care and 
 diligence could anticipate, having in view the exigencies 
 of travel in the particular locality.^ "The obligation of 
 these municipal corporations is," says Mr. Justice Mer- 
 rick in the Massachusetts case of Gregory v. Adams,^ 
 "not to keep all their highways and bridges in the high- 
 est possible state of repair, or so as to afford the utmost 
 convenience to those who have occasion to use them ; but 
 only in such condition that, having in view the common 
 and ordinary occasions for their use, and what may fairly 
 be required for the proper accommodation of the public 
 at large in the various occupations which may from time 
 to time be pursued, each particular way shall be so 
 wrought, prepared and maintained that it may justly be 
 considered, for all the uses and purposes for which it was 
 laid out and designed, to be reasonably safe and con- 
 venient. . . . They are not required to make prepara- 
 tions for the safety or convenience of those who undertake 
 to use those ways in an unusual or extraordinary manner, 
 involving peculiar and special peril and danger, whether 
 it be in respect to the kind or character of animals led 
 or driven, or the magnitude or construction of carriages 
 used, or the bulk or weight of property transported." 
 
 § 108. The Effect of the Extent of the Use of the High- 
 way. — What is necessary in order to keep a highway 
 reasonably safe for ordinary travel also depends in some 
 measure upon the extent of the use to which it is put. 
 Obviously ways that are used infrequently require the 
 
 1 Wilson V. Gratiby, 47 Conn. 59 (1879) ; Stinson v. Gardiner, 
 42 Me. 248 (1856) ; Gregory v. Adams, 14 Gray (Mass.), 242 (1859) ; 
 Sewell V. Cohoes, 75 N. Y. 45 (1878) ; Norristown v. Moyer, 67 Pa. St. 
 355 (1871). 
 
 2 14 Gray (Mass.), 242 (1859), at pages 246 and 248. 
 
184 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 exercise of less care and watchfulness on the part of the 
 municipal authorities in order to keep them reasonably 
 safe than those in the heart of a city where travel is con- 
 stant and heavy. This does not mean, of course, that the 
 duty of municipal corporations relative to highways is 
 lessened or changed in any degree by the extent of their 
 use: that remains the same in every case, — to keep them 
 reasonably safe. It simply means that the question what 
 is a reasonably safe way is a question of fact, depending 
 upon all the circumstances, and that the quantity and 
 variety of the travel over it is one of those circumstances 
 which is to be taken into consideration.^ 
 
 § 109. The Effect of the Kstent of the Highways. — The 
 extent of the public ways of a municipality does not affect 
 the degree of care that it is bound to bestow upon them : 
 whether few or many miles in extent, it must exercise 
 such care over them as shall keep them in a reasonably 
 safe condition for travel in the ordinary modes. All the 
 authorities seem to agree upon this much. Some of 
 them, however, go one step further and point out that the 
 extent of the highways of a town is another of those facts 
 that may be material in determining the question whether 
 or not, in any particular case, proper care was exercised. 
 The weight of authority may perhaps be fairly said to 
 
 ' Connecticut. Davis u. Guilford, 55 Conn. 351, 357 (1887), (11 Atl. 
 Kep. 350). 
 
 Illinois. Flora v. Naney, 136 111. 45, 48 (1891), (26 N. E. Eep. 
 645). 
 
 Iowa. Graham v. Oxford, 105 la. 705 (1898), (75 N. W. Rep. 
 473). 
 
 Massachusetts. Fitz v. Boston, 4 Cush. 365 (1849). 
 
 Mississippi. Whitfield v. Meridian, 66 Miss. 570, 575 (1889), (6 
 So. Kep. 244). 
 
 New York. Glasier v. Hebron, 131 K. Y. 447, 452 (1892), (80 N. E. 
 Rep. 239). 
 
 Pennsylvania. Fritsch v. Allegheny, 91 Pa. St. 226, 229 (1879). 
 
THE LIABILITY KELATIVE TO STREETS AND HIGHWAYS. 185 
 
 support the rule that evidence of the number of miles 
 of public ways within the limits of the defendant 
 corporation, to which it must give equal attention, is 
 competent.^ 
 
 § 110. The Eflfect of the Expense of maintaining the High- 
 ways. — Since unreasonable things are not to be exacted 
 from municipal corporations, the element of expense may 
 have an important bearing upon the question what it is 
 reasonable for them to do in order to keep their highways 
 safe for ordinary travel. It is not that there is one stand- 
 ard of duty for the wealthy municipality and another for 
 the poor town. The standard of duty for both is the 
 same. But it is that that standard is the exercise of rea- 
 sonable care and diligence, — a standard that necessarily 
 varies somewhat according to the circumstances of each 
 case. And the element of expense has been held to be 
 one of those circumstances. Thus where a traveller was 
 injured by being overturned and thrown from his sleigh 
 by a snowdrift in the highway, it was held that the de- 
 fendant town might show the actual cost of clearing the 
 roads within its limits after the storm that caused the 
 drift in question, and the estimated cost of clearing them 
 if a way for travel had been opened along the middle of 
 the road regardless of drifts, instead of around them as 
 
 I Massachusetts. Sanders v. Palmer, 154 Mass. 475 (1891), (28 
 N. E. Rep. 778) ; Weeks v. Needham, 156 Mass. 289 (1892), (31 N. E. 
 Kep. 8). 
 
 Michigan. Medina Township v. Perkins, 48 Mich. 67 (1882), 
 (11 N. W. Rep. 810). 
 
 New York. Pomfrey v. Saratoga Springs, 104 N. T. 459, 470 
 (1887), (11 N. E. Rep. 43); Lane v. Hancock, 142 N. Y. 510 (1894), 
 (37 N. E. Rep. 473). 
 
 Contra : Iowa. Lindsay v. Des Moines, 68 la. 868 (1886), (27 IST. W. 
 Rep. 283). 
 
 Nebraska. Lincoln v. Smith, 28 Neb. 762, 783 (1890), (45 IST. W. 
 Rep. 41). 
 
186 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 had been done, together with the town valuation and the 
 amount expended each year for the repair of highways. ^ 
 
 § 111. The Effect of a Lack of Means with which to make 
 Repairs. — The duty of municipal corporations relative to 
 highways is no greater than the power conferred upon 
 them for its performance.^ Hence it is the invariable 
 rule that they cannot be required to make repairs upon 
 their public ways, which will be beyond their corporate 
 power either to raise the money to pay for, or to have 
 made by the use of any other means which they have at 
 their command. 
 
 A lack of means with which to make needed repairs 
 does not, however, necessarily release a municipality 
 from this duty to keep its highways reasonably safe for 
 ordinary travel. It is still bound to protect the traveller 
 so far as it has the power. If, therefore, through a want 
 of funds or other resources, it cannot restore a defective 
 way to proper condition, it must then take steps either to 
 close it to public travel, or to guard the dangerous place 
 in it by suitable barriers, or to employ some other effec- 
 tive means to warn the public of the danger, until such 
 time as it can again put the road in proper repair.^ 
 
 § 112. The Effect of the Location of Roads operated by- 
 Private Corporations within the Highway. — Neither the 
 fact that a railroad crosses or passes along a public way 
 at grade, nor the fact that street-railway tracks have been 
 laid through the streets, of itself relieves a municipal 
 corporation from its duty to maintain such ways in a 
 
 1 Eooney v. Randolph, 128 Mass. 580 (1880). 
 
 Accord: Hayes v. Cambridge, 136 Mass. 402 (1884); s. c. 138 
 Mass. 461 (1885); Perry Township v. John, 79 Pa. St. 412 (1875). 
 
 Contra: Winship v. Enfield, 42 N. H. 197 (1860). 
 
 ^ See § 138, post, and cases there cited. 
 
 8 Birmingham v. Lewis, 92 Ala. 352 (1890), (9 So. Rep. 243) ; 
 Carney v. Marseilles, 136 III. 401 (1891), (26 N. E. Rep. 491). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 187 
 
 reasonably safe condition, except in so far as it may be 
 actually prevented from performing that duty by the neces- 
 sary use of the tracks by the private corporations own- 
 ing them. As a general rule, therefore, a municipality is 
 primarily responsible for injuries resulting from defects 
 in that part of a highway which is within the limits of 
 the location of a railroad,^ or of a street railway,^ even 
 though the defect is caused by the negligence of the agents 
 of those corporations. But if the defect is due to matters 
 that a proper construction and operation of such roads 
 necessarily place it beyond the power of the municipal 
 corporation to remedy, there is no responsibility.^ 
 
 § 113. The Effect of licensing the Creation of the Defec- 
 tive Condition. — There is substantial agreement among 
 
 1 Maine. Phillips v. Veazie, 40 Me. 96 (1855). 
 Massachusetts. Davis v. Leominster, I Allen, 182 (1861) ; Pollard 
 
 V. Woburn, 104 Mass. 84 (1870). 
 
 Minnesota. Campbell v. Stillwater, 32 Minn. 308 (1884), (20 IST. W. 
 Kep. 320). 
 
 New Hampshire. Willey v. Portsmouth, 35 N. H. 303, 314 (1857). 
 
 Ohio. Zanesville v. Fannan, 53 Oh. St. 605 (1895), (42 N. E. Rep. 
 703). 
 
 2 Indiana. Michigan City v. Boeckling, 122 Ind. 39 (1889), (23 
 N. E. Rep. 518). 
 
 Massachusetts. Prentiss u. Boston, 112 Mass. 43, 48 (1873) ; Hawks 
 V. Northampton, 116 Mass. 420 (1875) ; Lawrence v. New Bedford, 
 160 Mass. 227 (1893), (35 N. E. Rep. 459). 
 
 Rhode Island. Watson u. Tripp, 11 R. I. 98 (1874). 
 
 ' Massachusetts. Jones v. Waltham, 4 Cush. 299 (1849); Vinal v. 
 Dorchester, 7 Gray, 421 (1856) ; Lawrence v. New Bedford, 160 Mass. 
 227 (1893), (35 N. E. Rep. 459). 
 
 Neiv Hampshire. Willey v. Portsmouth, 35 N. H. 303, 314 (1857). 
 
 Ohio. SteubenvOle v. McGill, 41 Oh. St. 235 (1884). 
 
 In Fowler v. Gardner, 169 Mass. 505, 509 (1897), (48 N. E. Rep. 
 619), it was held that the defendant town was entitled to have the 
 jury instructed that although portions of the construction of a street 
 railway might present obstacles to travel and dangers to those using 
 vehicles, yet if such portions were necessary to its operation as a street 
 railway, they were not defects in the highway for which it was liable. 
 
188 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 the authorities that the granting of a license, in the ex- 
 ercise of a lawful right, to private persons to make an 
 excavation in the highway, or to leave therein articles 
 that constitute an obstruction, does not relieve municipal 
 corporations from all responsibility as to such highway. 
 They still have a duty to perform in order to prevent 
 injury to travellers. ^ 
 
 The real difference of opinion comes as to the extent of 
 that duty. According to one view the granting of such 
 permission does not make the municipality responsible 
 for the improper conduct of the licensee or of those 
 employed by him to do the work. It is not bound to keep 
 a constant watch over them, but only to exercise due care 
 itself in keeping the way in a reasonably safe condition 
 for use by the public. In short, its responsibility is con- 
 fined to its own negligence in the care of the streets, and 
 
 1 Connecticut. Boucher v. New Haven, 40 Conn. 456, 460 (1873), 
 as explained in Cummings u. Hartford, 70 Conn. 115, 123 (1897), 
 (38 Atl. Kep. 916). 
 
 Georgia. Augusta v. Cone, 91 Ga. 714 (1893), (17 S. E. Eep. 
 1005). 
 
 Indiana. Warsaw v. Dunlap, 112 Ind. 576 (1887), (11 N. E. Rep. 
 623). 
 
 Kansas. Abilene u. Cowperthwait, 52 Kan. 324 (1893), (34 Pac. 
 Kep. 795). 
 
 Michigan. O'Rourke v. Monroe, 98 Mich. 520 (1894), (57 N. W. 
 Rep. 738). 
 
 Missouri. Stephens v. Macon, 83 Mo. 345 (1884). 
 
 New York. Masterton v. Mount Vernon, 58 N. Y. 391 (1874). 
 
 Rhode Island. Seamons v. Pitts, 20 R. I. 443 (1898), (40 Atl. 
 Rep. 3). 
 
 Washington. Sutton v. Snohomish, 11 Wash. 24 (1895), (39 Pac. 
 Rep. 273); Sproul v. Seattle, 17 Wash. 256 (1897), (49 Pac. Rep. 
 489). 
 
 United States. Cleveland v. King, 132 U. S. 295, 303 (1889), (10 
 S. Gt. Rep. 90) ; District of Columbia o. Woodbury, 136 U. S. 450, 
 464 (1889), (10 S. Ct. Rep. 990). 
 
THE LIABILITY RELiTITB TO STREETS AND HIGHWAYS. 189 
 
 does not extend to the negligence of the servants or 
 agents of a private citizen who is acting in the course 
 of a work lawfully undertaken, under a license, for his 
 own purposes.^ By the other view, the municipality by 
 licensing the work becomes directly responsible for 
 the negligent acts of those engaged in its performance. 
 It is in effect as though the work was done by the city 
 itself. 2 
 
 If a municipal corporation has no authority to grant the 
 license under which the third person acted in creating 
 the defective condition, a materally different case is pre- 
 sented. By undertaking to grant such a license, it com- 
 mits a wrong itself which is sufficient to make it directly 
 responsible for any defects in the highway that the licensee 
 may create, he being regarded simply as the agent through 
 whom it does the unlawful act. The distinction between 
 such cases and those where the license is lawful is, of 
 course, that here the granting of the permission was a 
 wrongful act on the part of the municipality which ren- 
 dered it responsible for all results flowing from it, while 
 in the latter cases the thing licensed is legal, and the 
 wrong consists merely in the manner in which it is 
 carried out.^ 
 
 1 Indiana. Dooley v. Sullivan, 112 Ind. 451 (1887), (14 N. E. 
 Rep. 566) ; Warsaw v. Dunlap, 112 Ind. 576, 580 (1887), (11 N. E. 
 Kep. 623). 
 
 New York. Masterton v. Mount Vernon, 58 N. Y. 301 (1874); 
 McDermott v. Kingston, 19 Hun, 198 (1879). 
 
 Pennsylvania. Susquehanna Depot v. Simmons, 112 Pa. St. 384 
 (1886), (5 Atl. Rep. 434). 
 
 United States. Denver v. Sherret, 88 Fed. Rep. 226 (1898). 
 
 2 Savannah v. Donnelly, 71 Ga. 258 (1883); Stephens v. Macon, 
 83 Mo. 345 (1884); Haniford v. Kansas City, 103 Mo. 172 (1890), 
 (15 S. W. Rep. 753); and see also Boucher v. New Haven, 40 Conn. 
 456, 460 (1873). 
 
 3 Stanley v. Davenport, 54 la. 463 (1880), (2 N". W. Rep. 1064) ; 
 
190 LIABILITY OP MUNICIPAL COEPOEATIONS FOR TORT. 
 
 And so also where the thing licensed is dangerous in 
 itself, it has been held that the corporation is responsible 
 for any injuries resulting to a traveller.^ 
 
 G. The Duty as to Railings, Barriees, and Lights. 
 
 § 114. The Duty to erect Railings. — The obligation of 
 municipal corporations to erect and maintain suitable 
 railings grows out of the duty that rests upon them to 
 maintain their highways in a reasonably safe condition 
 for use by the public. Such protection must be provided 
 where, and only where, it is necessary in order to render 
 the way itself safe for ordinary travel.^ They are not 
 
 Cohen v. Mayor, etc. of New York, 113 N. Y. 532 (1889), (21 N. E. 
 Kep. 700). See also Green v. Portland, 32 Me. 431 (1851). 
 
 1 Warsaw u. Dunlap, 112 Ind. 576 (1887), (11 N. E. Eep. 623), 
 semble; Little v. Madiaon, 42 Wis. 643 (1877). 
 
 2 Connecticut. Beardsley v. Hartford, 50 Conn. 529 (1883). 
 Georgia. Zettler v. Atlanta, 66 Ga. 195 (1880). 
 Illinois. Chicago v. Gallagher, 44 111. 295 (1867). 
 Indiana. Higert v. Greenoastle, 43 Ind. 574 (1873). 
 Iowa. Manderschid o. Dubuque, 29 la. 73 (1870). 
 
 Maine. Willey v. Ellsworth, 64 Me. 57 (1874); Haskell v. New 
 Gloucester, 70 Me. 305 (1879). 
 
 Massachusetts. Stockwell v. Fitchburg, 110 Mass. 305 (1872); 
 Stone V. Attleborough, 140 Mass. 328 (1885), (4 N. E. Rep. 570); 
 Richardson v. Boston, 156 Mass. 145 (1892), (30 N. E. Rep. 478). 
 
 Michigan. Harris v. Clinton Township, 64 Mich. 447 (1887), (31 
 N. W. Rep. 425). 
 
 Minnesota. St, Paul v. Kuby, 8 Minn. 154 (1863). 
 
 Nebraska. South Omaha v. Cunningham, 31 Neb. 316 (1891), (47 
 N. W. Rep. 930). 
 
 New Hampshire. Willey v. Portsmouth, 35 N. H. 303, 314 (1857); 
 Davis u. Hill, 41 N. H. 329 (1860). 
 
 New York. Maxim v. Champion, 50 Hun, 88 (1888), affirmed, 
 119 N. Y. 626 (1890), (23 N. E. Rep. 1144); Ivory v. Deerpark, 116 
 N. Y. 476 (1889), (22 N. E. Rep. 1080). 
 
 North Carolina. Bunch v. Edenton, 90 N. C. 431 (1884). 
 
 Pennsylvania. Lower Macungie Township v. Merkhoffer, 71 Pa. St. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 191 
 
 bound, therefore, to put up a railing in order to prevent 
 travellers from straying, either purposely or accidentally, 
 out of the highway, even though there may be a danger- 
 ous place at some distance from the travelled part which 
 may be reached by straying ; ^ nor in order to prevent 
 children from playing upon adjacent areas. ^ Nor, again, 
 in order to prevent frightened animals from escaping 
 from the highway;^ and it has been held that the fact 
 that the near location of a railroad might make such an 
 occurrence probable would not alter this rule.* And a 
 municipality is under no obligation to anticipate and 
 
 276 (1872); Hey v. Philadelphia, 81 Pa. St. 44 (1876); Plymouth 
 Township v. Graver, 125 Pa. St. 24 (1889), (17 Atl. Rep. 249); 
 Trexler v. Greenwich Township, 168 Pa. St. 214 (1895), (31 Atl. Rep. 
 1090). 
 
 Rhode Island. Chapman v. Cook, 10 R. I. 304 (1872). 
 
 Tennessee. Niblett o. Nashville, 12 Heisk. 684 (1874). 
 
 Vermont. Drew v. Sutton, 55 Vt. 586 (1882). 
 
 Wisconsin. Green v. Bridge Creek, 38 Wis. 449 (1875) ; Prideaux 
 V. Mineral Point, 43 Wis. 513 (1878). 
 
 1 Illinois. Monmouth v. Sullivan, 8 111. App. 50 (1880). 
 
 Maine. Morgan v. Hallowell, 57 Me. 375 (1869) ; Willey v. Ells- 
 worth, 64 Me. 57, 62 (1874). 
 
 Massachusetts. Sparhawk v. Salem, 1 Allen, 30 (1861) ; Puffer v. 
 Orange, 122 Mass. 389 (1877). 
 
 Minnesota. McHugh v. St. Paul, 67 Minn. 441, 443 (1897), (70 
 N. W. Rep. 5). 
 
 New York. Monk v. New Utrecht, 104 N. Y. 552, 556 (1887), 
 (11 N. E. Rep. 268). 
 
 Ohio. Kelley v. Columbus, 41 Oh. St. 263 (1884). 
 
 Rhode Island. Chapman v. Cook, 10 R. I. 304 (1872). 
 
 Wisconsin. Green v. Bridge Creek, 38 Wis. 449 (1875). 
 
 = Talty V. Atlantic, 92 la. 135 (1894), (60 N. W. Rep. 516) ; Clark 
 V. Richmond, 83 Va. 355, 359 (1887), (5 S. E. Rep. 369). 
 
 8 Bureau Junction v. Long, 56 111. App. 458 (1894) ; Moss v. Bur- 
 lington, 60 la. 438 (1883), (15 N. W. Rep. 267); Adams v. Natick, 
 13 Allen (Mass.), 429 (1866). But see Tallahassee v. Fortune, 3 Fla. 
 19, 26 (1850). 
 
 * Adams v. Natick, 13 Allen (Mass.), 429 (1866). 
 
192 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 guard against by railings ordinary dangers that are likely 
 to arise, such as the formation of ice upon adjacent land 
 which was not otherwise dangerous, but which with the ice 
 upon it was a danger to persons who strayed on to it.i As 
 was said in the Massachusetts case of Damon v. Boston : ^ 
 "The danger which requires a railing must be of an 
 unusual character, such as bridges, declivities, excava- 
 tions, steep banks, or deep water. Spaces adjoining 
 roads, streets, and sidewalks, and unsuitable for travel, 
 are often left open in both country and city; and a town 
 or city is not bound to fence against them, unless their 
 condition is such as to expose travellers to unusual 
 hazard." 
 
 § 115. The Test of the Necessity of a Railing. — While it 
 may be very difficult, perhaps impossible, to define by any 
 general proposition the exact extent of the obligation of 
 municipal corporations to erect railings along their high- 
 ways, there is a practical test that may aid materially in 
 the determination of any particular case. That practical 
 test is whether there is a dangerous object or place so 
 near to the line of travel as to make the use of the high- 
 way itself unsafe in the absence of a railing. If there 
 is such an object or place so located, the municipality is 
 bound to maintain sufficient guards to protect travellers 
 from the danger incident to it. There appears to be no 
 difference of opinion as to this rule.^ 
 
 1 Damon v. Boston, 149 Mass. 147 (1889), (21 N. E. Eep. 
 235). 
 
 2 Connecticut. Beardsley v. Hartford, 50 Conn. 529 (1883). 
 
 Massachusetts. Coggswell v. Lexington, 4 Cush. 307 (1849) ; Hay- 
 den V. Attleborough, 7 Gray, 838 (1856); Sparhawk v. Salem, 1 Allen, 
 30 (1861) ; Alger v. Lowell, 3 Allen, 402 (1862); Adams v. Natick, 13 
 Allen, 429 (1866); Murphy v. Gloucester, 105 Mass. 470, 472 (1870); 
 Marshall v. Ipswich, 110 Mass. 522 (1872); Purple v. Greenfield, 138 
 Mass. 1 (1884); Logan v. New Bedford, 157 Mass. 534 (1893), (32 
 
THE LIABILITY EELATITE TO STREETS AND HIGHWAYS. 193 
 
 It becomes thus ordinarily a question of fact for the 
 jury to determine how near to the highway a dangerous 
 place must be in order to render the want of a railing a 
 culpable defect.^ But if, in view of the evidence most 
 
 jr. E. Rep. 910) ; Tisdale v. Bridgewater, 167 Mass. 248 (1897), (45 
 N. E. Rep. 730). 
 
 Missouri. Bassett v. St. Joseph, 53 Mo. 290 (1873). 
 
 New Hampshire. Stack v. Portsmouth, 52 N. H. 221 (1872). 
 
 New York. Ivory v. Deerpark, 116 N. Y. 476 (1889), (22 N. E. 
 Rep. 1080). 
 
 North Carolina. Bunch v. Edenton, 90 N. C. 431 (1884). 
 
 Tennessee. Niblett v. Nashville, 12 Heisk. 684 (1873). 
 
 Virginia. Clark v. Richmond, 83 Va. 355 (1887), (5 S. E. Rep. 
 369). 
 
 West Virginia. Biggs v. Huntington, 32 W. Va. 55, 64 (1889), 
 (9 S. E. Rep. 51). 
 
 In Clark v. Richmond, 83 Va. 355, 358 (1887), (5 S. E. Rep. 369), 
 the court qualifies this doctrine by saying : " In order to render the 
 corporation liable for injuries occasioned by such excavation, the ex- 
 cavation must substantially adjoin the highway, so that one making a 
 false step, or affected by sudden giddiness, might be thrown into the 
 excavation. But if, in order to reach the place of danger, the party 
 injured must become an intruder or trespasser upon the premises of 
 another, the case will be different, for in such case there is no breach 
 of duty from which the liability to respond in damages can result." 
 
 1 Georgia. Atlanta v. Wilson, 59 Ga. 544 (1887). 
 
 Iowa. Manderschid v. Dubuque, 29 la. 73 (1870). 
 
 Maine. Morse v. Belfast, 77 Me. 44 (1885). 
 
 Massachusetts. Barnes v. Chicopee, 138 Mass. 67 (1884). 
 
 Michigan. Malloy v. Walker Township, 77 Mich. 448 (1889), (43 
 N. W. Rep. 1012). 
 
 Nebraska. South Omaha v. Cunningham, 31 Neb. 316 (1891), (47 
 N. W. Rep. 930). 
 
 New Hampshire. Woodman v. Nottingham, 49 N. H. 387 (1870). 
 
 New York. Ivory v. Deerpark, 116 N. Y. 476 (1889), (22 N. E. 
 Rep. 1080) ; Burns v. Yonkers, 83 Hun, 211 (1894), (31 N. Y. Supp. 
 757). 
 
 Pennsyloania. Burrell Township v. Uncapher, 117 Pa. St. 353 
 (1887), (11 Atl. Rep. 619); Ewing v. North Versailles Township, 146 
 Pa. St. 309 (1892), (23 Atl. Rep. 338) ; Wellman v. Susquehanna 
 Depot, 167 Pa. St. 239 (1895), (31 Atl. Rep. 566). 
 
 Vermont. Drew v. Sutton, 55 Vt. 586 (1882). 
 
 13 
 
194 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 favorable to the plaintiff, the danger is so slight that it 
 would be unreasonable to require the corporation to pro- 
 vide a railing, the court may decide the question as a 
 matter of law.i 
 
 In order to determine whether a dangerous place is in 
 such close proximity to the highway as to render travel- 
 ling upon it unsafe, that proximity is to be considered 
 with reference to the highway as travelled and as used for 
 public travel, rather than as located. ^ 
 
 But while the proximity of some dangerous object or 
 place is the "essential and invariable element" in all 
 cases where a railing is required, the circumstances sur- 
 rounding the particular locality in question must also be 
 taken into consideration. Thus, the character of the 
 intervening ground, the risk of coming upon the danger- 
 ous object or place, the degree of danger incurred if one 
 does come upon it, and like practical questions, are all 
 involved in the issue. ^ 
 
 1 Soannal v. Cambridge, 163 Mass. 91, 93 (1895), (39 N". E. Rep. 
 790); Seymef v. Lake, 66 Wis. 651 (1886), (29 N. W. Rep. 554). 
 
 In Massachusetts it has been held as a matter of law that a danger- 
 ous place was too remote from the travelled path to make the absence of 
 a railing a defect in the highway where it was thirty-four feet distant, 
 Barnes v. Chicopee, 138 Mass. 67(1884); where it was twenty-five feet 
 distant. Murphy o. Gloucester, 105 Mass. 470 (1870) ; Hudson v. Marl- 
 borough, 154 Mass. 218 (1891), (28 N. E. Rep. 147) ; where it was 
 twenty to thirty feet distant, Puffer v. Orange, 122 Mass. 389 (1877); 
 Daily v. Worcester, 131 Mass. 452 (1881) ; where it was seventeen feet 
 distant, Scannal v. Cambridge, 163 Mass. 91, 93 (1895), (39 N. E. 
 Rep. 790). But where the dangerous place was twelve feet distant 
 from the travelled path, it was held that it could not be said as a 
 matter of law that the risk was so small as to make it unreasonable 
 to require the town to provide a railing. Tisdale v. Bridgewater, 167 
 Mass. 248 (1897), (45 N. E. Rep. 730). 
 
 2 Warner v. Holyoke, 112 Mass. 362 (1873); Barnes v. Chicopee, 
 138 Mass. 67 (1884); Hannibal v. Campbell, 86 Fed. Rep. 297 (1898); 
 and see Ivory i; Deerpark, 116 N". Y. 476 (1889), (22 N. E. Rep. 1080). 
 
 3 See Adams v. Natick, 13 Allen (Mass.), 429 (1866). 
 
THE LIABILITY EELATITB TO STREETS AND HIGHWAYS. 195 
 
 § 116. The Kind of Railing required. — Municipal corpo- 
 rations are ordinarily bound to anticipate and provide for 
 the usual demands of travel upon their highways. In the 
 matter of railings, therefore, they are bound simply to 
 provide such a kind as is suitable for the ordinary exi- 
 gencies of travel upon the particular road at the particular 
 place. ^ 
 
 The question of the sufficiency of the railing provided 
 by the municipal authorities is usually one of fact for the 
 jury to decide upon all the evidence;^ but it may be deter- 
 mined by the court as a matter of law where the facts are 
 clear and undisputed.^ 
 
 § 117. Barriers erected to guard an Excavation or to close 
 a Highway. — Travellers upon the public ways, in the ab- 
 sence of anything to the contrary, have a right to assume 
 that a way which appears to be open and used for public 
 travel has not been discontinued nor rendered dangerous 
 by reason of the existence of unguarded excavations. If, 
 therefore, municipal corporations make, or allow to be 
 made, such excavations within a highway, they are bound 
 to erect such barriers or other safeguards as will render 
 travel upon the rest of the highway reasonably safe.* 
 
 1 Lyman v. Amherst, 107 Mass. 339, 346 (1871) ; Lineburg v. St. 
 Paul, 71 Minn. 245 (1898), (73 N. W. Rep. 728). 
 
 2 Lyman v. Amherst, 107 Mass. 339 (1871); St. Paul v. Kuby, 
 8 Minn. 154, 159 (1863). 
 
 8 Tarras u. AVinona, 71 Minn. 22 (1897), (73 N. W. Rep. 505); 
 Glasier v. Hebron, 131 N. Y. 447 (1892), (30 N. E. Rep. 239). 
 
 ■* Georgia. Savannah v. Waldner, 49 Ga. 316 (1873). 
 
 Illinois. Chicago v. Gallagher, 44 111. 295 (1867) ; Aurora v. Rocka- 
 brand, 149 111. 399 (1894), (36 N. E. Rep. 1004); Canton v. Dewey, 
 71 111. App. 346 (1897). 
 
 Indiana. Alexandria v. Young, 20 Ind. App. 672 (1898), (51 N. E. 
 Rep. 109). 
 
 Iowa. Crystal v. Des Moines, 65 la. 502 (1885), (22 N. W. 
 Rep. 646); Hall v. Blanson, 99 la. 698 (1896), (68 N. W. Rep. 
 922). 
 
19.6 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 And if they close a public way, either temporarily or 
 permanently, they must show, in order to escape liability 
 to a person injured while using, or attempting to use, 
 such way, that it was in fact closed by suitable and suflB- 
 cient barriers.^ 
 
 Kansas. Wyandotte v. Gibson, 25 Kan. 236 (1881). 
 
 Maine. Kimball v. Bath, 38 Me. 219 (1854) ; Butler w. Bangor, 67 
 Me. 885 (1877). 
 
 Massachusetts. Myer3 v. Springfield, 112 Mass. 489 (1873). 
 
 Michigan. Wakeham v. St. Clair Township, 91 Mich. 15 (1892), 
 (51 N. W. Rep. 696) ; O'Rourke v. Monroe, 98 Mich. 520, 522 (1894), 
 (57 N. W. Rep. 738). 
 
 Minnesota. O'Leary u. Mankato, 21 Minn. 65 (1874). 
 
 Missouri. McCarrollu. Kansas City, 64 Mo. App. 283 (1895). 
 
 Nebraska. Lincoln v. Calvert, 39 Neb. 305 (1894), (58 N. W. Rep. 
 115). 
 
 Neiv York. Storrs v. Utica, 17 N. Y. 104 (1858) ; Brusso v. Buffalo, 
 90 N. Y. 679 (1882); Bryant v. Randolph, 133 N. Y. 70 (1892), (30 
 N. E. Rep. 657). 
 
 Oregon. McAllister v. Albany, 18 Oreg. 426 (1890), (23 Pac. Rep. 
 845). 
 
 Tennessee. Memphis v. Lasser, 9 Humph. 757 (1849). 
 
 Utah. Naylor v. Salt Lake City, 9 Utah, 491 (1894), (35 Pac. Rep. 
 509). 
 
 Virginia. Norfolk v. Johnakin, 94 Va. 285 (1897), (26 S. E. Rep. 
 830). 
 
 Washington. Sutton u. Snohomish, 11 Wash. 24 (1895), (39 Pac. 
 Rep. 273). 
 
 West Virginia. Wilson v. Wheeling, 19 W. Va. 323, 347 (1882.) 
 
 Wisconsin. Milwaukee v. Davis, 6 Wis. 377 (1857); Klatt i;. Mil- 
 waukee, 53 Wis. 196 (1881), (10 N. W. Rep. 162); Hartu. Red Cedar, 
 63 Wis. 634 (1885), (24 N. W. Rep. 410). 
 
 1 Connecticut. Munson v. Derby, 37 Conn. 298 (1870). 
 
 Maine. Phillips v. Veazie, 40 Me. 96 (1855). 
 
 Masstichusetts. White i>. Boston, 122 Mass. 491 (1877). 
 
 Michigan. Southwell v. Detroit, 74 Mich. 438 (1889), (42 N. W. 
 Rep. 118). 
 
 Missouri. Stephens v. Macon, 83 Mo. 345 (1884). 
 
 Wisconsin. Wiltse v. Tilden, 77 Wis. 152 (1890), (46 N. W. Rep. 
 234) ; Schuenke v. Pine River, 84 Wis. 669 (1893), (54 N. W. Rep. 
 1007) ; Bills v. Kaukauna, 94 Wis. 310 (1896), (68 N. W. Rep. 992). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 197 
 
 If a .municipality has performed its full duty in this 
 regard by building a proper barricade, it will not be liable 
 to a person injured in consequence of such excavation, or 
 while travelling upon such discontinued road, even if the 
 barriers were afterwards removed by third persons or by 
 some accident, unless it further appears that it knew, or, 
 under the circumstances of the particular case, ought to 
 have known, of such removal.^ 
 
 § 118. The Erection of Barriers to protect Travellers enter- 
 ing the Highway from Private Ways. — There is no positive 
 rule of law requiring persons to enter a highway in any 
 particular manner or at any fixed place. Hence it is not 
 material, so far as the duty of municipal corporations to 
 keep their public ways reasonably safe for travel, is con- 
 cerned, whether they enter and are lawfully upon the 
 highway by passing over private or public ways. The 
 weight of authority, therefore, favors the rule that if 
 there is a private way leading into a public way, over 
 
 1 Indiana. Dooley v. Sullivan, 112 Ind. 451 (1887), (14 N. E. 
 Kep. 566). 
 
 Iowa. Theissen v. Belle Plaine, 81 la. 118 (1890), (46 N. W. Rep. 
 854). 
 
 Massachusetts. Doherty v. Waltham, 4 Gray, 596 (1855) ; Myers v. 
 Springfield, 112 Mass. 489 (1873). 
 
 Michigan. Welsh v. Lansing, 111 Mich. 589 (1897), (70 N. W. 
 Rep. 129). 
 
 Missouri. Myers v. Kansas City, 108 Mo. 480, 487 (1891), (18 
 S. W. Rep. 914). 
 
 New Ym-k. Sevestre v. Mayor, etc. of New York, 47 N. Y. Sup. 
 Ct. 341 (1881). 
 
 Vermont. Mullen v. Rutland, 55 Vt. 77 (1883). 
 
 Washington. Sutton v. Snohomish, 11 Wash. 24 (1895), (39 Pac. 
 Eep. 273). 
 
 Wisconsin. Klatt v. Milwaukee, 53 Wis. 196 (1881), (10 N. W. 
 Rep. 162). 
 
 United States. District of Columbia v. Woodbury, 136 U. S. 450, 
 465 (1890), (10 S. Ct. Rep. 990). 
 
198 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 which there is known to be much travel, and if a traveller 
 entering the street laterally from such private way would, 
 while using due care, be exposed to the danger of an in- 
 jury in consequence of the existence of an excavation or 
 other defect within the highway, the municipality is as 
 much bound to erect barriers or to provide other safe- 
 guards to protect such travellers so entering the street, as 
 to guard those who come toward the defective spot in the 
 direct line of travel.^ 
 
 § 119. The Kind of Barriers required. — When erecting 
 barriers, it is the duty of municipal corporations to make 
 them of such height, strength, and materials as to render 
 the highway reasonably safe against all those exigencies 
 of travel which, in the course of the ordinary use of the 
 particular way, might fairly be foreseen and provided for. 
 They need not make them sufiScient for extraordinary 
 contingencies. 2 
 
 Whether the barriers erected by the corporation are 
 suitable and sufficient under the circumstances to protect 
 
 1 Burnham ;'. Boston, 10 Allen (Mass.), 290 (1865); Orme v. Rich- 
 mond, 79 Va. 86 (1884). But see Goodin v. Des Moines, 55 la. 67 
 (1880), (7 N. W. Rep. 411). 
 
 2 Morton v. Frankfort, 55 Me. 46 (1867) ; Welsh v. Lansing, 111 
 Mich. 589 (1897), (70 N. W. Rep. 129) ; Stacy v. Phelps, 47 Hun 
 (N. Y.), 54 (1888) ; Bills v. Kaukauna, 94 Wis. 310 (1896), (68 N. W. 
 Rep. 992). 
 
 In Weirs v. Jones County, 86 la. 625 (1892), (53 N. W. Rep. 321), it 
 appeared that sign boards bearing the words "bridge unsafe " were 
 placed at each end of the structure. The court held that if they were 
 placed in a conspicuous position and were of such a construction as 
 would give a warning to a person in the exercise of ordinary care, they 
 were sufficient ; and that a person who attempted to cross the bridge 
 would be chargeable with contributory negligence, even though Le 
 could not read the English language, in which the inscription was 
 written. 
 
 For a case where a barrier made of barbed wire was held to be 
 unsuitable and dangerous, see Bills v. Kaukauna, 94 Wis. 810, 314 
 (1896), (68 N. W. Rep. 992). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 199 
 
 the traveller from the danger is usually a question for the 
 jury to decide.^ And the determination of the question 
 generally involves several considerations, such as the 
 situation of the highway; the modes commonly adopted 
 for guarding such dangerous places; the traveller's knowl- 
 edge of such modes; and similar facts.^ 
 
 § 120. Lights. — The obligation resting upon municipal 
 corporations is to keep their public ways reasonably safe 
 for ordinary travel not only during the daytime but also 
 in the night-time. Hence if a way, rendered dangerous 
 by excavations or obstructions, cannot be made reason- 
 ably safe for travel at night simply by the erection of 
 barriers, ordinary care requires the municipality to keep 
 sufficient lights burning to properly warn travellers of 
 the danger.^ And the fact that an electric light upon the 
 street happens to be located near-by does not necessarily 
 relieve it from this duty.* 
 
 1 Sterling v. Thomas, 60 111. 264 (1871); Howard u. Mendon, 117 
 Mass. 585 (1875); Norwood v. Somerville, 159 Mass. 105 (1893), (33 
 N. E. Kep. 1108) ; Sutton v. Snohomish, 11 Wash. 24, 32 (1895), (39 
 Pao. Rep. 273) ; District of Columbia v. Woodbury, 136 U. S. 450, 
 465 (1890). 
 
 = See White v. Boston, 122 Mass. 491 (1877). 
 
 8 Indianapolis v. Scott, 72 Ind. 196, 202 (1880) ; O'Rourke v. Mon- 
 roe, 98 Mich. 520, 522 (1894), (57 N. W. Rep. 738) ; Canavan v. Oil 
 City, 183 Pa. St. 611, 616 (1898), (38 Atl. Rep. 1096). 
 
 * Aurora v. Rockabrand, 149 111. 399, 402 (1894), (36 N. E. Rep. 
 1004) ; Naylor v. Salt Lake City, 9 Utah, 491 (1894), (35 Pac. Rep. 509). 
 
 In the above Illinois case, Mr. Justice Wilkin says, at page 402: 
 " It will not do to say that an electric light upon a street, however 
 bright, can always take the place of danger signals, where temporary 
 obstructions are placed upon the street. The object of a danger 
 signal is to direct the attention to a particular object, and warn those 
 approaching, of something unusual. The electric light may enable 
 those passing over the streets to see their way, and avoid others, 
 and things generally found on the street, but they give no special 
 warning whatever, and, as is well known from experience, are often 
 deceptive and bewildering." 
 
200 LIABILITY OP MUNICIPAL COEPOEATIONS FOR TOET. 
 
 Whenever lights are required as a warning, they must 
 be of such a character, and provided with sufficient oil, 
 so that they may remain lighted during the occasioa for 
 their use.^ 
 
 H. Notice of the Defect. 
 
 § 121. 'When Notice of the Defect must be shown. — The 
 liability of municipal corporations relative to highways, 
 as has been pointed out, rests solely upon negligence. 
 But before negligence can be predicated of them, they 
 must be in a position to act. No mere failure to remedy 
 defects of the existence of which they have no notice, 
 either actual or constructive, can be negligence. Hence 
 when a liability for injuries occasioned by a defect in the 
 highway that was caused by the action of persons for whose 
 acts the municipality is not responsible, or by the action 
 of the elements, or by a pure accident, is sought to be 
 enforced, the injured person must show that it actually 
 had notice, or, by the exercise of reasonable care and 
 diligence, might have had notice, of the defective 
 condition in time either to have remedied it before 
 the accident happened, or at least to have taken 
 such steps as would prevent the injury. In all such 
 cases, unless notice, either actual or constructive, is 
 shown, the corporation is not liable in a private 
 action. 2 
 
 1 Baker v. Grand Rapids, 111 Mich. 447, 449 (1897), (69 N. W. 
 Rep. 740). 
 
 " Ordinary care does not require that a watch be kept during the 
 night over an excavation, unless there are circumstances peculiar to 
 the particular case making it necessary." Dooley v. Sullivan, 112 Ind. 
 451, 452 (1887), (14 N. E. Rep. 566). 
 
 2 Alabama. Montgomery v. Wright, 72 Ala. 411, 420 (1882). 
 Colorado. Boulder v. Niles, 9 Col. 415 (1886), (12 Pac. Rep. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 201 
 
 Whether or not the defendant corporation in any par- 
 ticular case had notice of the defect that caused the injury 
 is usually a question of fact for the jury to determine.^ 
 
 632); Cunningham v. Denver, 23 Col. 18, 21 (1896), (45 Pac. Rep. 
 356). 
 
 Connecticut Cummings v. Hartford, 70 Conn. 115, 123 (1897), (38 
 Atl. Hep. 916). 
 
 Delaware. Seward v. Wilmington, 2 Marv. 189, 202 (1896), (42 
 Atl. Rep. 451). 
 
 District of Columbia. District of Columbia v. Payne, 13 App. Cas. 
 500 (1899). 
 
 Georgia. Augusta v. Hafers, 61 Ga. 48 (1878) ; Montezuma v. 
 Wilson, 82 Ga. 206, 209 (1888), (9 S. E. Rep. 17). 
 
 Illinois. Fahey v. Harvard, 62 111. 28 (1871) ; Chatsworth v. Ward, 
 10 111. App. 75 (1881) ; Mansfield v. Moore, 124 111. 133, 138 (1888), 
 (16 N. E. Rep. 246). 
 
 Indiana. Ft. Wayne v. De Witt, 47 Ind. 391 (1874) ; Dooley v. Sul- 
 livan, 112 Ind. 451 (1887), (14 N. E. Rep. 566) ; Warsaw v. Dunlap, 
 112 Ind. 576 (1887), (11 N. E. Rep. 623) ; Evansvilleu. Senhenn, 151 
 Ind. 42, 58 (1898), (47 N. E. Rep. 634). 
 
 Iowa. Jones v. Clinton, 100 la. 333 (1896), (69 N. W. Rep. 418). 
 
 Kansas. Jansen v. Atchison, 16 Kan. 358 (1876); McFarland v. 
 Emporia Township, 59 Kan. 568 (1898), (53 Pac. Rep. 864). 
 
 Maine. Bartlett v. Kittery, 68 Me. 358 (1878) ; Farrell v. Oldtown, 
 69 Me. 72 (1879). 
 
 Massachusetts. Hansoom v. Boston, 141 Mass. 242 (1886), (5 N. E. 
 Rep. 249) ; Blake v. Lowell, 143 Mass. 296 (1887), (9 N. E. Rep. 627); 
 Stanton v. Salem, 145 Mass. 476 (1888), (14 N. E. Rep. 519) ; Welsh 
 V. Amesbury, 170 Mass. 437 (1898), (49 N. E. Rep. 735). 
 
 Michigan. Dewey v. Detroit, 15 Mich. 307 (1867) ; Woodbury v. 
 Owosso, 64 Mich. 239, 248(1887), (31 N. W. Rep. 130) ; Wakeham v. 
 St. Clair Township, 91 Mich. 15 (1892), (51 N. W. Rep. 696). 
 
 Minnesota. Pottner v. Minneapolis, 41 Minn. 73 (1889), (42 N. W. 
 Rep. 784). 
 
 Missouri. Schweickhardt v. St. Louis, 2 Mo. App. 571, 579 (1876) ; 
 Bonine v. Richmond, 75 Mo. 437, 439 (1882). 
 
 Nebraska. Davis v. Omaha, 47 Neb. 836 (1896), (66 N. W. Rep. 859). 
 
 New Hampshire. Johnson v. Haverhill, 35 N. H. 74 (1857) ; Lam- 
 bert V. Pembroke, 66 N. H. 280 (1890), (23 Atl. Rep. 81). 
 
 New York. Griffin v. Mayor, etc. of New York, 9 N. Y. 456 
 
 1 Decatur v. Besten, 169 111. 340 (1897), (48 N. E. Rep. 186) ; 
 Klein v. DaUas, 71 Tex. 280, 285 (1888), (8 S. W. Rep. 90) ; and see 
 cases cited above. 
 
202 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 § 122. When Notice of the Defect need not be shown. — 
 Municipal corporations, like natural, persons, are con- 
 sidered to be chargeable with knowledge of their own 
 acts, and of those ordered by them. Therefore, whenever 
 defective conditions in a highway are due to the direct 
 act of a municipality itself, or of persons whose acts are 
 constructively its own, no notice, either actual or con- 
 structive, need be shown. ^ And in such cases notice is 
 
 (1853) ; Rehberg v. Same, 91 N. Y. 137, 142 (1883) ; Turner v. New- 
 burgh, 109 N. Y. 301 (1888), (16 N. E. Kep. 344); Harrington v. 
 Buffalo, 121 N. Y. 147 (1890), (24 N. E. Rep. 186). 
 
 North Carolina. Jones v. Greensboro, 124 N. C. 310, 312 (1899), 
 (32 S. E. Rep. 675). 
 
 Ohio. Shelby v. Claggett, 46 Oh. St. 549 (1889), (22 N. E. Rep. 
 407). 
 
 Oregon. Mack v. Salem, 6 Oreg. 275 (1877) ; Ford v. Umatilla 
 County, 15 Oreg. 313 (1887), (16 Pac. Rep. 33). 
 
 Pennsylvania. Rapho Township v. Moore, 68 Pa. St. 404, 408 
 
 (1871) ; Burns v. Bradford, 137 Pa. St. 361, 367 (1890), (20 Atl. Rep. 
 
 997); Fitzpatrick w. Darby, 184 Pa. St. 645 (1898), (39 Atl. Rep. 545). 
 
 Tennessee. Knoxville i-. Bell, 12 Lea, 157, 160 (1883). 
 
 Texas. Austin v. Ritz, 72 Tex. 391 (1888), (9 S. W. Rep. 884); 
 
 Galveston v. Smith, 80 Tex. 69 (1891), (15 S. W. Rep; 589). 
 
 Vermont. Prindle v. Fletcher, 39 Vt. 255 (1867) ; Ozier v. Hines- 
 burgh, 44 Vt. 220 (1872) ; Campbell v. Fair Haven, 54 Vt. 336, 340 
 (1882). 
 
 Virginia. Noble v. Richmond, 31 Gratt. 271, 281 (1879). 
 Wisconsin. Ward v. Jefferson, 24 Wis. 342 (1869); Goodnoughi). 
 Oshkosh, 24 Wis. 549 (1869) ; Bailey v. Spring Lake, 61 Wis. 227 
 (1884), (20 N. W. Rep. 920). 
 
 United States. Mayor, etc. of New York v. Sheffield, 4 Wall., 189, 
 195 (1866); District of Columbia v. Woodbury, 136 U. S. 450, 463 
 (1890), (10 S. Ct. Rep. 990). 
 
 1 Connecticut. Boucher v. New Haven, 40 Conn. 456, 460 
 (1873). 
 
 Colorado. Denver v. Aaron, 6 Col. App. 232 (1895). 
 Georgia. Brunswick v. Braxton, 70 Ga. 193 (1883). 
 Illinois. Alexander v. Mt. Sterling, 71 111. 366 (1874) ; Jefferson 
 V. Chapman, 127 111. 438 (1889), (20 N. E. Rep. 33). 
 
 Indiana. Wabash County v. Pearson, 120 Ind. 426, 428 (1889) (22 
 
THE LIABILITY EELATIYE TO STREETS AND HIGHWAYS. 203 
 
 not an essential element, even though one may be re- 
 quired by some statutory' or charter ^ provision. 
 
 § 123. Whether Notice must be shov^n -where the Defect 
 is created by a Iiicensee. — There is some conflict of opin- 
 ion to be found among the authorities upon the question 
 whether notice must be shown in cases where the defect 
 is created by persons acting under a license granted by 
 
 N. E. Rep. 134) ; Fort Wayne v. Patterson, 3 Ind. App. 34, 38 (1891), 
 (29 N. E. Kep. 167). 
 
 Iowa. Barnes v. Newton, 46 la. 567 (1877) ; Stein v. Council 
 Bluffs, 72 la. 180 (1887), (33 N. W. Rep. 455). 
 
 Maine. Holmes v. Paris, 75 Me. 559 (1884); Buck v. Biddeford, 
 82 Me. 433, 437 (1890), (19 Atl. Rep. 912). 
 
 Massachusetts. Brooks v. SomerviUe, 106 Mass. 271 (1871). 
 
 Michigan. Baker v. Grand Rapids, 111 Mich. 447 (1897), (69 
 N. W. Rep. 740). 
 
 Missouri. Barr v. Kansas City, 105 Mo. 550, 557 (1891), (16 S. W. 
 Rep. 483). 
 
 Nebraska. Lincoln v. Calvert, 39 Neb. 805, 309 (1894), (58 N. W. 
 Kep. 115). 
 
 New York. Brusso v. Buffalo, 90 N. Y. 679 (1882) ; Wilson v. 
 Troy, 135 N. Y. 96 (1892), (32 N. E. Rep. 44). 
 
 North Dakota. Ludlow v. Fargo, 3 N. Dak. 485 (1893), (57 N. W. 
 Kep. 506). 
 
 Tennessee. Poole v. Jackson, 93 Tenn. 62, 69 (1893), (23 S. W. 
 Rep. 57). 
 
 Texas. Klein v. Dallas, 71 Tex. 280, 285 (1888), (8 S. W. Rep. 
 90) ; Ringelstein v. San Antonio, 21 S. W. Rep. 634 (1893). 
 
 Wisconsin. Moore v. Platteville, 78 Wis. 644 (1891), (47 N. W. 
 Rep. 1055). 
 
 1 Holmes v. Paris, 75 Me. 559 (1884); Buck v. Biddeford, 82 Me. 
 433 (1890), (19 Atl. Rep. 912). 
 
 2 Houston V. Isaacks, 68 Tex. 116 (1887), (3 S. W. Rep. 693); and 
 see Springfield v. Le Claire, 49 111. 476 (1869). 
 
 In West Virginia, under the statute, no notice need be shown. 
 Sheff V. Huntington, 16 W. Va. 307, 312 (1880) ; Chapman v. Milton, 
 31 W. Va. 384 (1888), (7 S. E. Rep. 22) ; Evans v. Huntington, 37 
 W. Va. 601 (1893), (16 S. E. Rep. 801). And this was formerly the 
 rule in Massachusetts, under an early statute, where a defect had 
 existed over twenty-four hours. Billings v. Worcester, 102 Mass. 329 
 333 (1867). 
 
204 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 the defendant corporation. A majority, however, of the 
 courts that have considered the question favor a negative 
 view, and hold that where defective conditions in a high- 
 way are due to acts done by third persons, with the express 
 sanction of the municipality, no notice is necessary in or- 
 der to fix its liability, on the theory that the acts of a person 
 so authorized are in effect the acts of the corporation 
 itself of which it must be presumed to have knowledge.^ 
 
 § 124. Notice to whom. — The notice to the corporation 
 of the existence of a defect in its highways, which the 
 law contemplates, is a notice to those of its officers who 
 are charged by municipal ordinance or by some charter 
 or statutory provision with the duty of maintaining and 
 repairing its public ways generally, or at least the partic- 
 ular way where the defect existed. ^ It has been held 
 
 1 Georgia. Savannah v. Donnelly, 71 Ga. 258 (1883). 
 
 Kansas. Abilene v. Cowperthwait, 52 Kan. 324 (1892), (Bi Pac. 
 Rep. 795). 
 
 Minnesota. Cleveland v. St. Paul, 18 Minn. 279 (1872). 
 
 Missouri. Stephens v. Macon, 83 Mo. 345, 357 (1884) ; Taubman 
 V. Lexington, 25 Mo. App. 218, 224 (1887); Haniford v. Kansas City, 
 103 Mo. 172, 181 (1890), (15 S. W. Rep. 753). 
 
 Contra: Warsaw v. Dunlap, 112 Ind. 576 (1887), (11 N. E. Rep. 
 623) ; Dorlon v. Brooklyn, 46 Barb. (N. Y.) 604 (1866) ; Denver v. 
 Sherret, 88 Fed. Rep. 226 (1898). 
 
 2 Georgia. Columbus v. Ogletree, 96 Ga. 177 (1895), (22 S. E. 
 Rep. 709). 
 
 Iowa. Smith v. Des Moines, 84 la. 685 (1892), (51 N. W. Rep. 
 77); Smith v. Bella, 86 la. 236 (1892), (53 N. W. Rep. 226). 
 
 Pennsylvania. Platz v. MoKean Township, 178 Pa. St. 601 (1897), 
 (36 Atl. Rep. 136). 
 
 Rhode Island. Jordan v. Peekham, 19 R. I. 28 (1895), (31 Atl. 
 Rep. 305). 
 
 Tennessee. Poole v. Jackson, 93 Tenn. 62 (1893), (23 S. W. Rep. 
 57). 
 
 Texas. Austin v. Colgate, 27 S. W. Rep. 896 (1894). 
 
 Virginia. Lynchburg v. Wallace, 95 Va. 640 (1898), (29 S. E. 
 Rep. 675). 
 
 Wisconsin. Jaquish v. Ithaca, 36 Wis. 108, 111 (1874). 
 
THK LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 205 
 
 accordingly that notice to the following officers was notice 
 to the corporation : Mayor of the city ; ^ President of the 
 village; 2 City Council ;2 a member of the Council;* 
 County Supervisor;^ Town Supervisor;^ Highway offi- 
 cials, such as Superintendent, Commissioner, Overseer or 
 Surveyor of Streets ; ^ City Marshal ; ^ Chief of Police ; ^ 
 Superintendent of Public Works. ^^ 
 
 1 Salina'y. Trosper, 27 Kan. 544, 560 (1882); Michigan City v. 
 Ballanoe, 123 Ind. 334 (1889), (24 N. E. Rep. 117). 
 
 2 Edwards v. Three Rivers, 96 Mich. 625, 627 (1893), (55 N. W. 
 Rep. 1003). 
 
 8 Aurora v. Hillman, 90 111. 61, 64 (1878). 
 
 < Illinois. Sorento v. Johnson, 52 111. App. 659 (1893). 
 
 Indiana. Logansport v. Justice, 74 Ind. 378, 380 (1881); Colum- 
 bus V. Strassner, 124 Ind. 482, 489 (1890), (25 N. E. Rep. 65). 
 
 Iowa. Carter o. Monticello, 68 la. 178 (1885), (26 N. W. Rep. 
 129); Owen v. Port Dodge, 98 la. 281, 289 (1896), (67 N. W. Rep. 
 281) ; Keyes v. Cedar Falls, 107 la. 509, 512 (1899), (78 N. W. 
 Kep. 227). 
 
 Michigan. Dundas v. Lansing, 75 Mich. 499, 504 (1889), (42 N. W. 
 Rep. 1011) ; Fuller v. Jackson, 82 Mich. 480, 484 (1890), (46 N. W. 
 Rep. 721) ; McKormick v. West Bay City, 110 Mich. 265 (1896), (68 
 N. W. Rep. 148). 
 
 Wisconsin. McKeigue u. Janesville, 68 Wis. 50, 57 (1887), (81 
 N. W. Rep. 298). 
 
 Contra: Peach v. Utica, 10 Hun (N". Y.), 477, 481 (1877); McDer- 
 mott V. Kingston, 19 Hun (N. Y.), 198 (1879). And see also Jordan 
 V. Peckham, 19 R. I. 28 (1895), (31 Atl. Rep. 305). 
 
 5 Morgan v. Fremont County, 92 la. 644 (1894), (61 N. W. Rep. 
 231). 
 
 « Jaquish v. Ithaca, 36 Wis. 108, 111 (1874); Little v. Iron River, 
 102 Wis. 250 (1899), (78 N. W. Rep. 416). 
 
 ' Alabama. Bradford v. Anniston, 92 Ala. 349, 350 (1890), (8 So. 
 Rep. 683). 
 
 Illinois. Joliet V. McCraney, 49 111. App. 381 (1893). 
 
 Indiana. Lafayette v. Larson, 73 Ind. 367, 372 (1881). 
 
 Iowa. Ledgerwood v. Webster City, 93 la. 726 (1895), (61 N. W. 
 Rep. 1089). 
 
 Michigan. Moore v. Kenockee Township, 75 Mich. 332, 342 (1889), 
 
 8 Hayes u.West Bay City, 91 Mich. 418 (1892), (51 N. W. Rep. 1067). 
 
 9 Denver v. Dean, 10 Col. 875, 377 (1887), (16 Pac. Rep. 30). 
 
 1° Michels v. Syracuse, 92 Hun (N. Y.), 865, 368 (1898), (36 N. Y. 
 Supp. 507). 
 
206 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 It appears to be now well settled that notice to police- 
 men is notice to the corporation only when it is a part of 
 their duties to look after, and to report upon, the condi- 
 tion of the highways. Since they are primarily peace 
 officers, it will not ordinarily be presumed that they are 
 especially charged with any duties respecting the streets. 
 If as a matter of fact such duties do devolve upon them, 
 it should be made affirmatively to appear; ^ and if it does 
 so appear, then notice to them will be regarded as notice 
 to the corporation.^ 
 
 On the other hand, it has been held that notice is not 
 brought home to the corporation by showing notice to 
 
 (42 N. W. Rep. 944) ; Fuller v. Jackson, 82 Mich. 480 (1890), (46 N. W. 
 Rep. 721). 
 
 Nebraska. Lincoln v. Woodward, 19 Neb. 259 (188,6), (27 N. W. 
 Rep. 110). 
 
 New York. Shook v. Cohoes, 108 N. Y. 648 (1888), (15 N. E. Rep. 
 531) ; MoSherry v. Canandaigua, 129 N. Y. 612 (1892), (29 N. E. 
 Rep. 821). 
 
 Pennsylvania. Platz v. MoKean Township, 178 Pa. St. 601 (1897), 
 (36 Atl. Rep. 136). 
 
 Rhode Island. Seamons v. Fitta, 20 R. I. 443, 445 (1898), (40 Atl. 
 Rep. 3). 
 
 Washington. Saylor v. Montesano, 11 Wash. 328, 332 (189.5), (39 
 Pac. Rep. 653). 
 
 Wisconsin. Parish v. Eden, 62 Wis. 272, 282 (1885), (22 N. W. 
 Rep. 399) ; Bloor v. Delafield, 69 Wis. 273, 277 (1887), (34 N. W. Rep. 
 115). 
 
 J Columbus V. Ogletree, 96 Ga. 177 (1895), (22 S. E. Rep. 709) ; 
 Reid t: Chicago, 83 111. App. 551 (1899); Cason v. Ottumwa, 102 
 la. 99, 104 (1897), (71 jST. W. Rep. 192). 
 
 2 Connecticut. Cummings v. Hartford, 70 Conn. 115 (1898), (38 
 Atl. Rep. 916). 
 
 Georgia. Columbus u. Ogletree, 102 Ga. 293 (1897), (29 S. E. 
 Rep. 749). 
 
 Missouri. Carrington v. St. Louis, 89 Mo. 208, 213 (1886), (1 S. W. 
 Rep. 240). 
 
 New York. Rehberg v. Mayor, etc. of New York, 91 N. Y. 137 
 (1883); Twogood v. Same, 102 N. Y. 216 (1886), (6 N. E. Rep. 275); 
 Farley v. Same, 152 N. Y. 222, 226 (1897), (46 xNT. E. Rep. 506). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 207 
 
 other officers than those upon whom the duty to care for 
 the public ways rests ; ^ nor by showing notice to one of 
 its employees,^ unless that employee is charged with the 
 duty to repair the highways ; ^ nor by showing notice to 
 one or more of its inhabitants.* 
 
 Provided notice is brought home to a proper officer, it 
 makes no difference that he is not an officer de jure : it is 
 enough to charge the corporation that he is an officer de 
 facto.^ But notice to a person before his election to office 
 has been held not to be notice to the corporation.® 
 
 § 125. Actual Notice. — Actual notice of a defect in the 
 highway is simply knowledge on the part of the proper 
 officers of the corporation, acquired either by personal 
 observation or by communication from third persons, of 
 that condition of things which is alleged to constitute the 
 defect.^ Whether or not those officers, knowing the con- 
 
 1 Austin ». Colgate, 27 S. W. Rep. 896 (Tex., 1894). 
 
 2 Rich V. Rockland, 87 Me. 188 (1895), (32 Atl. Rep. 872) ; Foster 
 a. Boston, 127 Mass. 290 (1879). 
 
 ' Atlanta u. Buohaniian, 76 Ga. 585, 588 (1886) ; Garmany u. Gaines- 
 ville, 41 S. W. Rep. 730 (Tex , 1897). 
 
 « Bill V. Norwich, 39 Conn. 222 (1872) ; Cramer v. Burlington, 
 39 la. 512, 515 (1874) ; Donaldson v. Boston, 16 Gray (Mass.), 508 
 (1860). 
 
 In Maine the rule was formerly contra. Springer v. Bowdoinham, 
 7 Me. 442 (1831); Tuell v. Paris, 23 Me. 556 (1844) ; Mason v. Ells- 
 worth, 32 Me. 271 (1850); but this was changed under a later stat- 
 ute, Rogers w. Shirley, 74 Me. 144 (1878). 
 
 ' Pease v. Par.sonsfield, 92 Me. 345 (1898), (42 Atl. Rep. 502); 
 McSherry v. Canandaigua, 129 N. Y. 612 (1892), (29 N. E. Rep. 821). 
 
 = Lohr V. Philipsburg Borough, 156 Pa. St. 246 (1893), (27 Atl. 
 Rep. 133). 
 
 In Bunker v. Gouldsboro, 81 Me. 188, 195 (1889), (16 Atl. Rep. 
 543), it was held that notice to a person after his appointment as, but 
 before he could legally become, surveyor of highways, was not notice 
 to the defendant town. 
 
 ' Smith V. Pella, 86 la. 236, 241 (1892), (53 N. W. Rep. 226); 
 Poole V. Jackson, 93 Tenn. 62, 68 (1893), (23 S. W. Rep. 57); Parish 
 V. Eden, 62 Wis. 272, 283 (1885), (22 N. W. Rep. 399). 
 
208 LIABILITY OF MUNICIPAL CORPORATIONS FOE TORT. 
 
 ditions, thought them to constitute a defect or considered 
 them to be dangerous, is not material.^ 
 
 But when the alleged defect consists of a thing right- 
 fully in the highway, such for instance as a boiler that 
 is being transported along the road, it must appear not 
 only that the municipal officers knew that the thing was 
 there, but also that they knew it was there unnecessarily. 2 
 This is obvious when it is considered that the notice which 
 the law contemplates is notice of a defect, and that such an 
 object does not constitute a defect in the highway merely by 
 being there, but only by being there an unreasonable time. 
 
 § 126. Constructive Notice — The Pacts from which it 
 may be inferred. — The theory of the law is that lack of 
 notice on the part of a municipal corporation of the exist- 
 ence of a defect in the highway, under circumstances 
 where it reasonably ought to have it, is equivalent to 
 actual notice, so far as fixing its liability to a person 
 injured by such defect is concerned. ^ The line of argu- 
 
 1 Murphysboi-o v. O'Riley, 36 111. App. 157, 160 (1890) ; Hinckley 
 V. Somerset, 145 Mass. 326, 336 (1887), (14 N. E. Rep. 166); Brown 
 V. Swan ton, 69 Vt. 53 (1896), (37 Atl. Rep. -280). But see Joliet v. 
 Walker, 7 111. App. 267, 271 (1880). 
 
 2 Bartlett v. Kittery, 68 Me. 358 (1878); Parrell v. Oldtown, 69 Me. 
 72 (1879); Davis v. Corry City, 154 Pa. St. 598 (1893), (26 Atl. Rep. 
 621); Cairncross !7. Pewaukee, 86 Wis. 181 (1893), (56 N. W. Rep. 648). 
 
 In Rogers v. Orion, 116 Mich. 324 (1898), (74 N. W. Rep. 463), it 
 was held that express notice to the proper officer that there was a de- 
 fect in the highway, without indicating the place where it was to be 
 found, was not notice to charge the defendant corporation. 
 
 3 Connecticut. Manchester v. Hartford, 30 Conn. 118, 121 (1861). 
 Illinois. Streator v. Chrisman, 182 111. 215 (1899), (54 N. E. Rep. 
 
 997). 
 
 Iowa. Rowel! v. Williams, 29 la. 210, 215 (1870). 
 
 Kansas. Kansas City v. Bermingham, 45 Kan. 212, 215 (1891), 
 (25 Pac. Rep. 569). 
 
 Massachusetts. Bourget v. Cambridge, 159 Mass. 388 (1893), (34 
 N. E. Rep. 455). 
 
 Michigan. Dotton v. Albion, 50 Mich. 129, 132 (1883), (15 N. W. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWATS. 209 
 
 ment upon which this doctrine is supported is that the 
 municipal officers charged with the duty relative to high- 
 ways are bound to exercise reasonable care and diligence 
 in order to make them safe for travel in the ordinary 
 modes. The proper discharge of this duty necessarily 
 involves the exercise of due vigilance to discover their 
 condition. If, then, defects exist in them under such 
 circumstances that those officers could not help knowing 
 the fact, if they had performed this duty, — if they did not 
 know it because they failed to exercise proper vigilance, — 
 notice should be imputed to them. That is, under such 
 circumstances they must be regarded, in contemplation of 
 law, as having notice. And this is constructive notice, — ■ 
 that notice which the law imputes from the circumstances 
 of the case. 
 
 The chief circumstances connected with the existence 
 of a defect in the highway, from which notice to the cor- 
 poration may be imputed, relate to the length of time 
 prior to the accident during which it has existed ; to the 
 degree of its exposure to ordinary observation; to its 
 
 Rep. 46) ; Campbell v. Kalamazoo, 80 Mich. 655, 661 (1890), (45 
 N. W. Rep. 652). 
 
 Minnesota. Cleveland v. St. Paul, 18 Minn. 279, 287 (1872); 
 Lindholm v. St. Paul, 19 Min. 245, 249 (1872). 
 
 Mississippi. Whitfield v. Meridian, 66 Miss. 570 (1889), (6 So. 
 Rep. 244). 
 
 Nebraska. Lincoln v. Smith, 28 Neb. 762, 772 (1890), (45 N. W. 
 Rep. 41). 
 
 New Hampshire. Howe v. Plainfield, 41 N. H. 1.35 (1860). 
 
 Neio York. Hover v. Barkhoof, 44 N. Y. 113 (1870) ; Todd v. 
 Troy, 61 N. Y. 506, 509 (1875) ; Kunz v. Troy, 104 N. Y. 344, 349 
 (1887), (10 N. E. Rep. 442) ; Pomfrey v. Saratoga Springs, 104 N. Y. 
 459, 465 (1887), (11 N. E. Rep. 43) ; McVee v. Watertown, 92 Hun, 
 306, 310 (1895), (36 N. Y. Supp. 870). 
 
 Virginia. Noble v. Richmond, 31 Gratt. 271, 281 (1879). 
 
 Washington. Sutton v. Snohomish, 11 Wash. 24, 29 (1895), (39 Pac 
 Rep. 273). 
 
 14 
 
210 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 situation with reference to the amount of travel over or 
 near it and the extent of the nearby population. ^ 
 
 The invariable and most essential of those circum- 
 stances is the time during which the defect has been in 
 existence. 2 And yet it is not possible to fix, as a matter 
 
 ' See Noyes v. Gardner, 147 Mass. 505, 508 (1888),. (18 N. E. Rep. 
 423); Klein v. Dallas, 71 Tex. 280 (1888), (8 S. W. Rep. 90); Klatt 
 V. Milwaukee, 53 Wis. 196, 206 (1881), (10 N. W. Rep. 162). 
 
 2 Connecticut. Bill v: Norwich, 39 Conu. 222, 228 (1872). 
 
 Delaware. Pierce v. Wilmingtou, 2 Marv. 306, 809 (1897), (43 
 Atl. Rep. 162). 
 
 Georgia. Atlanta v. Perdue, 53 Ga. 607 (1875); Griffin v. Johnson, 
 84 Ga. 279, 282 (1889), (10 S. E. Rep, 719). 
 
 Illinois. Chicago v. Major, 18 111. 349, 360 (1857); Hogan v. Chi- 
 cago, 168 111. 551, 557 (1897), (48 N. E. Rep. 210) ; Joliet i'. Johnson, 
 177 111. 178, 182 (1898), (52 N. E. Rep. 498). 
 
 Indiana. Indianapolis v. Scott, 72 Ind. 196 (1880); Spiceland v. 
 Alier, 98 Ind. 467 (1884); Michigan City v. Boeckling, 122 Ind. 39, 42 
 (1889), (23 N. E. Rep. 518) ; Frankfort v. Coleman, 19 Ind. App. 368, 
 873 (1897), (49 N. E. Rep. 474). 
 
 Iowa. Rice v. Des Moines, 40 la. 638, 641 (1875). 
 
 Massachusetts. Olson v. Worcester, 142 Mass. 536 (1886), (8 N. E. 
 Rep. 441). 
 
 Michigan. Alberts v. Vernon, 96 Mich. 549, 551 (1893), (55 N. W. 
 Rep. 1022) ; Handy v. Meridian Township, 114 Mich. 454,457(1897), 
 (72 N. W. Rep. 251). 
 
 Minnesota. Cleveland v. St. Paul, 18 Minn. 279, 287 (1872); Gude 
 V. Mankato, 30 Minn. 256 (1883), (15 N. W. Rep. 175). 
 
 Missouri. Shipley v. Bolivar, 42 Mo. App. 401 (1890). 
 
 Nebraska. Lincoln v. Woodward, 19 Neb. 259, 262 (1886), (27 
 N. W. Rep. 110). 
 
 New Hampshire. Howe v. Plainfleld, 41 N. H. 135 (1860). 
 
 New York. Saulsbury v. Ithaca, 94 N. Y. 27 (1883). " 
 
 Pennsylvania. McLaughlin v. Corry, 77 Pa. St. 109 (1874). 
 
 Utah. Naylor v. Salt Lake City, 9 Utah, 491, 496 (1894), (35 Pac. 
 Rep. 509). 
 
 Virginia. Moore v. Richmond, 85 Va. 588, 542 (1888), (8 S. E. 
 Rep. 387). 
 
 Washington. Sutton v. Snohomish, 11 Wash. 24, 29 (1895), (39 
 Pac. Rep. 273). 
 
 Wisconsin. Goodno v. Oshkosh, 28 Wis. 300 (1871); Cooper v. 
 Milwaukee, 97 Wis. 458, 464 (1897), (72 N. W. Rep. 1180). 
 
THE LIABILITY RELATIVE TO STEEETS AND HIGHWAYS. 211 
 
 of law, any precise time which would be sufficient in 
 every case to warrant imputing notice to the corporation. 
 The law makes no presumption upon the subject, but 
 simply leaves to the jury to determine, in each particular 
 case, whether or not sufficient time had elapsed so that 
 the proper municipal authorities might, in the exercise of 
 due diligence, have had notice.^ It has been held, how- 
 ever, that notice was properly imputed to the corporation 
 where the defect had existed for one year or more before 
 the accident happened ; ^ where it had existed between a 
 month and a year ; •'' where it had existed between a week 
 
 1 Chicago V. McCulloch, 10 111. App. 459, 465 (1881); Decatur v. 
 Beaten, 169 111. 340 (1897), (48 N. E. Rep. 186); Colley u. Westbrook, 
 57 Me. 181, 183 (1869); Maus v. Springfield, 101 Mo. 613 (1890), (14 
 S. W. Rep. 630); District of Columbia v. Woodbury, 136 U. S. 450, 
 463 (1890), (10 S. Ct. Rep. 990). 
 
 2 Kentucky. Newport «. Miller, 93 Ky. 22 (1892), (18 S. W. Rep. 
 835). 
 
 Massachitsetts. Lyman v. Hampshire County, 140 Mass. 811 (1885), 
 (3 N. E. Rep. 211). 
 
 New York. Goodfellow v. Mayor, etc. of New York, 100 N. Y. 15 
 (1885), (2 N. E. Rep. 482) ; Rankert v. Junius, 25 N. Y. App. Div. 470 
 (1898), (49 N. Y. Supp. 850). 
 
 Wisconsin. Barstow v. Berlin, 34 Wis. 357 (1874). 
 
 ' Connecticut. Davis v. Guilford, 55 Conn. 351 (1887), (11 Atl. 
 Rep. 350). 
 
 Delaware. Robinson v. Wilmington, 8 Houst. 409 (1889), (32 Atl. 
 Rep. 347). 
 
 Illinois. Chicago v. Crooker, 2 111. App. 279 (1878). 
 
 Indiana. Indianapolis o. Murphy, 91 Ind. 382 (1883). 
 
 Iowa. Jones v. Clinton, 100 la. 333, 336 (1896), (69 N. W. Rep. 418). 
 
 Massachusetts. Purple v. Greenfield, 138 Mass. 1 (1884). 
 
 Michigan. Tice v. Bay City, 84 Mich. 461 (1889), (47 N. W Ren 
 1062). ^' 
 
 Minnesota. Moore v. Minneapolis, 19 Minn. 300 (1872). 
 
 Missouri. Market v. St. Louis, 56 Mo. 189 (1874); Maus v. Spring- 
 field, 101 Mo. 613, 617 (1890), (14 S. W. Rep. 630). 
 
 New York. Pettengill v. Yonkers, 116 N. Y. 558 (1889), (22 N E 
 Rep. 1095). V ^' V 
 
 Wisconsin. Schuenke v. Pine River, 84 Wis. 669, 677 (1893) C54 
 N. W. Rep. 1007). 
 
212 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 and a month ;i and where it had existed longer than a day 
 but less than a week.^ But it has been held also that notice 
 ought not to be imputed to the corporation where the defec- 
 tive condition had been in existence for one day or less.^ 
 
 1 Georgia. Dempsey w. Rome, 94 Ga. 420 (1894), (20S. B. Rep.335). 
 Illinois. Bloomington v. Annett, 16 111. App. 199 (1884). 
 
 loiDO. Ronn o. Des Moines, 78 la. 63 (1889), (42 N. W. Rep. 582) ; 
 Baxter v. Cedar Rapids, 103 la. 599, 603 (1897), (72 N. W. Rep. 790)! 
 
 Massachusetts. Fortiu v. Easthampton, 145 Mass. 196 (1887), (13 
 N. E. Rep. 599). 
 
 Minnesota. L'Herault v. Minneapolis, 69 Minn. 261 (1897) (72 
 N. W. Rep. 73). 
 
 New York. Smid v. Mayor, etc. of New York, 49 N". Y. Sup. Ct. 
 126 (1883) ; Foels v. Tonawauda, 75 Hun, 363 (1894), (27 N. Y. Supp 
 118). 
 
 Texas. Palestine v. Hassell, 15 Tex. Civ. App. 519 (1897), (40 
 S. W. Rep. 147). 
 
 2 Chicago V. Hoy, 75 111. 530 (1874) ; Salina v. Trosper, 27 Kan. 
 544 (1882) ; Weed u. Ballstou Spa, 76 N". Y. 329 (1879). 
 
 s Georgia. Jackson v. Boone, 93 Ga. 662 (1894), (20 S. E. Rep. 46). 
 
 Iowa. Sikes v. Manchester, 59 fa. 65, 69 (1882), (12 N. W. Rep. 
 755); Theissen y. Belle Plaine, 81 la. 118 (1890), (46 N. W. Rep. 854). 
 
 Massachusetts. Stoddard v. Winchester, 154 Mass. 149 (1891), (27 
 N. E. Rep. 1014). 
 
 Michigan. Dittrioh v. Detroit, 98 Mich. 245, 248 (1893), (57 N. W. 
 Rep. 125). 
 
 Mississippi. Butler v. Oxford, 69 Miss. 618, 622 (1891), (13 So. Rep. 
 626). 
 
 New York. Dorn v. Oyster Bay, 84 Hun, 510, 513 (1895), (32 
 N. W. Supp. 841). 
 
 Rhode Island. Carroll u. Allen, 20 R. I. 541 (1898), (40 Atl. Rep. 
 419). 
 
 Wisconsin. Klatt v. Milwaukee, 53 Wis. 196, 205 (1889), (10 
 N. W. Rep. 162). 
 
 And see also Carrington v. St. Louis, 89 Mo. 208, 213 (1886), 
 (1 S. W. Rep. 240); Parsons v. Manchester, 67 N. H. 163 (1891), (27 
 Atl. Rep. 88), in which it was held that the question of notice should 
 go to the jury, although the defect had existed less than a day. 
 
 Where a defect is not continuous in point of time, but consists of 
 repeated acts of the same general character, as the repeated leaving 
 open of the door to a cellar-way by an abutting property owner, or the 
 repeated leaving of merchandise upon the sidewalk by the occupant of 
 an adjoining building, such acts extending over a considerable period 
 of time and being known to the corporate authorities, it has been held 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 213 
 
 The circumstance of the exposure of the defect to ob- 
 servation ranks next in importance to that of time. It 
 is pretty generally agreed that where the defect is latent, 
 so that it cannot be discovered by the exercise of due 
 diligence on the part of the proper municipal officers, 
 notice will not be imputed to the corporation. ^ But there 
 
 that notice might be presumed. Chapman v. Macon, 55 Ga. 5*16 (1876) ; 
 McGaffigan v. Boston, 149 Mass. 289 (1889), (21 N. E. Rep. 371); Davis 
 V. Corry City, 154 Pa. St. 598 (1893), (26 Atl. Rep. 621). 
 
 1 Massachusetts. Stoddard o. Winchester, 154 Mass. 149 (1891), 
 (27 N. E. Rep. 1014). 
 
 Michigan. Wakehara u. St. Clair Township, 91 Mich. 15, 26 
 (1892), (51 N. W. Rep. 696). 
 
 North Carolina. Jones v. Greensboro, 124 N. C. 310, 313 (1899), 
 (32 S. E. Rep. 675). 
 
 Pennsylvania. Fitzpatriok t-. Darby, 184 Pa. St. 645 (1898), (39 
 Atl. Rep. 545). 
 
 Tennessee. Jackson v. Pool, 91 Tenn. 448 (1892), (19 S. W. Rep. 324). 
 
 Texas. Klein v. Dallas, 71 Tex. 280 (1888), (8 S. W. Rep. 90); 
 Dixon V. San Antonio, 30 S. W. Rep, 359 (1895). 
 
 Vermont. Prindle v. Fletcher, 39 Vt. 255 (1867) ; Brown v. Mount 
 Holly, 69 Vt. 364, 367 (1897), (38 Atl. Rep. 69). 
 
 Wisconsin. Cooper v. Milwaukee, 97 Wis. 458 (1897), (72 N. W. 
 Rep. 1130). 
 
 Municipal corporations are, however, chargeable with a knowledge 
 of the natural tendency of wooden sidewalks to decay, since " this 
 tendency is the result of natural causes, whose operation is so con- 
 stant, familiar, and common as to be known to everybody.'' Hence 
 it is held to be so far negligence for the corporate officers to fail to take 
 notice of, and to act upon, such knowledge, that no other notice of a 
 defect in a sidewalk arising from natural decay need be shown. See 
 
 Colorado. Denver v. Dean, 10 Col. 375, 378 (1887), (16 Pac. Rep. 
 30), semhle. 
 
 District of Columbia. Sherwood v. District of Columbia, 3 Mac- 
 key, 276 (1884). 
 
 Illinois. Joliet v. McCraney, 49 111. App. 381, 383 (1893). 
 
 Indiana. Indianapolis v. Scott, 72 Ind. 196 (1880). 
 
 Iowa. Weber v. Creston, 75 la. 16, 18 (1888), (39 N. W. Rep. 126). 
 
 Minnesota. Furnell v. St. Paul, 20 Minn. 117, 123 (1873). 
 
 Mississippi. Nesbitt v. Greenville, 69 Miss. 22, 29 (1891), (10 So. 
 Rep. 452). 
 
 New Hampshire. Lambert v. Pembroke, 66 N. H. 280 (1890), 
 (23 Atl. Rep. 81). 
 
 But see Hembling v. Grand Rapids, 99 Mich. 292 (1894), (58 N. W. 
 
214 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 is some difference of opinion to be found among the author- 
 ities upon the question how notorious the defect must be 
 in order to warrant attributing notice to the corporation 
 after the lapse of a sufficient time. The decided weight 
 of authority favors the rule that the defective condi- 
 tion of the highway must be so open to observation that 
 passers-by will notice it. That is, no greater diligence 
 in the matter of observation is to be exacted from the 
 officers of the corporation than is required of travellers. ^ 
 This rule, however, does not, it has been held, mean 
 that every passer-by shall actually notice the defect, but 
 simply that it should be sufficiently open so that "they 
 might have noticed it if they had consciously seen it. " ^ 
 
 In a few cases it has been pertinently observed that the 
 fact that the defect was not of a character necessarily to 
 attract the attention of passers-by was not proof that the 
 proper municipal officers, by the exercise of reasonable 
 vigilance, could not have discovered it, for the degree of 
 
 Kep. 310) ; Jackson v. Pool, 91 Tenn. 448 (1892), (19 S. W. Rep. 324) ; 
 Lohr V. Philipsburg Borough, 156 Pa. St. 246 (18933, (27 Atl. 
 Eep. 133). 
 
 1 Alabama. Albrittin v. Huntsville, 60 Ala. 486 (1877). 
 
 Iowa. Doulon v. Clinton, 33 la. 397, 399 (1871) ; Broburg v. 
 Des Moines, 63 la. 523 (1884), (19 N. W. Rep. 340). 
 
 Michigan. Tice v. Bay City, 84 Mich. 461, 465 (1891), (47 N. W. 
 Kep. 1062) ; McGrail v. Kalamazoo, 94 Mich. 52 (1892), (53 N. W. 
 Rep. 955). 
 
 Mississippi. Whitfield v. Meridian, 66 Miss. 570, 576 (1889), (6 So. 
 Rep. 244). 
 
 New York. Requa v. Rochester, 45 N. T. 129 (1871) ; Riley v. 
 Eastchester, 18 N. Y. App. Div. 94, 96 (1897), (45 N. Y. Supp. 448). 
 
 Pennsylvania. Otto Township v. Wolf, 106 Pa. St. 608, 610 (1884); 
 Burns v. Bradford, 137 Pa. St. 361 (1890), (20 Atl. Rep. 997). 
 
 Tennessee. Poole v. Jackson, 93 Tenn. 62, 68 (1893), (23 S. W. 
 Rep. 57). 
 
 Washington. Elster v. Seattle, 18 Wash. 304 (1897), (51 Pac. Rep. 
 394). 
 
 2 Rosevere v. Osceola Mills, 169 Pa. St. 555, 563 (1895), (32 Atl. 
 Rep. 548). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 215 
 
 care to be exercised by the latter was not the same as 
 that to be expected of the former, i 
 
 The circumstance, however, that the particular defect 
 which caused the injury is not so notorious as to attract 
 general attention is not conclusive of the question of 
 notice In all cases. Even though such defect was not 
 apparent to ordinary observation, yet notice of it may be 
 imputed to the corporation from the fact that for a con- 
 siderable time prior to the accident the highway at, and 
 near, the place at which the injury was received was in 
 a generally bad condition, or that there were particular 
 defects in the highway in the immediate vicinity. In 
 such cases the law imputes notice to the corporation on 
 the theory that the fact of its neglect of the duty to repair, 
 under circumstances where its performance would have 
 led to knowledge of the particular defect, is enough to 
 charge it with notice thereof. ^ But in order to warrant 
 
 1 Looney v. Joliet, 49 111. App. 621, 626 (1893); Squires v. Chilli- 
 cothe, 89 Mo. 226, 231 (1886), (1 S. W. Rep. 23). 
 
 2 Illinois. Brownlee v. Alexis, 39 111. App. 135, 143 (1890). 
 
 Iowa. Ruggles v. Nevada, 63 la. 185 (1884), (18 N. W. Rep, 866), 
 semhle; Aryman v. Marshalltown, 90 la. 350 (1894), (57 N. W. Rep. 
 867) ; Faulk v. Iowa County, 103 la. 442, 447 (1897), (72 N. W. Rep. 
 757). 
 
 Massachusetts. Noyes v. Gardner, 147 Mass. 505 (1888), (18 N. E. 
 Rep. 423). 
 
 Michigan. Campbell v. Kalamazoo, 80 Mich. 655, 659 (1890), 
 (45 N. W. Rep. 652), distinguishing Dundas v. Lansing, 75 Mich. 499 
 (1889), (42 N. W. Rep. 1011); O'Neil v. West Branch, 81 Mich. 544, 
 546 (1890), (45 N. W. Rep. 1023); Moore v. Kalamazoo, 109 Mich. 
 176, 177, (1896), (66 N. W. Rep. 1089). 
 
 Minnesota. Gude v. Mankato, 30 Minn. 256 (1883), (15 N. W. 
 Rep. 175) ; Lyons v. Red Wing, 76 Minn. 20 (1899), (78 N. W. Rep. 
 
 Nebraska. Plattsmouth v. Mitchell, 20 Neb. 228, 230 (1883), (29 
 N. W. Rep. 59.3). 
 
 North Dakota. Chaoey v. Fargo, 5 N. Dak. 173, 177 (1895), (64 
 N. W. Rep. 932). 
 
 Wisconsin. Weisenberg v. Appleton, 26 Wis. 56, 58 (1870) ; Shaw 
 
216 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 imputing to the corporation notice of a particular defect 
 from the continued existence of a condition of general 
 disrepair, or of nearby particular defects, the former 
 should be either of the same general character as the 
 latter, or so related that the former is a usual concomitant 
 of the latter. 1 
 The fact, however, that there have been previous defects 
 
 V. Sun Prairie, 74 Wis. 105, 108 (1889), (42 N. W. Rep. 271); Barrett 
 V. Hammond, 87 Wis. 654, 658 (1894), (58 N. W. Kep. 1053). 
 
 United States. Osborne v. Detroit, 32 Fed. Rep. 36, 39 (1886). 
 
 " Tliere should be reasonable discretion exercised," says Mr. Justice 
 Brown in Osborne p. Detroit, 32 Fed. Rep. 36 (1886), at page 39, 
 " in admitting evidence of the condition of the walk near the acci- 
 dent, but we tliink, in any case, if it be so near the place of accident 
 that a person examining the walk, or responsible for the condition of 
 the walk in that neighborhood, would be likely also to notice the de- 
 fect at the spot where the accident occurred, it would be competent." 
 
 In Will V. Mendon, 108 Mich. 251, 254 (1896), (66 N. W. Rep. 58), 
 it was held that evidence of the generally defective condition of a 
 walk for a distance of four or five rods in either direction from the 
 place of the accident was competent for the purpose of charging the 
 corporation with notice. On the other hand, in Ruggles v. Nevada, 
 63 la. 185 (1884), (18 N. W. Rep. 866), the court held that evidence 
 of the general disrepair of the walk twenty-five feet distant from the 
 defect that caused the injury was not competent to charge the defend- 
 ant with notice of the particular defect. 
 
 1 Fuller V. Jackson, 82 Mich. 480, 484 (1890), (46 N. W. Rep. 
 721) ; Shelby v. Clagett, 46 Oh. St. 549, 5.54 (1889), (22 N. E. Rep. 
 407) I Barrett v. Hammond, 87 Wis. 654, 658 (1894), (58 N. W. 
 Rep. 1053). 
 
 " If, however, the general (Jefect known to the village was not of a 
 character to make the sidewalk unsafe, or was of a character totally un- 
 like that which caused the injury, so that the existence of one afforded 
 no presumption of the existence of the other, there is no sound prin- 
 ciple which requires notice of one to constitute, as a matter of law, 
 notice of the other. Even if there was such relation between them 
 that one would frequently be found in connection with the other, yet 
 it is not the province of the law to declare that proof of one is proof 
 of the other. This is only done where the connection is universal, or 
 so close that the law will not permit it to be denied." Shelby v. 
 Clagett, 46 Oh. St. 549, 555 (1889), (22 N. E. Rep. 407). 
 
THE LIABILITY EELATITE TO STREETS AND HIGHWAYS. 217 
 
 in the same place which were known to, and had been 
 repaired by, the corporation, is not competent as a basis 
 for imputing to it notice of another defect of the same 
 general character existing at the same place but at a 
 
 later tirae.^ 
 
 The last circumstance of special importance in the 
 matter of constructive notice relates to the extent of 
 the use of the highway on which the defect is located. 
 While reasonable vigilance is required in the mainten- 
 ance of every highway without regard to the amount of 
 travel, what is reasonable vigilance in any particular case 
 depends in large measure upon the extent of the use to 
 which the way is put. What, therefore, might be negli- 
 gence in not knowing of a dangerous condition in a public 
 way in one locality in a city, might not be negligence if 
 such condition was in another locality in the same city. 
 In other words, if the defect was on a street where there 
 was but little travel and where the population was light, 
 reasonable vigilance would require less care and watch- 
 fulness to discover it than if it was situated on a street 
 
 1 Carter v. Monticello, 68 la. 178 (188.5), (26 N. W. Kep. 129); 
 Donaldson v. Boston, 16 Gray (Mass ), 508 (1860). 
 
 In Wiltse v. Tilden, 77 Wis. 152 (1890), (46 N. W. Rep. 234), a 
 charge to the jury to the effect that if the dangerous condition of the 
 highway at the time of the accident might reasonably have been antici- 
 pated by the town authorities, in view of previous known defects 
 therein and of the nature of the creek, it was their duty to have 
 closed up the road until it was repaired, or to have provided means 
 for warning travellers of the danger, was held not to be erroneous. 
 
 If a corporation attempts to repair a walk, but does not do it in 
 Buch a manner as to render the same safe and in good repair, it is 
 chargeable with notice of the defects left in it. " If the authorities, 
 having both actual and constructive notice of the defective condition 
 of the walk before the repairs were made, so made the repairs that 
 the walk was left in unsafe condition and repair, because of the defec- 
 tive material therein, they would be liable for injury resulting from 
 such defect." Wheaton v. Hadley, 131 111. 640, 645 (1890), (23 N. E. 
 Rep. 42:i). 
 
218 LIABILIT-Y OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 where travel was continuous and the population dense. 
 Hence, since constructive notice is always predicated 
 upon a neglect of the duty to repair, it is obvious that it 
 cannot properly be imputed to a corporation, where the 
 alleged defect is on a comparatively unfrequented high- 
 way, until after the lapse of a longer time than would be 
 required if the travel over it was more constant. ^ 
 
 1 nimois. Decatur v. Besten, 169 111. 340 (1897), (48 N. E. Kep. 
 186), semble. 
 
 Massachusetts. Noyes v. Gardner, 147 Mass. 505, 508 (1888), (18 
 N. E. Rep. 423); Welsh v. Amesbury, 170 Mass. 437, 440 (1898), (49 
 N. E. Rep. 735). 
 
 Minnesota. Moore v. Minneapolis, 19 Minn. 300 (1872) ; L'Herault 
 V. Minneapolis, 69 Minn. 261, 263 (1897), (72 N". W., Rep. 73). 
 
 Missouri. Carrington v. St. Louis, 89 Mo. 208, 213 (1886), (1 S. W. 
 Eep. 240). 
 
 New Hampshire. Parsons v. Manchester, 67 N. H. 163 (1891), (27 
 Atl. Rep. 88). 
 
 New York. Lane u. Hancock, 142 N. Y. 510, 519 (1894), (37 N. E. 
 Kep. 473). 
 
 Pennsylvania. Fritsch v. Allegheny, 91 Pa. St. 226, 229 (1879). 
 
 Rhode Island. Carroll v. Allen, 20 R. I. 541 (1898), (40 Atl. Rep. 
 419). 
 
 Texas. Klein v. Dallas, 71 Tex. 280 (1888), (8 S. W. Rep. 90). 
 
 Wisconsin. Hall v. Pond du Lac, 42 Wis. 274 (1877). 
 
 In Massachusetts it has been held that evidence as to causes that 
 may be known to be in operation in,_or near to, the highway, which 
 are likely to produce a defect therein, may be competent as a basis for 
 imputing to the corporation notice of the defect when it comes into 
 existence, since in such a case greater vigilance may be required of 
 the municipal officers than under other conditions. " It is reasonable 
 that the officers should keep a more watchful eye over such a way in 
 order to guard against danger. When, therefore, a defect is produced 
 by some known, permanent cause which would naturally create the 
 defect, the existence of such cause may properly be considered by the 
 jury in determining whether the officers of the town or city might have 
 had notice of the defect by the exercise of proper care and diligence." 
 Chief Justice Morton, in Olson v. Worcester, 142 Mass. 536 (1886), 
 (8 N. B. Rep. 441) ; Post v. Boston, 141 Mass. 189 (1886), (4 N. E. 
 Rep. 815), accord. This rule, however, is limited in its application to 
 cases where the danger to be guarded against is reasonably immanent 
 
THE LIABILITY RELATIVE TO. STREETS AND HIGHWAYS. 219 
 
 As is apparent, doubtless, from what has been ah-eady 
 said, the question whether or not, in any particular case, 
 the defendant corporation had constructive notice of the 
 defect that caused the injury is commonly one of fact 
 to be decided by the jury upon a due consideration of 
 all the evidence relating to the above-mentioned circum- 
 stances, and to any other circumstances relevant to the 
 subject. 1 
 
 in point of time. If the known causes are likely to produce a defect 
 in the highway only at some time in the remote future, the imputa- 
 tion of notice to the municipality will not be warranted. Rochefort 
 V. Attleborough, 154 Mass. 140 (1891), (27 N. E. Rep. 1013); Stod- 
 dard V. Winchester, 154 Mass. 149 (1891), (27 N. E. Rep. 1014) ; 
 s. c. 157 Mass. 567 (1893), (32 N. E. Rep. 948). See also Fleming 
 V. Springfield, 154 Mass. 520 (1891), (28 N. E. Rep. 910) ; Wiltse v. 
 Tilden, 77 Wis. 152 (1890), (46 N. W. Rep. 234). 
 
 1 Colorado. Boulder v. Niles, 9 Col. 415 (1886), (12 Pac. Rep. 
 632). 
 
 District of Columbia. District of Columbia u. Payne, 13 App. Cas. 
 500 (1899). 
 
 Illinois. Joliet v. Walker, 7 111. App. 267, 271 (1880) ; Chicago v. 
 McCulIoch, 10 111. App. 459, 464 (1881) ; Decatur v. Besten, 169 111. 
 840 (1897), (48 N. E. Rep. 186). 
 
 Indiana. Washington v. Small, 86 Ind. 462, 471 (1882) ; Indian- 
 apoHs V. Murphy, 91 Ind. 382 (1883). 
 
 Maine. Bradbury v. Falmouth, 18 Me. 64 (1841). 
 
 Massachusetts. Purple v. Greenfield, 138 Mass. 1 (1884). 
 
 Michigan. Dotton v. Albion, 50 Mich. 129 (1883), (15 N. W. 
 Rep. 46). 
 
 Nero Hampshire. Lambert v. Pembroke, 66 N. H. 280 (1890), (23 
 Atl. Rep. 81). 
 
 New York. Roach v. Ogdensburg, 91 Hun, 9 (1895), (36 ST. Y. 
 Supp. 112). 
 
 Pennsylvania. Otto Township v. Wolf, 106 Pa. St. 608 (1884). 
 
 I'exas. Klein v. Dallas, 71 Tex. 280 (1888), (8 S. W. Rep. 90). 
 
 Washington. Sproul v. Seattle, 17 Wash. 256, 259 (1897), (49 Pac. 
 Rep. 489). 
 
 Wisconsin. Sheel v. Appleton, 49 Wis. 125, 128 (1880), (5 N. W. 
 Rep. 27). 
 
 In MoCabe v. Hammond, 34 Wis. 590 (1874), the defect consisted 
 of snowdrifts. The court said, at page 592: "The proper overseer 
 
220 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 /. CONTEIBDTOKY NEGLIGENCE. 
 
 § 127. The Application of the Doctrine of Contributory 
 Negligence. — The familiar common law doctrine of con- 
 tributory negligence applies to actions against municipal 
 corporations to recover damages for injuries suffered by 
 reason of a defect in the highway, whether the right to 
 maintain such action is based upon common law prin- 
 ciples or upon some statutory provision. If, therefore, 
 the plaintiff was guilty of negligent conduct at the time 
 of the accident, 1 and such negligence contributed to his 
 injury, he cannot maintain his action, even though the 
 highway was out of repair and that want of repair also 
 
 was chargeable with notice that the effect of the storm was to produce 
 drifts in the highway in his road district. He knew the violence of 
 the wind, and the quantity of snow which fell during the continuance 
 of the storm, and, by the exercise of a very little judgment, he might 
 have formed a correct opinion of the effects which would naturally 
 follow those causes ; and it was his manifest duty to ascertain where 
 the highways were obstructed by the snow, and to take steps to remove 
 the drifts." 
 
 But in Gurney v. Rockport, 93 Me. 360 (1899), (45 Atl. Rep, 310), 
 it was held that knowledge of a heavy fall of snow which drifts the 
 highways of a town generally, but blows off in spots, is not actual 
 notice of a particular drift within the meaning of the statutory pro- 
 vision which requires that a town must have twenty-four hours' actual 
 notice of a defect before it can be held liable for injuries arising 
 therefrom. 
 
 1 "At the time of the accident" means both before and after 
 its commencement. A plaintiff cannot in the exercise of due care 
 " abandon herself to needless alarm or give up all proper control of 
 the horse, in consequence of the peril to which she was exposed by 
 the negligence of the defendants in omitting to keep their road in 
 suitable repair. She was still bound to use such care as a person of 
 ordinary prudence and discretion would exercise if placed in similar 
 circumstances and exposed to a like danger, making due allowance 
 for the alarm into which she and her companion were thrown by the" 
 occurrence of the accident." Chief Justice Bigelow in Brooks v. 
 Petersham, 16 Gray (Mass.), 181, 184 (1860). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 221 
 
 contributed to his injury.^ This is so, of course, not 
 because it was his own conduct that contributed to his 
 injury, but because it was conduct to which some fault 
 could be imputed that concurred in bringing about the 
 accident. If, therefore, the plaintiff's contributing act 
 was entirely innocent, it will not destroy his right to 
 recover damages.^ 
 
 The standard of care required of a traveller upon the 
 public highways is simply the conduct of an ordinarily 
 intelligent and prudent man under like circumstances.^ 
 
 This standard is invariable. While it is true that 
 greater care is required of a traveller in some cases than 
 in others, the variance is in the circumstances, not in the 
 
 1 Georgia. Massey v. Columbus, 75 Ga. 658 (1885). 
 
 Illinois. Chicago v. Babcock, 143 111. 358, 363 (1892), (32 N. E. 
 Kep. 271). 
 
 Maine. Merrill o. Hampden, 26 Me. 234, 240 (1846) ; Morse v. 
 Belfast, 77 Me. 44, 46 (1885). 
 
 Massachusetts. Thompson u. Bridgewater, 7 Pick. 188 (1828); and 
 see Williams, Statutory Torts in Massachusetts, page 6, note 3, where 
 the Massachusetts cases on this point are collected. 
 
 Michigan. Wakeham v. St. Clair Township, 91 Mich. 15 (1892), 
 (51 N. W. Eep. 696). 
 
 New Hampshire. Sleeper v. Sandown, 52 N. H. 244 (1872). 
 
 New York. Dubois v. Kingston, 102 N. Y. 219 (1886), (6 N. E 
 Rep. 273) ; Sutphen v. North Hempstead, 80 Hun, 409, 412 (1894), 
 (30 N. y. Supp. 128). 
 
 Texas. Austin v. Ritz, 72 Tex. 391, 401 (1888), (9 S. W. Rep. 884). 
 Vermont. Kelsey v. Glover, 15 Vt, 708 (1843). 
 Virginia. Richmond v. Courtney, 32 Gratt. 792 (1880); Moore v. 
 Richmond, 85 Va. 588, 544 (1888), (8 S. E. Rep. 387). 
 
 Wisconsin. GrifBn v. Willow, 43 Wis. 509, 512 (1878) ; Doan v. 
 Willow Springs, 101 Wis. 112, 116 (1898), (76 N. W. Rep. 1104). 
 
 2 Wyandotte v. White, 13 Kan. 191 (1874) ; Lund v. Tyngsboro, 
 11 Gush. (Mass.) 563 (1853); Pomeroy v. Westfield, 154 Mass. 462 
 (1891), (28 N. E. Rep. 899). 
 
 ' Lane v. Crombie, 12 Pick. (Mass.) 177 (1831), as treated in 
 Calmer v. Andover, 2 Cush. (Mass.) 600, 605 (1849); McGuinness v. 
 Worcester, 160 Mass. 272 (1894), (35 N. E. Rep. 1068); Easton v. 
 Neff, 102 Pa. St. 474 (1883) ; Austin v. Ritz, 72 Tex. 391, 402 (1888), 
 (9 S. W. Rep. 884). 
 
222 LIABILITY OF MUNICIPAL COBPOEATIONS FOE TORT. 
 
 standard of care. This standard requires, of course, that 
 he shall use reasonable prudence both in the manner of 
 his going and as to the condition of his equipment. 
 Hence if he is injured while driving, he cannot main- 
 tain his action against the corporation if he was guilty 
 of contributory negligence either in the manner of his 
 driving or in using an improper vehicle, horse, or har- 
 ness: a defect in any one of those details, due to his 
 negligence, which contributes to the injury will as effec- 
 tually bar a recovery as carelessness in his management 
 of the team. 1 
 
 The views of the courts of the various states are not 
 uniform relative to the question upon which party rests 
 the burden of showing the facts as to the care or want 
 of care of the injured person. A majority in number of 
 them, and the United States courts as well, hold that this 
 burden is entirely upon the defendant, and that, there- 
 fore, unless the state of facts averred by him in his 
 declaration, or proved by him at the trial, necessarily 
 shows him to have been guilty of contributory negligence, 
 the plaintiff can make out a prima facie case without any 
 proof as to the care exercised by him. In other states, 
 the rule prevails that the plaintiff must show, by affirma- 
 tive evidence, that he was at the time of the accident in 
 the exercise of due care.^ 
 
 If, upon a due consideration of all the facts and circum- 
 stances bearing upon the issue and of the inferences that 
 may legitimately be drawn from them, different minds 
 
 1 Murdook v. Warwick, 4 Gray (Mass.), 178, 180 (1855) ; Brack- 
 enridge v. Fitchburg, 145 Mass. 160 (1887), (13 N. E. Rep. 457) ; 
 Horrigan v. Clarksburg, 150 Mass. 218 (1889), (22 N. E. Rep. 897); 
 Tucker v. Henniker, 41 N. H. 317 (1860) ; Patohen v. Walton, 17 N. Y. 
 App. Div. 158 (1897), (45 N. Y. Siipp. 145) ; Allen v. Hancock, 16 
 Vt. 230 (1884). 
 
 2 See Lincoln v. Walker, 5 Am. & Eng. Corp. Cas. 610, 615 (1884), 
 where the position of each state is shown and the authorities cited. 
 
THE LIABILITY EELATIVB TO STREETS AND HIGHWAYS. 223 
 
 might reasonably reach different conclusions, the question 
 whether or not the injured person was guilty of contrib- 
 utory negligence is a question of fact to be determined 
 by the jury.^ But if, from the undisputed facts bearing 
 upon the issue, but one conclusion can reasonably be 
 drawn, or if there is no direct evidence upon the issue 
 
 1 Alabama. Birmingham v. McCary, 84 Ala. 469, 478 (1887), 
 (4 So. Rep. 630). 
 
 Connecticut. Lutton v. Vernon, 62 Conn. 1 (1892), (23 Atl. Rep. 
 1020). 
 
 Delaware. Wilkins v. Wilmington, 2 Marv. 132 (1895), (42 Atl. 
 Rep. 418). 
 
 Illinois. Chicago v. McLean, 133 111. 148, 154 (1890), (24 N. E. 
 Rep. 527). 
 
 Iowa. Byerly v. Anamosa, 79 la. 204, 206 (1890), (44 N. W. Rep. 
 359). 
 
 Maine. Johnson v. Whitefield, 18 Me. 286 (1841) ; Morse v. Bel- 
 fast, 77 Me. 44, 46 (1885). 
 
 Massachusetts. Bigelow v. Rutland, 4 Cush. 247 (1849) ; Britton v. 
 Cummington, 107 Mass. 347 (1871). 
 
 Michigan. Wakeham v. St. Clair Township, 91 Mich. 15 (1892), 
 (51 N. W. Rep. 696). 
 
 Missouri. Staples v. Canton, 69 Mo. 592, 594 (1879); Barr v. 
 Kansas City, 105 Mo. 550, 558 (1891), (16 S. W. Rep. 483). 
 
 Nebraska. Plattsmouth v. Mitchell, 20 Neb. 228, 230 (1886), (29 
 N. W. Rep. 593) ; Ponca v. Crawford, 23 Neb. 662, 665 (1888), (37 
 N. W. Rep. 609) ; Omaha v. Richards, 49 Neb. 244 (1896), (68 N. W. 
 Rep. 528). 
 
 New Hampshire. Daniels v. Lebanon, 58 N. H. 284 (1878). 
 
 New York. Shook v. Cohoes, 108 N. Y. 648 (1888), (15 N. E. Rep. 
 531) ; Schafer v. Mayor, etc. of New York, 154 N. Y. 466, 471 (1897), 
 (48 N. E. Rep. 749). 
 
 Pennsyloania. Scranton e. Gore, 124 Pa. St. 595, 609 (1889), (17 
 Atl. Rep. 144) ; Sprowls v. Morris Township, 179 Pa. St. 219, 224 
 (1897), (36 At. Rep. 242); Musick v. Latrobe, 184 Pa. St. 375, 385 
 (1898), (39 Atl. Rep. 226). 
 
 Rhode Island. Hampson v. Taylor, 15 R. I. 83, 88 (1887), (8 Atl. 
 Rep. 331). 
 
 West Virginia. Phillips v. Huntington, 85 W. Va. 406, 417 (1891), 
 (14 S. E. Rep. 17). 
 
 Wisconsin. Burns v. Elba, 32 Wis. 605, 611 (1873); Jung v. Ste- 
 vens Point, 74 Wis. 547 (1889), (43 N. W. Rep. 513). 
 
224 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TORT. 
 
 and all the inferences that may fairly be drawn from the 
 facts in the case point to but one conclusion, then the 
 question may be decided by the court as a matter of law.^ 
 
 § 128. Vyhat a Traveller may assume. — In the absence 
 of anything that would suggest to the mind of a man of 
 ordinary prudence a peril of travel, a person who is pass- 
 ing along a public highway is not bound to anticipate 
 danger, but has a right to assume that the municipal 
 authorities have made the way reasonably safe for public 
 travel in the ordinary modes. And he may indulge in 
 this assumption as well when he is travelling in the 
 night-time as when he is travelling by daylight.^ "A 
 
 1 Tufiree u. State Center, 57 la. 538 (1881), (11 N. W. Rep. 1) 
 Mathews v. Cedar Rapids, 80 la. 459 (1890), (45 N. W. Rep. 894) 
 Tasker v. Farmingdale, 91 Me. 521 (1898), (40 Atl. Rep. .544) 
 Nicholas v. Peck, 20 R. I. 533 (1898), (40 Atl. Rep. 418) ; Bills v. 
 Kaukauna, 94 Wis. 310, 315 (1896), (68 N. W. Rep. 992). 
 
 It has been held that it could not be said as a matter of law that it 
 was negligence to allow the reins to become entangled, Bigelow v. 
 Rutland, 4 Cush. (Mass.) 247 (1849) ; Hall v. Kansas City, 54 Mo. 
 598 (1874) ; or for a woman to drive, Cobb v. Standish, 14 Me. 198 
 (1837) ; Blood V. Tyngsborough, 103 Mass. 509 (1870) ; or for a person 
 to run in the street, Penrose v. Fehr, 113 Mich. 517 (1897), (71 N. W. 
 Rep. 862) ; Barr v. Kansas City, 105 Mo. 550, 558 (1891), (16 S. W. 
 Rep. 483). 
 
 2 Alabama. Birmingham u. Starr, 112 Ala. 98 (1895), (20 So. 
 Rep. 424). 
 
 Connecticut. Lutton v. Vernon, 62 Conn. 1, 11 (1892), (23 Atl. 
 Rep. 1020). 
 
 Delaware. Robinson v. Wilmington, 8 Houst. 409, 414 (1889), (32 
 Atl. Rep. 347). 
 
 Illinois. East Dubuque v. Burhyte, 173 111. 553, 558 (1898), (50 
 N. E. Rep. 1077). 
 
 Indiana. Stevens v. Logansport, 76 Ind. 498, 503 (1881). 
 
 Iowa. Robinson v. Cedar Rapids, 100 la. 662, 664 (1897), (69 
 N. W. Rep. 1064) ; Keyes v. Cedar Falls, 107 la. 509, 514 (1899), (78 
 N. W. Rep. 227). 
 
 Ma.isachusetts. Thompson v. Bridgewater, 7 Pick. 188 (1828). 
 
 Michigan. Baker v. Grand Rapids, 111 Mich. 447 (1897), (69 
 N. W. Rep. 740). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 225 
 
 person may walk or drive in the darkness of the night," 
 says Chief Justice Hunt in Davenport v. Ruckman,^ "re- 
 lying upon the belief that the corporation has performed 
 its duty and that the street or the walk is in a safe con- 
 dition. He walks by a faith justified by law, and if his 
 
 Missouri. Stephens v. Macon, 83 Mo. 345, 353 (1884). 
 
 Nebraska. Lincoln v. Walker, 18 Neb. 250 (1885), (25 N. W. 
 Kep. 66). 
 
 New York. Weed v. Ballston Spa, 76 N. Y. 329, 333 (1879) ; Petten- 
 gill V. Yonkers, 116 N. Y. 558, 564 (1889), (22 N. E. Kep. 1095). 
 
 Ohio. Circleville v. Neuding, 41 Oh. St. 465 (1885). 
 
 Vermont. Glidden v. Reading, 38 Yt. 52, 57 (1885); Drew v. 
 Sutton, 55 Vt. 586, 589 (1882). 
 
 Virginia. Gordon v. Richmond, 83 Va. 436, 440 (1887), (2 S. E. 
 Rep. 727). 
 
 Wisconsin. Milwaukee v. Davis, 6 Wis. 377(1857); Seward v. 
 Milford, 21 Wis. 485, 490 (1867) ; Wall ;;. Highland, 72 Wis. 435, 
 438 (1888), (39 N. W. Eep. 560). 
 
 " A person desiring to cross the street either in the night time or 
 in the day time is not confined to a crossing. He has a right to as- 
 sume that all parts of the street intended for travel are reasonably 
 safe; and if in the night time he desires to cross from one side to the 
 other, knows of no dangerous excavation in the street, or other ob- 
 struction, he may cross at any point that suits his convenience, with- 
 out being liable to the imputation of negligence." Brusso v. Buffalo, 
 90 N. Y. 679, 680 (1882) ; Raymond v. Lowell, 6 Ciish. (Mass.) 524, 
 530 (1850) ; Lincoln v. Detroit, 101 Mich. 245 (1894), (59 N. W. Rep. 
 617); Baker v. Grand Rapids, 111 Mich. 447 (1897), (69 N. W. Rep. 
 740), accord. And see also Stack v. Portsmouth, 52 N. H. 221 (1872) ; 
 Denver v. Sherret, 88 Fed. Rep. 226, 235 (1898). 
 
 In Dallas r. Webb, 22 Tex. Civ. App. 48 (1899), (54 S. W. Rep. 
 398), the court held that a pedestrian, injured in crossing a street at 
 a place other than a crossing, might recover therefor when his injury 
 was caused by the city's maintaining a place dangerous to pedestrians 
 only. But in Dayton v. Taylor's Adm'r, 62 Oh. St. 11 (1900), (56 
 N. E. Rep, 480), it was held that a person who, without necessity, 
 left the sidewalk and street crossings, upon which he would have 
 avoided injury, and, while attempting to cross the street diagonally, 
 was injured by slipping into a catch-basin, must be held to have 
 assumed the risks that lay in the path which he chose for his own 
 convenience. 
 
 1 37 N. Y. 568 (1868), at page 573. 
 
 15 
 
226 LIABILITY OP MUNICIPAL COEPOEATIONS FOR TOUT. 
 
 faith is unfounded and he suffers an injury, the party in 
 fault must respond in damages. " 
 
 A traveller is not bound, therefore, to give his whole 
 attention to the highway over which he is passing, nor to 
 lieep his eyes constantly fixed upon the pavement or road- 
 bed, watching for defects ; ^ nor need he look far ahead for 
 defects or obstructions.^ Hence if, while his attention is 
 momentarily diverted, he falls into an excavation or runs 
 against an obstruction, the presence of which was not 
 known to him, he is not necessarily, as a matter of law, 
 guilty of contributory negligence, and that, too, even 
 though such accident happens in broad daylight.^ 
 
 1 Chicago V. Babcock, 143 111. 358, 363 (1892), (32 N. E. Eep. 271) ; 
 Baxter v. Cedar Kapids, 103 la. 599 (1897), (72 N. W. Kep. 790); 
 Laverdure v. Mayor, etc. of New York, 28 N. Y. App. Div. 65 (1898), 
 (50 N. Y. Supp. 882); West ... Eau Claire, 89 Wis. 31, 36 (1894), 
 (61 N. W. Kep. 313). 
 
 2 Thompson v. Bridgewater, 7 Pick. (Mass.) 188 (1828). 
 
 8 Delaware. Robinson v. Wilmington, 8 Houst. 409, 414 (1889), 
 (32 Atl. Rep. 347). 
 
 Illinois. Chicago v. Babcock, 143 111. 858, 363 (1892), (32 N. E. 
 Rep. 271). 
 
 Iowa. Mathews v. Cedar Rapids, 80 la. 459 (1890), (45 N. W. 
 Eep. 894); Barnes v. Marcus, 96 la. 675 (1896), (65 N. W. Rep. 
 984). 
 
 Massachusetts. Woods v. Boston, 121 Mass. 337 (1876). 
 
 Michigan. Mackie v. West Bay City, 106 Mich. 242 (1895), (64 
 N. W. Rep. 25). 
 
 New York. Dale v. Syracuse, 71 Hun, 449, 451 (1893), (24 N. Y. 
 Supp. 968) ; Cutnmings v. New Eoclielle, 38 N. Y. App. Div. 583 
 (1899), (56 N. Y. Supp. 701). 
 
 Wisconsin. Cantwell v. Appleton, 71 Wis. 463, 468 (1888), (37 
 N. W. Rep. 813). 
 
 United States. Osborne v. Detroit, 32 Fed. Rep. 36, 42 (1886). 
 
 In Pennsylvania the rule is that travellers are bound to look where 
 chey are going, and if one is injured by an obvious defect he is as a 
 matter of law guilty of contributory negligence. Robb v. Connells- 
 ville, 137 Pa. St. 42 (1890), (20 Atl. Rep. 564); Shallcross v. Phila- 
 delphia, 187 Pa. St. 143 (1898), (40 Atl. Rep. 818). 
 
 In Mathews v. Cedar Rapids, 80 la. 459 (1690), at page 465, (45 
 
THE LIABILITY EELATIVE TO STREETS AND HIGHWAYS. 227 
 
 No presumption as to the condition of a highway is 
 permissible where there is actual knowledge. Hence 
 when a traveller approaches a portion of a street known 
 by him to be defective, he has no right to indulge in, or to 
 act upon, the assumption that it is safe ; ^ but it has been 
 held in some cases that under such circumstances he 
 might assume that the defect had been remedied. ^ 
 
 § 129. The Effect of Infancy. — The law presumes that 
 an infant of very tender years is not capable of exercising 
 any degree of care for his own safety. It is the general 
 rule, therefore, that personal contributory negligence can- 
 not be attributed to a child so young as to be non sui 
 
 • N. W. Rep. 894), Mr. Justice Granger says : " All persons know that 
 temporary obstructions occur on streets and sidewalks ; and it is 
 not an unreasonable rule to iiold that if in plain sight, and there is 
 nothing to divert the attention of the traveller, he must notice 
 them. The distinction is this : Such obstacles as are known to be 
 present — as, for instance, boxes and barrels on the sidewalk^ and 
 vehicles, building material and rubbish in the street — challenge the 
 attention of the traveller ; and if, without excuse, he fails to observe 
 them, and encounters them to his injury, the Judgments of men would 
 agree that he was negligent. But matters which he may not antici- 
 pate, as likely to occur, do not challenge such attention ; and a failure 
 to observe and avoid them is not, as a matter of law, negligence." 
 
 1 Kewaneeu. Depew, 80 III. 119, 121 (1875); Scanlon v. Watertown, 
 14 N. Y. App. Div. 1, 5 (1897), (43 N. Y. Supp. 618) ; Neddo v. 
 Ticonderoga, 77 Hun (N. Y.), 524 (1894), (28 N. Y. Supp. 887); 
 Weston V. Troy, 139 N. Y. 281 (1893), (34 N. E. Rep 780); Hopkins 
 V. Rush River, 70 Wis. 10, 14 (1887), (34 N. W. Rep. 909). 
 
 2 Watseka v. Smith, 75 III. App. 391 (1897) ; Horton v. Trompeter, 
 35 Pac. Rep. 1106 (Kan., 1894) ; Finn v. Adrian, 93 Mich. 504, 503 
 (1892), (53 N. W. Rep. 614) ; Whoram v. Argentine Township, 112 
 Mich. 20 (1897), (70 N. W. Rep. 341). 
 
 But where it appeared that the defect was one of long standing, and 
 was not of a character to intei'fere with the use of the highway ; that 
 it had not been called to the attention of the municipal authorities 
 and there was no indication of a purpose on their part to repair it, 
 it was held that the plaintiff had no right to presume that it had been 
 repaired. Dale v. Webster County, 76 la. 370, 374 (1888), (41 N. W. 
 Rep. 1). 
 
228 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 juris. Hence such an infant may maintain an action 
 against a municipal corporation for an injury occasioned 
 by a culpable defect in the highway, although his injury 
 would not have happened but for his concurring act, and 
 although that act, if done by a person of full age, would 
 bar the action.-^ 
 
 While seven years is perhaps the commonly accepted 
 age at which an infant is supposed to become mi juris, 
 and hence capable of exercising some degree of care, the 
 law does not fix any exact time after which he shall cease 
 to have the benefit of the presumption made in his favor. 
 Whether or not in any given case he was old enough to 
 have sufficient capacity to understand, at least in some 
 measure, the danger of the situation in which he is 
 placed by reason of a defect in the highway and to 
 act accordingly, is a question of fact for the jury to 
 decide.2 
 
 When an infant has attained to sufficient age to be 
 capable 'of exercising care and discretion, the law ex- 
 pects of him, not that degree which it exacts from a 
 person of full age, but only that degree which may fairly 
 and reasonably be expected of a child of his age and 
 capacity.^ 
 
 § 130. The Effect of the Negligence of the Parents or 
 Guardian of an Infant — Imputed Negligence. — The problem 
 
 1 Chicago V. Hesing, 83 111. 204, 205 (1876) ; Gavin v. Chicago, 97 
 111. 66, 70 (1880); Evansville v. Senhenn, 151 Ind. 42, 43 (1898), (47 
 N. E. Rep. 634) ; Grant v. Fitchburg, 160 Mass. 16 (1893), (35 N. E. 
 Kep. 84) ; Lehman v. Brooklyn, 29 Barb. (N. Y.) 234 (1859) ; Kunz 
 V. Troy, 104 N. Y. 344, 350 (1887), (10 N. E. Rep. 442). 
 
 2 St. Paul V. Kuby, 8 Minn. 154, 168 (1863) ; Kunz v. Troy, 104 
 N. Y. 344, 351 (1887), (10 N. E. Rep. 442). 
 
 8 Bronson v. Southbury, 37 Conn. 199 (1870) ; Chicago v. Keefe, 
 114 111. 222 (1885), (2 N. E. Rep. 267) ; Pekin v. McMahon, 154 111. 
 141, 154 (189.5), (39 N. E. Rep. 484) ; Dowd v. Chicopee, 116 Mass. 
 93, 96 (1874). 
 
THE LIABILITY EELATIVB TO STREETS AND HIGHWAYS. 229 
 
 whether the negligent acts of the parents or guardian of 
 an infant of very tender years can be imputed to the 
 latter so as to debar him from maintaining an action for 
 an injury suffered by him by reason of the negligence of 
 another has provoked much discussion in the courts of 
 last resort. The ultimate result of it all is that in some 
 States the question has been answered in the affirmative, ^ 
 in others in the negative.^ 
 
 § 131. The Effect of the Negligence of a Third Person — 
 Imputed Negligence. — It is pretty generally conceded that 
 the negligent acts of a third person cannot be imputed to 
 a traveller who is injured by a culpable defect in the high- 
 
 1 Aurora v. Seidelman, 34 111. App. 285 (1889) ; Leslie v. Lewiston, 
 62 Me. 468, 472 (1873); Grant v. Fitohburg, 160 Mass. 16 (1893), (35 
 N. E. Rep. 84) ; Kunz v. Troy, 104 N. Y. 344, 851 (1887), (10 N. E. 
 Rep. 442) ; Parish u. Eden, 62 Wis. 272, 284 (1885), (22 N. W. Rep. 
 399). 
 
 2 Wymore v. Mahaska County, 78 la. 396 (1889), (43 N. W. Rep. 
 264) ; Evansville v. Senhenn, 151 Ind. 42 (1898), (47 F. E. Rep. 634); 
 Shippy V. Au Sable, 85 Mich. 280, 293 (1891), (48 N. W. Rep. 584). 
 
 To permit a child to play in the street is not negligence pei- se. 
 Aurora v. Seidelman, 34 111. App. 285, 290 (1889) ; Kunz v. Troy, 104 
 N. Y. 344 (1887), (10 N. E. Rep. 442). 
 
 " In cases where persons are poor and their time constantly em- 
 ployed in making a living, such circumstances should be taken into 
 account, and the same vigilance should not be required of them in 
 respect to the care of their children as would be of rich people, who 
 had plenty of leisure and means to employ servants ; yet they must 
 use sucn care as reasonable persons would do in their condition and 
 surrounded by the same circumstances." Aurora v. Seidelman, 34 111. 
 App. 285, 293 (1889). 
 
 In McGarry v. Loomis, 63 N. Y. 104 (1875), it was held that where 
 the injured person was a child non sui juris, negligence on the part of 
 its parents was no defence if the child itself had not committed, or 
 omitted, any act that would constitute contributory negligence in a 
 person of years of discretion. And it was held in McMahon u. 
 Mayor, etc. of New York, 33 N. Y. 642, 647 (1865), that if the infant 
 was sui Juris, the negligence of his parents would not be imputed to 
 him. 
 
230 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 way so as to debar him from recovering compensation 
 therefor, even though such negligent acts concurred in 
 causing the injury, unless he sustained such a relation 
 in respect to the matter then in progress to such third 
 person that the negligent acts of the latter were in con- 
 templation of law his acts.^ The real difference of opin- 
 ion upon this topic to be found in the books appears to be 
 upon the narrower question whether or not a person who 
 enters a private conveyance, with no authority to direct 
 or control the movements of its driver, and with no reason 
 to suspect the prudence or competency of that driver to 
 drive in a reasonably careful and skilful manner, becomes 
 so far identified with the latter that his negligent driving 
 will prevent the recovery of damages from the munici- 
 pality if it concurs with a culpable defect in the highway 
 in occasioning an injury. Upon this question the author- 
 ities are about evenly divided. ^ 
 
 1 "The general principle deducible from the decisions is," says 
 Mr. Justice Mitchell in Knightstown v. Musgrove, 116 Ind. 121 (1888), 
 at page 123, (18 N. E. Rep. 452), "that one who sustains an injury 
 without any fault or negligence of his own, or of some one subject to 
 his control or direction, or with whom he is so identified in a common 
 enterprise as to become responsible for the consequences of his negli- 
 gent conduct, may look to any other person for compensation whose 
 neglect of duty occasioned the injury, even though the negligence of 
 some third person with whom the injured person was not identified 
 as above may have contributed thereto." 
 
 ^ In the following cases the negligence cf such driver was imputed 
 to the plaintifi : — 
 
 Connecticut. Bartram v. Sharon, 71 Conn. 686 (1899), (43 Atl. 
 Kep. 143). 
 
 Michigan. Mullen v. Owosso, 100 Mich. 103 (1894), (58 N. W. 
 Rep. 663). 
 
 Wisconsin. Prideaux v. Mineral Point, 43 Wis. 513 (1878) ; Ritger 
 V. Milwaukee, 99 Wis. 190 (1898), (74 N. W. Rep. 815). 
 
 While in the following cases his negligence was held not to bar 
 plaintiff's action : — 
 
 Indiana. Knightstown v. Musgrove, 116 Ind. 121 (1888), (18 N. E. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 231 
 
 § 132. The Effect of travelling in the Darkness of Night. 
 — Since tlie duty of municipal corporations is to so keep 
 their highways that they may be reasonably safe for ordi- 
 nary travel not only in the daytime but in the darkness 
 of the night as well, travellers have a right to assume, 
 and to act upon the assumption, in the absence of knowl- 
 edge to the contrary, that they can pass over the road 
 which they contemplate using with reasonable safety, 
 even though it be very dark.^ Travelling at night is not, 
 therefore, negligence per se. While the fact of darkness 
 may require a greater degree of care and caution on the 
 part of the traveller, it is at best simply evidence to be 
 considered by the jury in deciding whether or not due 
 care under the circumstances of the case was exercised.^ 
 And so the failure to carry a light to aid in avoiding 
 
 Rep. 452) ; Michigan City v. Boeckling, 122 Ind. 39, 42 (1889), (23 
 N. E. Rep. 518). 
 
 Iowa. Nesbit v. Garner, 75 la. 314 (1888), (39 N. W. Rep. 516). 
 
 Minnesota. FoUman v. Mankato, 35 Minn. 522 (1886), (29 N. W. 
 Rep. 317). 
 
 New York. Pettingill v. Oleau, 20 N. Y. Supp. 367 (1892). 
 
 North Dakota. Ouverson v. Grafton, 5 N. Dak. 281, 293 (1895), 
 (65 N. W. Rep. 676). 
 
 Pennsylvania. Carlisle v. Brisbane, 113 Pa. St. 544 (1886), (6 Atl. 
 Rep. .372). 
 
 1 See page 224, ante, and cases cited in note 2. 
 
 2 Alabama. Montgomery v. Wright, 72 Ala. 411, 421 (1882). 
 Connecticut. Williams v. Clinton, 28 Conn. 264 (1859). 
 
 Illinois. Elgin v. Renwick, 86 LI. 498 (1877) ; Normal v. Gresham, 
 49 lU. App. 196 (1892). 
 
 Iowa. Stier v. Oskaloosa, 41 la. 353, 357 (1875) ; Hall v. Manson, 
 90 la. 585, 588 (1894), (58 N. W. Rep. 881) ; Owen v. Fort Dodge, 
 98 la. 281, 288 (1896), (67 N. W. Rep. 281). 
 
 Maine. Haskell v. New Gloucester, 70 Me. 305 (1879). 
 
 Michigan. Baker v. Grand Rapids, 111 Mich. 447, 449 (1897), (69 
 N. W. Rep. 740). 
 
 Vermont. Barber v. Essex, 27 Vt. 62, 69 (1854). 
 
 Wisconsin. Bills v. Kaukauna, 94 Wis. 310, 314 (1896), (68 N. W. 
 Rep. 992). 
 
232 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 pitfalls or obstructions in the path while travelling in the 
 dark is not negligence on the part of the traveller as a 
 matter of law, but is merely evidence upon the question 
 for the consideration of the jury.^ 
 
 § 133. The Effect of Knowledge of the Ezistence of the 
 Defect. — The general rule is now well settled that the 
 mere fact that a person knows of a defect in the highway, 
 and yet with that knowledge attempts to pass over it and 
 suffers an injury by reason of such defect, is not of itself, 
 as a matter of law, conclusive of his right to recover dam- 
 ages for his injury. It is simply evidence of a lack of 
 due care on his part, such evidence, no doubt, as would 
 presumptively establish contributory negligence. This 
 presumption, however, is not conclusive by any means; it 
 is, rather, distinctly disputable, and may be refuted by 
 showing that he exercised ordinary care in view of all 
 the circumstances, particularly in view of his knowledge 
 of the condition of the highway,^ 
 
 1 Williams v. CUnton, 28 Conn. 264 (1859); Keyes v. Cedar Falls, 
 107 la, 509, 514 (1899), (78 jST. W. Rep. 227) ; Haskell v. New 
 Gloucester, 70 Me. 305 (1879) ; Alleghany County v. Broadwater, 69 
 Md. 533, 535 (1888), (16 Atl. Rep. 223) ; Daniels v. Lebanon, 58 N. H. 
 284 (1878). 
 
 2 Alabama. Montgomery v. Wright, 72 Ala. 411, 421 (1882). 
 Connecticut. Congdon v. Norwich, 37 Conn. 414, 420 (1870), 
 District of Columbia. District of Columbia v. Crurabaugh, 13 App. 
 
 Gas. 553 (1898). 
 
 Georgia. Dempsey u. Rome, 94 Ga. 420 (1894), (20 S. E. Rep. 
 335) ; Samples v. Atlanta, 95 Ga. 110 (1894), (22 S. E. Rep. 135). 
 
 Illinois. Aurora v. Dale, 90 111. 48 (1878); Clayton v. Brooks, 150 
 111. 97, 104 (1894), (37 N. E. Rep. 574) ; Litchfield v. Anglim, 83 111. 
 App. 55 (1899). 
 
 Indiana. Huntington v. Breen, 77 Ind. 29, 33 (1881) ; Richmond 
 V. Mulholland, 116 Ind. 173 (1888), (18 N. E. Rep. 832) ; Fort Wayne 
 V. Breese, 123 Ind. 581 (1889), (23 N. E. Rep. 1038); Williamsport e. 
 Lisk, 21 Ind. App. 414 (1899), (52 N. E. Rep. 628) ; Huntington v. 
 Folk, 154 Ind. 91 (1899), (54 N. E. Rep. 759). 
 
 Iowa. Rice v. Des Moines, 40 la. 638, 642 (1875) ; Ross v. Daven- 
 
THE LIABILITY EELATIYB TO STREETS AND HIGHWAYS. 233 
 
 Although a person may have knowledge of the existence 
 of defective conditions in the highway, he is not on that 
 account bound, as a matter of law, to abandon travel upon 
 that highway altogether and to seek a safer route ; ^ nor 
 
 port, 66 la. 548, 551 (1885), (24 N. W. Kep. 47) ; Troxelw. Vinton, 77 
 la. 90, 93 (1889), (41 N. W. Rep. 580) ; HaU v. Manson, 99 la. 698, 
 701 (1896), (68 N. W. Rep. 922) ; Graham v. Oxford, 105 la. 705, 
 708 (1898), (75 N. W. Rep. 473). 
 
 Kansas. Maultby v. Leavenworth, 28 Kan. 745, 748 (1882) ; Em- 
 poria V. Schmidling, 33 Kan. 485, 487 (1885), (6 Pac. Rep. 893) ; 
 Langan v. Atchison, 35 Kan. 318, 326 (1886), (11 Pac. Rep. 38). 
 
 Maryland. Prince George's County v. Burgess, 61 Md. 29, 83 
 (1883) ; Alleghany County v. Broadwaters, 69 Md. 533, 535 (1888), 
 (16 Atl. Rep. 233). 
 
 Massachusetts. Reed v. Northfield, 13 Pick. 94 (1832) ; Frost v. 
 Waltham, 12 Allen, 85 (1866) ; Barton v. Springfield, 110 Mass. 131 
 (1872) ; Kelly v. Blackstone, 147 Mass. 448 (1888), (18 N. E. Rep. 
 217) ; Norwood v. SomerviUe, 159 Mass. 105 (1893), (33 N. E. Rep. 
 1108). 
 
 Michigan. Lowell v. Watertown Township, 58 Mich. 568 (1885), 
 (25 N. W. Kep. 517) ; Argus v. Sturgis, 86 Mich. 344 (1891), (48 
 N. W. Rep. 1085) ; Schwingschlegl v. Monroe, 113 Mich. 683 (1897), 
 (72 N. W. Rep. 7); Urtel v. Flint, 122 Mich. 65 (1899), (80 N. W. 
 Rep. 991). 
 
 Minnesota. Ei'd v. St. Paul, 22 Minn. 443, 446 (1876) ; McKenzie 
 V. Northfield, 30 Minn. 456 (1883), (16 N. W, Rep. 264); Nichols v. 
 Minneapolis, 33 Minn. 430 (1885), (23 N. W. Rep. 868). 
 
 Missouri. Smith u. St. Joseph, 45 Mo. 449 (1870); Flynn v. 
 Neosho, 114 Mo. 567, 572 (1892), (21 S. W. Rep. 903) ; Graney v. St. 
 
 1 Illinois. Mt. Sterling v. Crummy, 73 111. App. 572, 575 
 (1897). 
 
 Indiana. Gosport v. Evans, 112 Ind. 138, 138 (1887), (13 N. E. 
 Rep. 256) ; Fort Wayne v. Breese, 123 Ind. 581, 585 (1889), (23 N. E. 
 Rep. 1038). 
 
 Kansas. Emporia v. Schmidling, 83 Kan. 485, 487 (1885), (6 Pac. 
 Rep. 893); Falls Township v. Stewart, 3 Kan. App. 403, 407 (1895), 
 (42 Pac. Rep. 926). 
 
 Missouri. Graney v. St. Louis, 141 Mo. 180, 185 (1897), (42 
 S. W. Rep. 941). 
 
 Pennsylvania. Erie City v. Schwingle, 22 Pa. St. 384 (1853). 
 
234 LIABILITY OP MUNICIPAL CORPOEATIONS FOE TORT. 
 
 even to go around the defective spot.^ He may proceed 
 along the path usually travelled without being subject to 
 
 Louis, 141 Mo. 180 (1897), (42 S. W. Rep. 941); Stevens v. Walpole, 
 76 Mo. App. 213, 225 (1898). 
 
 Nebraska. Lincoln v. Calvert, 39 Neb. 305, 310 (1894), (58 N. W. 
 Eep. 115). 
 
 New Hampshire. Griffin v. Auburn, 58 N."H. 121, 124 (1877). 
 New York. Niven v. Rochester,. 76 N. Y. 619 (1879). 
 
 North Dakota. Ouverson v. Grafton, 5 N. Dak. 281, 291 (1895), 
 (65 N. W. Rep. 676). 
 
 Pennsylvania. Humphreys v. Armstrong County, 56 Pa. St. 204 
 (1867); Merriman v. Phillipsburg, 158 Pa. St. 78 (1893), (28 Atl. 
 Rep. 122). 
 
 Rhode Island. Hampson v. Taylor, 15 R. I. 83, 89 (1887), (8 Atl. 
 Rep. 331). 
 
 Texas. Denison v. Sanford, 2 Tex. Civ. App. 661 (1893), (21 S. W. 
 Rep. 784). 
 
 Utah. Dwyer v. Salt Lake City, 19 Utah, 521 (1899), (57 Pao. 
 Eep. 535). 
 
 Vermont. Coates u. Canaan, 51 Vt. 131, 137 (1878) ; Templetonu. 
 Montpelier, 56 Vt. 328, 332 (1883). 
 
 Washington. McQuillan v. Seattle, 10 Wash. 464, 466 (1895), (38 
 Pac. Rep. 1119). 
 
 West Virginia. Moore v. Huntington, 81 W. Va. 842, 849 (1888), 
 (8 S. E. Rep. 512). 
 
 Wisconsin. Kavanaugh v. Janesville, 24 Wis. 618 (1869); Ken- 
 worthy V. Ironton, 41 Wis. 647, 654 (1877) ; Crites v. New Richmond, 
 98 Wis. 55, 60 (1897), (73 N. W. Rep. 322). 
 
 In determining whether or not a person who knows of a defect in 
 the highway is negligent if he proceeds, " much depends" upon the 
 character of the defect, the occasion for passing over it, and the care 
 used in so doing. Graham v. Oxford, 105 la. 705, 708 (1898), (75 
 N. W. Rep. 473). 
 
 1 Connecticut. Congdon v. Norwich, 37 Conn. 414, 420 (1870). 
 
 Illinois. Aurora v. Hillman, 90 111. 61 (1878) ; Flora v. Naney, 136 
 111. 45, 47 (1891), (26 N. E. Rep. 645). 
 
 lotoa. Kendalls. Albia, 73 la. 241, 249 (1877), (34 N. W. Rep. 
 
 833). 
 
 Kansas. Langan v. Atchison, 35 Kan. 318 (1886), (11 Pac. Rep. 
 
 38). 
 
 New York. Shook v. Cohoes, 108 N. Y. 648 (1888). (15 N. E. 
 Rep. 531); Weston «. Troy, 139 N. Y. 281,283 (1893), (34 N. E. Rep. 
 780). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 235 
 
 the charge of contributory negligence, if by the exercise 
 of care proportioned to the known danger he may reason- 
 ably expect to avoid the defect, i. And the fact that he 
 forgot for the moment the existence of the defect^ or 
 failed to locate it rightly,^ is not necessarily conclusive 
 against him if he suffers an injury. 
 
 The courts will not, however, apply the general rule 
 above stated, but will hold a traveller to be guilty of 
 contributory negligence as a matter of law if it appears 
 that, knowing of a condition of the highway which would 
 naturally suggest to a person of common prudence that it 
 was dangerous to attempt to pass over it, he voluntarily 
 and deliberately and without necessity chose to go ahead 
 and take the chances of being injured. A person can- 
 not heedlessly and carelessly travel along a portion of 
 the highway known to him to be so dangerous that 
 men of ordinary care and prudence would not attempt 
 to pass over it at their own risk, and still hold the cor- 
 
 1 Clayton v. Brooks, 150 111. 97 (1894), (37 N. E. Eep. 574) ; Hanlon 
 V. Keokuk, 7 la. 488 (1859); Kinsley v. Morse, 40 Kan. 577, 583 
 (1889), (20 Pac. Rep. 217) ; Kochw. Ashland, 88 Wis. 603 (1894), (60 
 N. W. Rep. 990). 
 
 2 Georgia. Dempsey v. Rome, 94 Ga. 420 (1894), (20 S. E. Rep. 
 835). 
 
 Illinois. Normal v. Gresham, 49 111. App. 196 (1892) ; Springfield 
 0. Rosenmeyer, 52 111. App. 301 (1893). 
 
 Massachusetts. Greovge u. Haverhill, 110 Mass. 506 (1872). 
 
 Michigan. Bouga v. Weare Township, 109 Mich. 520 (1896), (67 
 N. W. Rep. 557). 
 
 Minnesota. Maloy v. St. Paul, 54 Minn. 398 (1898), (56 N. W. 
 Rep. 94). 
 
 Washington. McQuillan v. Seattle, 10 Wash. 464 (1895), (38 Pac. 
 Rep. 1119). 
 
 Wisconsin. Cumisky v. Kenosha, 87 Wis. 286 (1894), (58 N. W. 
 Rep. 395) ; Dean v. Willow Springs, 101 Wis. 112, 116 (1898), (76 
 N. W. Rep. 1104). 
 
 8 Aurora v. Dale, 90 111. 46 (1878) ; Blood v. Tyngsborough, 103 
 Mass. 509 (1870). 
 
236 LIABILITY OP MUNICIPAL COEPORATIONS FOR TORT. 
 
 poration responsible for any injury that may result to 
 him.^ 
 
 ^ Connecticut. Fox v. Glastenbury, 29 Conn. 204 (1860). 
 
 Georgia. Samples v. Atlanta, 95 Ga. 110, 114 (1894), (22 S. E. 
 Kep. 135), semble. 
 
 Indiana. Gosport v. Evans, 112 Ind. 133 (1887), (13 N. E. Rep. 256). 
 
 Iowa. Nichols v. Laurens, 96 la. 388 (1895), (65 N. W. Rep. 335), 
 semble. 
 
 Kansas. Corlett v. Leavenworth, 27 Kan. 673 (1882). 
 
 Maine. Merrill v. North Yarmouth, 78 Me. 200 (1886), (3 Atl. 
 Kep. 575). 
 
 Maryland. Baltimore v. Holmes, 39 Md. 243 (1873), semble. 
 
 Massachusetts. Gilman v. Deerfield, 15 Gray, 577 (1860), as ex- 
 plained in Kelly v. Blaokstone, 147 Mass. 448 (1888), (18 N. E. Rep. 
 217); Wilson V. Charlestown, 8 Allen, 137 (1864); Fox v. Chelsea, 
 171 Mass. 297 (1898), (50 N. E. Rep. 622). 
 
 Michigan. Smith v. Walker Township, 117 Mich. 14 (1898), (75 
 N. W. Rep. 141). 
 
 Mississippi. Meridian v. Hyde, 11 So. Rep. 108 (1891). 
 
 Missouri. Bassett v. St. Joseph, 53 Mo. 290, 303 (1873). 
 
 New Hampshire. Farnum v. Concord, 2 N. H. 392 (1821) ; Hub- 
 bard V. Concord, 35 N. H. 52, 63 (1857). 
 
 New York. Griffin v. Mayor, etc. of New York, 9 N. Y. 456 (1854). 
 
 Ohio. Sohaefler v. Sandusky, 33 Oh. St. 246 (1877). 
 
 Pennsylvania. Forks Township v. King, 84 Pa. St. 230, 233 
 (1877); Brendlinger v. New Hanover Township, 148 Pa. St. 93 
 (1892), (23 Atl. Rep. 1105) ; Winner i;. Oakland Township, 158 Pa. 
 St. 405 (1893), (27 Atl. Rep. 1110, 1111). 
 
 South Carolina. Laney v. Chesterfield County, 29 S. C. 140~(1888), 
 (7 S. E. Rep. 56) ; Magill v. Lancaster County, 39 S. C. 27 (1892), 
 (17 S. E. Rep. 507). 
 
 West Virginia. Moore v. Huntington, 31 W. Va. 842 (1888), (8 
 S. E. Rep. 512). 
 
 Wisconsin. Welsh v. Argyle, 89 Wis. 649 (1895), (62 N. W.Rep. 
 517); De Pere v. Hibbard, 104 Wis. 666 (1899), (80 N. W. Rep. 933). 
 
 In some cases it is said that in order to render a person who goes 
 ahead with knowledge of the defective condition of the highway 
 guilty of contributory negligence, as a matter of law it must appear 
 that the defect was of such a character as to render the highway prac- 
 tically impassable. Corts v. District of Columbia, 18 D. C. 277 (1889) : 
 Prince George's County v. Burgess, 61 Md. 29, 34 (1883). But gen- 
 erally the question " in such cases is whether the danger is so patent 
 and threatening as that one of ordinary care and prudence would not 
 have taken the chances of travelling over that particular portion of 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 237 
 
 § 134. The Effect of. Defective Vision — Total Blindness. 
 — Persons whose vision was always imperfect, and per- 
 sons whose sight has become dimmed by age or injured 
 by disease, are still entitled to use the public highways, 
 and to act upon the same presumption of safety as persons 
 whose vision is perfect. It is not, therefore, negligence 
 as a matter of law for them to attempt to travel upon 
 the highway unattended. The fact of defective vision is 
 simply a circumstance to go to the jury, to be considered 
 by them in determining whether in attempting to use the 
 highway at the time in question the injured person was 
 exercising such reasonable care and caution as an ordi- 
 narily prudent man, laboring under a like infirmity, 
 would exercise under similar circumstances. ^ 
 
 And ordinarily the rule is the same even though the 
 traveller is totally blind.^ "Blindness of itself is not 
 negligence. Nor can passing upon the highway, with the 
 sight of external things cut off by physical incapacity of 
 vision in the traveller, be negligence, in and of itself, 
 
 the street or sidewalk." Stevens v. Walpole. 76 Mo. App. 213, 226 
 (1898), and see cases cited on page 236, note 1. 
 
 It has been held that travelling in a violent storm was not negli- 
 gence as a matter of law, Bills v. Kaukauna, 94 Wis. 310, 314 (1896), 
 (68 N. W. Rep. 992) ; nor driving at a considerable rate of speed, 
 Bly V. Haverhill, 110 Mass. 520 (1872) ; Bills v, Kaukauna, 94 Wis. 
 810, 314 (1896), (68 N. W. Rep. 992) ; nor reclining upon the wagon 
 while driving, Parish u. Eden, 62 Wis. 272, 285 (1885), (22 N. W. 
 Rep. 399); nor the use of an unusual vehicle, Sewell v. Cohoes, 
 75 N. Y. 45 (1878). For a case involving the use of a bicycle, see 
 Sutphen v. North Hempstead, 80 Hun (N. Y.), 409 (1894), (30 N. Y. 
 Supp. 128). 
 
 1 Smith V. Cairo, 48 111. App. 166 (1891); Winn v. Lowell, 1 Allen 
 (Mass.), 177 (1861); Sweeney v. Butte City, 15 Mont. 274 (1895), (39 
 Pac. Rep. 286) ; Davenport v. Ruckman, 37 N. Y. 568, 573 (1868) ; 
 Peach V. Utica, 10 Hun (N. Y.), 477, 480 (1877). 
 
 2 Franklin v. Harter, 127 Ind. 446 (1890), (26 N. E. Rep. 882) ; 
 Sleeper v. Sandown, 52 N. H. 244 (1872) ; Stewart v. Nashville, 96 
 Tenn. 50, 57 (1895), (33 S. W. Rep. 613). And see also NefE v. 
 Wellesley, 148 Mass. 487, 495 (18S9), (20 N. E. Rep. 111). 
 
238 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 any more than passing upon the highway when the same 
 things are wholly obscured by the darkness of the night. 
 . . . Although blindness in itself is not negligence, still, 
 in judging of the conduct of a blind man, his unfortunate 
 disability must be considered, and he must doubtless be 
 held to govei-n his conduct with a reasonable regard to 
 his situation in that respect. " ^ 
 
 § 135. The Effect of Intoxication. — If it appears that 
 the injured person was intoxicated at the time of the acci- 
 dent, that is an important circumstance to be considered 
 by the jury upon the question whether or not due care was 
 exercised by him. The fact of travelling upon the highway 
 while intoxicated will not of itself debar him from main- 
 taining an action if he is injured by a culpable defect there- 
 in ; it simply makes proper the exaction of a greater degree 
 of care from him. He will, therefore, be entitled to re- 
 cover compensation for his injury, unless it appears that 
 the degree of care which his condition demanded was not 
 used, and that such neglect contributed to the accident.^ 
 
 1 Mr. Justice Ladd, in Sleeper v. Sandown, 52 N. H. 244 (1872), 
 at page 251. In that case the court says that the question was 
 whether the injured person could undertake to travel upon the partic- 
 ular part of the highway where he was injured at the time and in the 
 way he did, " taking into consideration his total blindness, and at the 
 same time his familiarity with the road, his ability to do various kinds 
 of work, to go about unattended and take care of himself, the in- 
 creased activity, fidelity, and power of his other senses consequent 
 upon his blindness, if the fact were so." 
 
 " Connecticut. Ashborn v. Waterbury, 70 Conn. 551, 554 (1898), 
 (40 Atl. Kep. 458). 
 
 Illinois. Aurora v. Hillman, 90 Til. 61 (1878). 
 
 Iowa. Cramer v. Burlington, 42 la. 315, 320 (1875). 
 
 Maine. Stuart v. Maehias Port, 48 Me. 477 (1861). 
 
 Massachusetts. Alger v. Lowell, 3 Allen, 402, 406 (1862). 
 
 New York. Monk v. New Utrecht, 104 N. Y., 552, 561 (1887), (11 
 N. E. Rep. 268). 
 
 Wisconsin. Burns v. Elba, 32 Wis. 605, 613 (1873) ; Seymer v. 
 Lake, 66 Wis. 651 (1886), (29 N. W. Rep. 554). 
 
 In Woods V. Tipton County, 128 Ind. 289 (1890), (27 N. E. Rep. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 239 
 
 § 136. The Effect of Defective Powers of Locomotion, — 
 Persons whose powers of locomotion are impaired have 
 nevertheless a right to travel upon the public highways. 
 The fact alone, therefore, that a person injured by a cul- 
 pable defect in the highway was a cripple will not defeat 
 his right of recovery as a matter of law; nor even as a 
 matter of fact, if he can satisfy the jury that he was at 
 the time of the accident exercising care commensurate 
 with his infirmity of locomotion.^ 
 
 § 137. The Application of the Maxim Volenti non fit 
 Injuria. — The doctrine expressed by this max'im has, it 
 seems, only a limited application to actions for injuries 
 suffered by reason of culpable defects in the public high- 
 ways. To make it applicable to such actions, it is not 
 enough to show that the injured person was, at the time 
 of the accident, intentionally exposing himself to the pos- 
 sibility of injury by travelling upon a highway that he 
 knew to be defective.^ It must also be taken into account 
 that travel upon the public ways is a matter not merely of 
 right, but usually also of necessity. What was the con- 
 straint or exigency by which the injured person was led to 
 undertake the trip ? Was it such as to affect his apprecia- 
 
 611), it was held that if a traveller by voluntary intoxication exposed 
 himself to danger and received an injury that he could by the exercise 
 of ordinary prudence avoid, if sober, he was guilty of contributory 
 negligence. See also Loftus v. North Adams, 160 Mass. 161 (1893), 
 (35 N. E. Rep. 674). 
 
 If the injured person was sober at the time when the accident hap- 
 pened, the fact that he was a man of intemperate habits is not admis- 
 sible in evidence. Langworthy v. Green Township, 88 Mich. 207 
 (1891), (50 N. W. Rep. 130); Hampson v. Taylor, 15 R. I. 83, 88 
 (1885), (8 Atl. Rep. 331). And see also as to this point Edwards v. 
 Worcester, 172 Mass. 104 (1898), (51 N. E. Rep. 447). 
 
 1 Mt. Vernon v. Brooks, 39 HI. App. 426, 433 (1890) ; Smith v. 
 Cairo, 48 111. App. 166 (1891); Higgins v. Glens Falls, 11 N. Y. Supp. 
 289 (1890). 
 
 " See § 133, ante. 
 
240 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 tion of the nature and degree of the danger from the exist- 
 ence of the defect, or to lead him to assume a risk that he 
 would not take under ordinary circumstances ? Such con- 
 siderations affect in large measure the question whether 
 the assumption of the risk was voluntary, and whether he 
 was justified in exposing himself to a greater danger than 
 he could prudently incur under ordinary circumstances.^ 
 
 But, nevertheless, if, when the exigency of the case does 
 not require it, a person voluntarily chooses to travel upon 
 a highway which he knows to be defective, understanding 
 the danger of such a course, he will be held to have 
 assumed the risk, and will be debarred from maintaining 
 an action for any injury he may suffer. ^ 
 
 /. Lack of Fcnds. 
 
 § 138. The Lack of Means as a Defence. — The duty of 
 municipal corporations relative to highways is not greater 
 than, but only commensurate with, the power vested in 
 them for its performance. Whenever, therefore, they 
 have not at their command the means with which to 
 make, or to cause to be made, needed repairs, they are 
 not responsible for any injuries that may result to trav- 
 ellers from their failure to so do.^ But this does not 
 mean that a mere absence of available funds in the treas- 
 ury is sufficient to release them from the performance of 
 their duty to repair. Although there may be no money 
 in the treasury available for the purpose, a municipality 
 will still be liable for the consequences of its failure to 
 
 1 Pomeroy v. Westfleld, 154 Mass. 462 (1891), (28 N. E. Rep. 899). 
 
 2 Gilman v. Deerfield, 15 Gray (Mass.), 577 (1860); Wilson v. 
 Charlestown, 8 Allen (Mass.), 137 (1864). 
 
 8 Garlinghouse v. Jacobs, 29 N. Y. 297 (1864) ; Monk v. New 
 Utrecht, 104 N. Y. 552, 5.57 (1887), (11 N. E. Rep. 268); Whitfield 
 V. Meridian, 66 Miss. 570, 575 (1889), (6 So. Rep. 244). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 241 
 
 properly maintain its public ways if it appears that it had 
 either the power to provide the necessary funds by taxa- 
 tion or otherwise ;i or the power to enforce contributions 
 of labor from its inhabitants ;2 or the power to make the 
 needed repairs and charge up the cost upon the abutting 
 property." 
 
 Part III, 
 
 Statutory Notice of the Accident. 
 
 § 139. The Effect of a Statutory Provision requiring the 
 giving of a Notice of the Accident. — In order to enable 
 municipal corporations to investigate their liability in 
 
 1 Alabama. Albrittin v. Huntsville, 60 Ala. 486 (1877). 
 Illinois. Mt. Vernon v. Brooks, 39 111. App. 426, 431 (1890). 
 Michigan. Moon v. Ionia, 81 Mich. 635 (1890), (46 N. W. Rep. 
 
 25). 
 
 Minnesota. Shartle v. Minneapolis, 17 Minn. 808 (1871). 
 
 New York. Hines v. Lockport, 50 N. Y. 238, 238 (1872) ; Pomfrey 
 V. Saratoga Springs, 104 N. Y. 459, 468 (1887), (11 N. E. Rep. 43); 
 Ivory V. Deerpark, 116 N. Y. 476, 484 (1889), (22 N. E. Rep. 1080). 
 
 Pennsylimnia. Erie u. Schwingle, 22 Pa. St. 384 (1853). 
 
 Wisconsin. Burns v. Elba, 32 Wis. 605, 610 (1873). 
 
 United States. Evanston v. Gunn, 99 U. S. 660, 667 (1878). 
 
 2 Birmingham u. Lewis, 92 Ala. 352 (1890), (9 So. Rep. 243) ; 
 Lombar v. East Tawas, 86 Mich. 14, 23 (1891), (48 IST. W. Rep. 947); 
 Weed V. Ballston Spa, 76 N. Y. 329, 334 (1879). In this last case the 
 court says, at page 335 : " The ability to summon the inhabitants to 
 do highway labor, should be regarded as means under the control of 
 the corporation for performing the duty imposed." 
 
 8 New Albany v. McCulloch, 127 Ind. 500, 503 (1890), (26 N. E. 
 Rep. 1074) ; Shelby v. Clagett, 46 Oh. St. 549, 553 (1889), (22 N. E. 
 Rep. 407). 
 
 Hence it is no defence that the supervisor neglected or refused to 
 pay over to the highway commissioner the necessary funds with which 
 to make repairs. Clapper v. Waterford, 62 Hun (N. Y.), 170 (1891), 
 (16 N. Y. Supp. 640). 
 
 A lack of means constitutes no defence where the action is for in- 
 juries due to defects in the original construction of the highway. 
 Bartle v. Des Moines, 38 la. 414 (1874). 
 
 16 
 
242 LIABILITY OF MUNICIPAL CORPORATIONS FOE TORT. 
 
 each case where an injury is alleged to have been sus- 
 tained by reason of a defect in the highway, at a time 
 when the important facts relating to the condition of the 
 way and to the circumstances of the accident are easily 
 accessible, thus giving them an opportunity to settle with- 
 out litigation such claims as may prove to be honest and 
 well founded and to resist more successfully such as turn 
 out to be false or exaggerated, provisions have been 
 enacted in many states, sometimes in the general laws 
 and sometimes in the charter of a particular corporation, 
 requiring an injured person to give, within a specified 
 time, a notice of his accident. ^ Provisions of this kind 
 are generally construed by the courts to be mandatory in 
 character, and not directory merely. The giving of such 
 a notice, when required, is generally held, therefore, to 
 be a condition precedent to maintaining an action for 
 the injury,^ and must be alleged in the pleadings and 
 
 1 See Shaw v. Waterhury, 46 Conn. 263 (1878) ; Whitman v. Grove- 
 land, 131 Mass. 553, 556 (1881) ; Sargent v. Gilford, 66 N. H. 543 
 (1891), (27 Atl. Rep. 306) ; Reining v. Buffalo, 102 N. Y. 308, 310 
 (1886), (6 N. E. Rep. 792) ; White v. Stowe, 54 Vt. 510 (1881); Went- 
 worth V. Summit, 60 Wis. 281, 283 (1884), (19 N. W. Rep. 97). 
 
 2 Colorado. Cunningham v. Denver, 23 Col. 18 (1896), (45 Pac. 
 Kep. 356). 
 
 Iowa. Starling v. Bedford, 94 la. 194 (1895), (62 N. W. Rep. 674) ; 
 Giles V. Shenandoah, 82 N. W. Rep. 466 (1900). 
 
 Maine. Greenleaf v. Norridgwock, 82 Me. 62 (1889), (19 Atl. 
 Rep. 91). 
 
 Massachusetts. Kenady v. Lawrence, 128 Mass. 318 (1880). 
 
 Minnesota. Engstrom v. Minneapolis, 78 Minn. 200 (1899), (80 
 N. W. Rep 962). 
 
 New Hampshire. Sargent v. Gilford, 66 N. H. 543 (1891), (27 Atl, 
 Rep. 306). 
 
 New York. Reining v. Buffalo, 102 N. Y. 308 (1886), (6 N. E. 
 Rep. 792) ; Borst v. Sharon, 24 N. Y. App. Div. 599 (1898), (48 N. Y. 
 Supp. 996). 
 
 Wisconsin. Susenguth v. Rantoul, 48 Wis. 384 (1879), (4 N. W. 
 Rep. 328) ; Sowle v. Tomah, 81 Wis. 349, 351 (1892), (51 N. W. Rep. 
 571). 
 
THE LIABILITY EELATIVE TO STREETS AND HIGHWAYS. 243 
 
 proved at the trial. ^ Indeed, so strictly is this construction 
 applied that it is commonly held that a municipality can- 
 not, if it would, waive compliance with such a requirement. ^ 
 § 140. The Sufficiency of the Notice. — The items which 
 a statutory provision requires to be set forth in a notice of 
 the accident must all be stated,^ though not in any partic- 
 ular form of words, A communication that sets each of 
 them out with reasonable fulness, although without tech- 
 nical formality or scientific precision, will ordinarily 
 satisfy the statutory requirements.* The minuteness with 
 which the required items should be stated must depend 
 very largely upon the circumstances of each particular 
 case.^ But the broad general rule is that the notice must 
 
 ' Maddox v. Kandolph County, 65 Ga. 216 (1880) ; Reining v. 
 Buffalo, 102 N. Y. 308 (1886), (6 N. E. Rep. 792) ; Benware v. Pine 
 Valley, 53 Wis. 527 (1881), (10 N. W. Rep. 695); Wentworth v. Sum- 
 mit, 60 Wis. 281 (1884), (19 N. W. Rep. 97). 
 
 2 Iowa. Starling v. Bedford, 94- la. 194 (1895), (62 N. W. Rep. 
 674). 
 
 Maine. Veazie v. Rockland, 68 Me. 511 (1878). 
 
 Massachusetts. Gay v. Cambridge, 128 Mass. 387 (1880) ; Madden 
 V. Springfield, 131 Mass. 441 (1881). 
 
 New York. Borst v. Sharon, 24 N. Y. App. Div. 599, 602 (1898), 
 (48 ST. Y. Supp. 996). 
 And see also Hoyle u. Putnam, 46 Conn. 56 (1878). 
 
 » Denver v. Saulcey, 5 Col. App. 420, 422 (1895), (38 Pac. Rep. 
 1098); Underbill v. Washington, 46 Vt. 767 (1874); Babcock v. 
 Guilford, 47 Vt. 519 (1875). 
 
 * Harris v. Newbury, 128 Mass. 321, 325 (1880) ; Kenady v. Law- 
 rence, 128 Mass. 318 (1880) ; McNulty v. Cambridge, 130 Mass. 275 
 (1881) ; Robin v. Bartlett, 64 N. H. 426 (1887), (13 Atl. Rep. 645) ; 
 Quinn v. Sempronius, 33 N. Y. App. Div. 70, 73 (1898), (53 N. Y. 
 Supp. 325). 
 
 A verbal notice, where the statute requires one in writing, is not 
 sufficient. Veazie v. Rockland, 68 Me. 511 (1878). And any defi- 
 ciencies in the written notice cannot be supplied by oral statements 
 made to the officers of the corporation. Roberts v. Douglas, 140 
 Mass. 129 (1885), (2 N. E. Rep. 775). 
 
 6 Larkin v. Boston, 128 Mass. 521, 522 (1880) ; Donnelly v. Fall 
 
244 LIABILITY OP MUNICIPAL CORPORATIONS FOB TORT. 
 
 be SO reasonably specific in its statement of each of the 
 necessary particulars as to be of substantial assistance 
 to the officers of the corporation in investigating the 
 case.i 
 
 The question of the sufficiency of a notice is one of law, 
 to be determined by the court from an inspection of the 
 whole communication. 2 The rules of construction, how- 
 ever, are not to be applied to it with technical strictness.^ 
 
 § 141. The Statement of the Time of the Accident. — As 
 a general rule simply stating the day upon which the 
 injury was sustained, provided the year also is given,^ is 
 a sufficient compliance with a statutory provision requir- 
 ing a statement in the notice of the time of the happening 
 of the accident. The hour of the day need not be set out, 
 unless it appears that something depends upon the exact 
 time of the accident.^ 
 
 Any material variance between the time of the accident 
 as stated in the notice and as proved at the trial is fatal. ^ 
 
 River, 132 Mass. 299, 301 (1882) ; Benson c. Madison, 101 Wis. 312 
 (1898), (77 N. W. Rep. 161). 
 
 1 Dalton V. Salem, 136 Mass. 278 (1884) ; Canterbury v. Boston, 
 141 Mass. 215 (1886), (4 N. E. Rep. 808); Benson v. Madison, 101 
 Wis. 312 (1898), (77 N. W. Rep. 161). 
 
 2 Rogers v. Shirley, 74 Me. 144, 151 (1882); Shea v. Lowell, 132 
 Mass. 187 (1882) ; Lyman v. Hampshire County, 138 Mass. 74 (1884) ; 
 Holoomb u. Danbury, 51 Vt. 428 (1879). 
 
 8 See Spellman v. CMoopee, 131 Mass. 443 (1881). 
 
 4 White V. Stowe, 54 Vt. 510 (1881). 
 
 6 Lilly u. Woodstock, 59 Conn. 219,224 (1890), (22 Atl. Rep. 40); 
 Donnelly v. Fall River, 132 Mass. 299 (1882) ; Welch v. Gardner, 133 
 Mass. 529 (1882) ; Cronin v. Boston, 135 Mass. 110 (1888) ; Sherry v. 
 Rochester, 62 N. H. 346 (1882). 
 
 6 Shaw V. Waterbury, 48 Conn. 263, 266 (1878), where a variation 
 of forty days was held to be fatal. Sullivan v. Syracuse, 77 Hun 
 (N. Y.), 440, 442 (1894), (29 N. Y. Supp. 105), where it was held that 
 there was no material variance when the notice stated that the acci- 
 dent happened on August 5, and it appeared at the trial that it hap- 
 pened on the evening of August 4. 
 
TUE LIABILITY EELATIVB TO STREETS AND HIGHWAYS. 245 
 
 § 142. The Statement of the Place of the Accident. — The 
 place where the accident happened should be stated in the 
 notice, when the statute requires it,^ with sufficient par- 
 ticularity to make it possible for the municipal author- 
 ities to locate, with reasonable, certainty, the precise 
 spot.2 This rule obviously is not satisfied by simply 
 naming the street or road upon which the injury was 
 received, especially if such street or road is of any 
 considerable length.^ The location should be made 
 more exact by reference to nearby buildings,* to another 
 
 1 Where the required statement of the place of the accident was 
 wholly omitted, the notice was held to be insufficient. Underhill v. 
 Washington, 46 Vt. 767 (1874). 
 
 2 Connecticut. Shaw v. Waterbury, 46 Conn. 263, 266 (1878). 
 Maine. Chapman v. Nobleboro, 76 Me. 427 (1884). 
 Massachusetts. Lowe v. Clinton, 133 Mass. 526 (1882); MoCabeu. 
 
 Cambridge, 134 Mass. 484 (1883); Shallow v. Salem, 136 Mass. 136 
 (1883); Lyman v. Hampshire County, 138 Mass. 74 (1884); Hughes 
 V. Lawrence, 160 Mass. 474 (1894), (36 N E. Rep. 485). 
 
 Nebraska. Lincoln v. Pirner, 81 N. W. Rep. 846 (1900). 
 
 New Hampshire. Home v. Rochester, 62 N. H. 347 (1882) ; Carr 
 V. Ashland, 62 N. II. 665 (1883). 
 
 New York. Werner v. Rochester, 77 Hun, 33 (1894), (28 N. Y. 
 Supp. 226) ; Cross v. Elmira, 86 Hun, 467 (1895), (33 N. Y. Supp. 947). 
 
 Vermont. Tassett v. Roxburj', 55 Vt. 5.52 (1883). 
 
 Wisconsin. Fopper v. Wheatland, 59 Wis. 623 (1884), (18 N. W. 
 Rep. 514) ; Weber v. Greenfield, 74 Wis. 2.34 (1889), (42 N. W. Rep. 
 101). 
 
 If the statute requires it, the notice must state that the accident 
 occurred upon a highway within the limits of the particular corpora- 
 tion which is sought to be charged with liability. White v. Stowe, 
 54 Vt. 510 (1881); Farnsworth v. Mount Holly, 63 Vt. 293 (1891), 
 (22 Atl. Rep. 459). 
 
 3 Rogers v. Shirley, 74 Me. 144 (1882); Larkin v. Boston, 128 
 Mass. 521 (1880); Post u. Foxborough, 131 Mass. 202 (1881); Don- 
 nelly V. Fall River, 132 Mass. 299 (1882) ; Currier v. Concord, 68 
 N. H. 294 (1895), (44 Atl. Rep. 386) ; Law v. Fairfield, 46 Vt. 425 
 (1874) ; Babcook v. Guilford, 47 Vt. 519 (1875) ; Sowle v. Tomah, 81 
 Wis. 349 (1892), (51 N. W. Rep. 571). 
 
 * See White v. Vassalborough, 82 Me. 67 (1889), (19 Atl. Rep. 99) ; 
 
246 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 street,^ or to any natural object. '^ But if there is an ambi- 
 guity upon the subject, the other statements contained in 
 the notice may be considered in aid of the description of the 
 place, and it is enough if the correct location of the defect 
 can be determined from the communication taken as a whole.^ 
 § 143. The statement of the Defect — Of the Cause of the 
 Accident. — Whenever a statute requires a statement of 
 the defect to be included in the notice of the accident, it 
 is ordinarily sufficient to describe that condition of the 
 highway which caused the injury with such clearness as 
 to fairly indicate to the municipal authorities the partic- 
 ular defect of which complaint is made.* If this be done, 
 the fact that there was another defect, not referred to in 
 the notice, which contributed to the injury, will not 
 invalidate the notice given. ^ 
 
 Davis V. Rumney, 67 N. H. 591 (1891), (38 Atl. Rep. 18); Ranney v. 
 Sheffield, 49 Vt. 191 (1876) ; Harris v. Townshend, 56 Vt. 716 (1883) ; 
 Salladay v. Dodgeville, 85 Wis. 818 (1893), (55 N. W. Rep. 696). 
 
 " On the sidewalk in front of " a specified building means in the 
 immediate front, and not across the street. Cloughessey v. Water- 
 bury, 51 Conn. 405, 421 (1883). 
 
 1 See McCabe v. Cambridge, 134 Mass. 484 (1883); Sargent v. 
 Lynn, 138 Mass. 599 (1885). 
 
 2 See Welch v. Gardner, 133 Mass. 529 (1882) ; Robin v. Bartlett, 
 64 N. H. 426 (1887), (13 Atl. Rep. 845) ; Melendy v. Bradford, 56 Vt. 
 148 (1883) ; Wieting v. Millston, 77 Wis. 523 (1890), (46 N. W. Rep, 
 879). 
 
 8 Lowe V. Clinton, 133 Mass. 526 (1882) ; Sargent v. Lynn, 138 
 Mass. 599 (1885) ; Sowle v. Tomah, 81 Wis. 349, 352 (1892), (51 N. W. 
 Rep. 571). 
 
 * Lilly V. Woodstock, 59 Conn. 219, 223 (1890), (22 Atl. Rep. 40); 
 Manning v. Same, 59 Conn. 224 (1890), (22 Atl. Rep. 42) ; Hubbard 
 V. Fayette, 70 Me. 121 (1879) ; Wieting v. Millston, 77 Wis. 523, 528 
 (1890), (46 N. W. Rep. 870); Salladay v. Dodgeville, 85 Wis. 318 
 (1893), (55 ST. W. Rep. 696) ; Benson v. Madison, 101 Wis. 312 (1898), 
 (77 N. W. Rep. 161). 
 
 6 Ashborn v. Waterbury, 70 Conn. 551 (1898), (40 Atl. Rep. 458) ; 
 Quinn v. Sempronius, 33 N. Y. App. Div. 70 (1898), (53 N. Y. Supp. 
 325). 
 
THE LIABILITY EELATIVE TO STEEETS AND HIGHWAYS. 247 
 
 The designation of that state of facts which constitutes 
 the alleged defect by reason of which the accident hap- 
 pened is a proper and sufficient statement of the cause of 
 the injury, within the meaning of the provision of a statute 
 which requires that item to be stated in a notice of the 
 accident. 1 Under this rule it is not enough merely to say 
 that the plaintiff was injured " by reason of a defect in 
 the highway," — that is not a statement of the cause of 
 the particular injury, but rather a statement of the gen- 
 eral ground upon which municipal corporations are in 
 every case liable for injuries suffered upon the highway.^ 
 But if the defect itself is properly described, it is not 
 necessary that the notice should go further and state the 
 cause of that defect,^ nor even allege that the condition of 
 things described constituted a defect.* 
 
 § 144. The statement of the Injuries received — Of the 
 Claim of Damages. — It is a sufficient compliance with a 
 statutory provision requiring a description of the injuries 
 sustained to be given in the notice of the accident, to 
 name the part of the person affected and to describe the 
 extent of the hurt in such a reasonably complete manner as 
 a person of common intelligence would be capable of doing. 
 Scientific precision or technical language is not required.^ 
 
 1 Taylor v. Woburn, 130 Mass. 494 (1881) ; Aston v. Newton, 134 
 Mass. 507 (1883) ; Groganu. Worcester, 140 Mass. 227 (1885), (4 N. E. 
 Rep. 230) ; Davis v. Charlton, 140 Mass. 422 (1886), (5 N. E. Rep. 
 473) ; Young v. Douglas, 157 Mass. 383 (1892), (32 N". E. Rep. 354) ; 
 Paddock v. Syracuse, 61 Hun (N. Y.), 8, 11 (1891), (15 N. Y. Supp. 
 387). 
 
 ^ Noonan v. Lawrence, 130 Ma.ss. 161 (1881) ; MoNulty v. Cam- 
 bridge, 130 Mass. 275 (1881) ; Miles v. Lynn, 130 Mass. 398 (1881) ; 
 Madden v. Springfield, 131 Mass. 441 (1881); Dalton v. Salem, 131 
 Mass. 551 (1881). And see also Bailey v. Everett, 132 Mass. 441 
 (1882); Maloney v. Cook, 21 R. I. 471 (i899), (44 Atl. Rep. 692). 
 
 = Whitman v. Groveland, 131 Mass. 553, 555 (1881). 
 
 * Savory v. Haverhill, 132 Mass. 324, 326 (1882). 
 
 ' Brown v. Southbury, 58 Conn. 212 (1885), (1 Atl. Rep. 819); 
 
248 LIABILITY OF MUNICIPAL CORPORATIONS FOB TORT. 
 
 The purpose of a provision requiring a statement in the 
 notice of the accident of the claim of damages has been 
 held to be simply to notify the corporation that damages 
 are claimed. To come within the requirement of such a 
 provision, therefore, it is enough if the injured person 
 states in his notice that he makes a claim for damages for 
 his injury. The damages need not be specified, nor need 
 the amount claimed be specified.^ 
 
 § 145. The Notice must be given within the Time Limit. 
 — The notice containing the required particulars of the 
 accident must be given within the time specified in the 
 statute : if given after the expiration of that time, no 
 action for the injury can be maintained,^ unless, it has 
 been held, the person can show that by reason of the 
 accident he was incapable of complying with the statutory 
 requirement in this particular.^ 
 
 Lilly V. Woodstock, 59 Conn. 219, 223 (1890), (22 Atl. Kep. 40) ; 
 Bradbury v. Benton, 69 Me. 194 (1879) ; Low v. Windham, 75 Me. 
 113 (1888) ; Goodwin v. Gardiner, 81 Me. 278 (1892), (24 Atl. Rep. 
 846) ; Robin v. Bartlett, 64 N. H. 426 (1887), (13 Atl. Kep. 645). 
 But this was not enough under the Vermont statute, where a state- 
 ment of the effect of the injuries upon the health was required. Nourse 
 V. Victory, 51 Vt. 275 (1878) ; Pratt v. Sherburne, 53 Vt. 370 (1881) ; 
 Fassett v. Roxbury, 55 Vt. 552 (1883) ; Willard v. Sherburne, 59 Vt. 
 361 (1887), (8 Atl. Rep. 735). 
 
 1 Sawyer v. Naples, 66 Me. 453, 455 (1876) ; Morgan v. Lewiston, 
 91 Me. 566, 571 (1898), (40 Atl. Rep. 545), distinguishing Lord v. 
 Saco, 87 Me. 231 (1895), (32 Atl. Rep. 887) ; Miniok v. Troy, 88 
 N, Y. 514, 516 (1881). 
 
 2 Veazie v. Rockland, 68 Me. 511 (1878) ; Mitchell v. ^Vorcester, 129 
 Mass. 525 (1880); Fort Worth v. Shero, 16 Tes. Civ. App. 487 (1897), 
 (41 S. W. Rep. 704). 
 
 3 See Webster v. Beaver Dam, 84 Fed. Rep. 280 (1898), where it 
 was held that an action might be maintained, although the notice was 
 not given within the time required by law, it appearing that the in- 
 jured person was so far disabled by the accident that she could not 
 give the notice within the time limited, but that she did give it as 
 soon as she was able. 
 
 In the Massachusetts statute provision is expressly made for giving 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 249 
 
 In reckoning the time specified in the statute, fractions 
 of a day are disregarded.^ 
 
 § 146. The Service of the Notice of the Accident. — 
 When the officer of the corporation upon whom service 
 of the notice of the accident is to be made is specified in 
 the statute, it must be served upon that officer. In such 
 cases, service upon another officer than the one specified 
 in the statute is not such a compliance with the statutory 
 requirement as to permit the maintenance of an action, 
 although the officer upon whom the service was actually 
 made was one of the principal officers of the corporation. ^ 
 
 As a general rule, where the manner of serving the 
 notice is not prescribed in the statute, any manner of ser- 
 vice that gets it into the hands of the specified officer of 
 the corporation within the prescribed time is sufficient.* 
 
 the notice in cases where " from physical or mental incapacity it is 
 impossible for the person injured to give the notice within the time 
 provided." Pub. Sts. of Mass., 1882, ch. 52, § 21. As to what is 
 " physical or mental incapacity " within the meaning of that pro- 
 vision, see Williams, Stat. Torts in Massachusetts, § 59. 
 
 1 Giddings v. Ira, 54 Vt. 346, 350 (1882). 
 
 2 Denver v. Saulcey, 5 Col. App. 420, 423 (1895), (38 Pac. Kep. 
 1098); Taylor v. Wobm-n, 130 Mass. 494 (1881); Fort Worth v. 
 Shero, 16 Tex. Civ. App. 487 (1897), (41 S. W. Rep. 704) ; Harris 
 V. Fond du Lac, 104 Wis. 44 (1899), (80 N. W. Rep. 06). 
 
 8 Taylor v. Woburn, 130 Mass. 494 (1881) ; Wieting v. Millston, 
 77 Wis. 523, 527 (1890), (46 N. W. Rep. 879). 
 
 But where the statute required that the notice " shall be filed " 
 with the corporation counsel, service by mail has been held to be in- 
 sufficient. " That requirement imposes upon the claimant the duty 
 of doing everything necessary to put the corporation counsel in physi- 
 cal possession of the notice so that it maybe said to be on file with 
 him — mailing is not the equivalent of filing required by the statute. 
 Delivery by or on behalf of the claimant at the office in which the 
 filing is to be made will alone satisfy the statute." Burford v. Mayor, 
 etc. of New York, 26 N. Y. App. Div. 225, 226 (1898), (49 N. Y. Supp. 
 
 In Sheehy v. Mayor, etc. of New York, 160 N. Y. 139 (1899), (54 
 N. E. Rep. 749), it was held that the provisions of Laws 1886, c. 572, 
 
250 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 Part IV. 
 
 Evidence. 
 
 § 147. The Experiences of other Persons at the same 
 Place. — The weight of judicial opinion favors the rule 
 that evidence of the happening of accidents to other per- 
 sons while passing the alleged defective spot is competent 
 upon the issue as to the existence of a defect in the high- 
 way at the point in question.^ This rule is rested upon 
 the ground that such testimony has a legitimate tendency 
 
 that no action should be maintained against a city for personal 
 injuries unless notice of the intention to sue shall have been filed 
 with the corporation counsel within six months after the cause of 
 action accrued, was sufficiently complied with by a notice which, 
 although it contained no express statement of an intention to sue, 
 was entitled in the matter of the plaintiff against the city, and de- 
 clared that the plaintiff claimed and demanded from the city damages 
 for personal injuries, and was signed by the plaintiff by her attor- 
 neys, who gave their address as required on formal papers in legal 
 proceedings. 
 
 I Connecticut. House v. Metcalf, 27 Conn. 631 (1838). 
 
 Georgia. Augusta v. Hafers, 61 Ga. 48, 51 (1878). 
 
 Illinois. Aurora v. Brown, 12 111. App. 122, 130 (1882). 
 
 Iowa. Frohs v. Dubuque, 109 la. 219 (1899), (80 N. W. Rep. 341). 
 
 Kansas. Topeka v. Sherwood, 39 Kan. 690, 695 (1888), (18 Pac. 
 Rep. 933). 
 
 Michigan. Lombar v. East Tawas, 86 Mich. 14, 20 (1891), (48 
 N. W. Rep. 947). But see Langworthy v. Green Township, 88 Mich. 
 207, 215 (1891), (50 N. W. Rep. 130). 
 
 New Hampshire. Cook p. New Durham, 64 N. H. 419 (1887), (13 
 Atl. Rep. 650). But see Hubbard v. Concord, 35 N. H. 52, 59 
 (1857). 
 
 New York. Quinlan v. Utica, 11 Hun, 217 (1877), affirmed in 74 
 N. Y. 603 (1878) ; Burns v. Schenectady, 24 Hun, 10 (1881); Fordham 
 V. Gouverneur Village, 160 N. Y. 541 (1899), (55 N. E. Rep. 290). 
 
 Vermont. Kent v. Lincoln, 32 Vt. 591, 597 (1860). 
 
 Washington. Elster v. Seattle, 18 Wash. 304 (1897), (51 Pac. Rep. 
 394). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 251 
 
 to show that the particular part of the highway under 
 consideration, when tested by actual use, was in an unsafe 
 and improper condition. 
 
 But in Massachusetts and in some other states such 
 experiences of third persons are treated by the courts as 
 collateral facts which furnish no legal presumption as to 
 the principal fact in dispute, and are held, therefore, not 
 to be admissible in evidence.^ In these latter states it is 
 also held not to be competent for the defendant corpora- 
 tion to show that other persons than the plaintiff had 
 passed and repassed the place alleged to be defective in 
 safety; 2 nor to show that no accident had previously 
 happened at the place of the alleged defect.^ And this 
 rule of evidence is not altered by facts which show that 
 
 1 Maine. Bremner v. Newcastle, 83 Me. 415 (1891), (22 Atl. Rep. 
 382). 
 
 Massachusetts. Collins v. Dorchester, 6 Cush. 396 (1850); Blair v. 
 Pelham, 118 Mass. 420, 422 (1875). 
 
 Missouri. Goble v. Kansas City, 148 Mo. 470 (1899), (50 S. W. 
 Eep. 84). 
 
 Virginia. Moore v. Eichnaond, 85 Va. 538, 539 (1888), (8 S. E. 
 Rep. 387). 
 
 Wisconsin. Phillips v. Willow, 70 "Wis. 6 (1 887), (34 N. W. Rep, 731). 
 
 2 Indiana. Bauer v. Indianapolis, 99 Ind. 56, 60 (1884). 
 Maine. Branch v. Libbey, 78 Me. 321 (1886), (5 Atl. Rep. 71). 
 Massachusetts. Aldrich v. Pelham, 1 Gray, 510 (1854) ; Kidder v. 
 
 Dunstable, 11 Gray, 342 (1858); Schoonmaker v. Wilbraham, 110 
 Mass. 134 (1872). 
 
 But see Calkins v. Hartford, 33 Conn. 57 (1865). 
 
 s Marvin v. New Bedford, 158 Mass. 464 (1893), (33 N. E. Rep. 
 005). But see Littlefield v. Norwich, 40 Conn. 406 (1873); Maxim 
 V. Champion, 50 Hun, 88, 98 (1888), (4 N. Y. Supp. 515), affirmed in 
 119 N. Y. 626 (1890). 
 
 So where the defect relied on was the insufficient width of the high- 
 way, it was held incompetent for the plaintiff to show that other car- 
 riages had been unable to pass at the place of the accident, Merrill v. 
 Bradford, 110 Mass. 505 (1872) ; or for the defendant town to show 
 that other vehicles had met there and passed without difficulty, Aldrich 
 V. Pelham, 1 Gray (Mass.), 510 (1854). 
 
252 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 the condition of the highway had all the time remained 
 unchanged. •* 
 
 § 148. The Existence of Similar Defects in other Places. 
 — The fact that conditions like those alleged, in the 
 particular case, to constitute a defect in the highway 
 existed in the highway somewhere else, obviously has no 
 tendency to prove that such conditions did not constitute 
 a defect, nor can they a£ford a defendant corporation any 
 excuse for its own neglect of duty. Hence it is commonly 
 held not to be competent for a municipal corporation to 
 put in evidence tending to show either that its highway 
 at the place where the accident happened was in the same 
 condition as the highway in other municipalities,^ or that 
 places of the same character existed in other streets 
 within its own limits.^ 
 
 § 149. The state of the Highway at other Times. — Evi- 
 dence of the condition of the highway at a time prior to, 
 or subsequent to, the happening of the accident in ques- 
 tion is generally considered to be admissible upon the 
 issue whether or not the highway was in a defective con- 
 dition at the time when the injury was received, provided 
 it is so near in point of time, or is accompanied by such 
 
 1 Aldrioh v. Pelham, 1 Gray (Mass.), 510 (1854); Merrill v. Brad- 
 ford, 110 Mass. 50-5 (1872). 
 
 2 Illinois. Champaign v. Patterson, 50 111. 61, 65 (1869). 
 Massachusetts. Kidder v. Dunstable, 11 Gray, 312 (1858); George 
 
 t'. Haverhill, 110 Mass. 506, 512 (1872) ; Marvin v. New Bedford, 158 
 Mass, 464 (1893), (33 N. E. Rep. 605). And see also Raymond v. 
 Lowell, 6 Cush. 524 (1850). 
 
 Michigan. Malloy v. Walker Township, 77 Mich. 448, 465 (1889), 
 (43 N. W. Rep. 1012). 
 
 New Hampshire. Hubbard v. Concord, 35 N. H. 52, 60 (1857). 
 
 3 Indiana. Bauer v. Indianapolis, 99 Ind. 56, 62 (1884). 
 
 Iowa. Weber v. Creston, 75 la. 16, 18 (1888), (39 N. W. Rep. 126). 
 Massachusetts. Bacon v. Boston, 3 Cush. 174, 181 (1819). 
 Michigan. Langworthy v. Green Township, 88 Mich. 207, 216 
 (1891), (50 N. W. Rep. 130). 
 
 New Hampshire. Rowell v. HoUis, 62 N. H. 129 (1882). 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 253 
 
 further facts, as to furnish a presumption that the con- 
 dition had not changed meanwhile. ^ Thus, where the 
 accident happened on Monday morning, evidence of the 
 condition of the highway on the previous Saturday night 
 was admitted. 2 And so evidence of the width of the high- 
 way at the place of the accident nine months after the 
 injury was admitted, together with evidence tending to 
 show that the width had remained unchanged during 
 that time.^ How far either side of the day of the accident 
 the limit shall extend is for the court. In the exercise of a 
 reasonable discretion, to determine.* 
 
 § 150. Resolutions or Reports of Municipal Authorities 
 admissible to show Notice of the Defect. — The overwhelm- 
 ing weight of judicial opinion favors the rule that the 
 official acts of the city or village council in the form of 
 resolutions, reports or the like, done in regular session 
 and within the scope of the powers conferred by charter 
 or general laws, are competent evidence tending to show 
 actual notice to the corporation of the existence of the 
 alleged defect in the highway.^ This rule is rested upon 
 
 1 Bailey u. Centerville, 108 la. 20 (1899), (78 N. W. Rep. 831) ; 
 Berrenberg v. Boston, 137 Mass. 231 (1884) ; Woodcock v. Worcester, 
 138 Mass. 268 (1885); Neal v. Boston, 160 Mass. 518, 522 (1894), (36 
 N. E. Rep. 308) ; Langworthy v. Green Township, 88 Mich. 207, 212 
 (1891), (50 N. W. Rep. 130) ; Coates v. Canaan, 51 Vt. 131, 139 
 (1878). 
 
 2 Sheren v. Lowell, 104 Mass. 24 (1870). And see Daniels v. 
 Lowell, 139 Mass. 56 (1885), (29 N. E. Rep. 222). 
 
 » Brooks u. Petersham, 16 Gray (Mass.), 181 (I860). See also 
 George v. Haverhill, 110 Mass. 506 (1872). 
 
 * Neal V. Boston, 100 Mass. 518, 522 (1894), (36 K. E. Rep. 308). 
 
 5 Illinois. Chicago v. Powers, 42 111. 169, 173 (1866). 
 
 Indiana. Delphi v. Lowery, 74 Ind. 520, 526 (1881). 
 
 Iowa. Butler v. Malvern, 91 la. 397 (1894), (59 N. W. Rep. 50). 
 
 Maine. Bond v. Biddeford, 75 Me. 538 (1884). 
 
 Michigan. Thompson v. Quinoy, 83 Mich. 173 (1890), (47 N. W 
 Rep. 114). 
 
 Minnesota. Erd u. St. Paul, 22 Minn. 448 (1876). 
 
 Collins V. Dorchester, 6 Cush. (Mass.) 396 (1850), Wheeler v. 
 
254 LIABILITY OP MUNICIPAL COEPORATIONS FOR TOET. 
 
 the familiar doctrine of agency that the authorized acts of 
 the agent, done in the discharge of his agency, are com- 
 petent to bind his principal. 
 
 § 151. The Experiences of other Persons admissible to 
 show Notice of the Defect. — The fact that similar acci- 
 dents happened to persons other than the plaintiff at the 
 same place is generally held to be admissible in evidence 
 upon the issue of notice to the corporation of the existence 
 of the defect that occasioned the injury. ^ 
 
 Framingham, 12 Cush. (Mass.) 287 (1853), and Dudley v. Weston, 
 1 Met. (Mass.) 477 (1840), are sometimes cited as standing for a con- 
 trary rule, but in Collins v. Dorchester the trial court ruled that such 
 evidence was admissible to show notice, and this ruling was not ques- 
 tioned. In each of those cases evidence of this character was held in- 
 competent to show a defect in the highway — was not admissible as an 
 admission on the part of the town that the highway at the point in 
 question was defective. And in Blake v. Lowell, 143 Mass. 296 (1887), 
 (9 N. E. Rep. 627), an entry made by a policeman prior to the accident, 
 in a book kept for that purpose, stating the defective condition of the 
 sidewalk at the place in question, was held to be admissible upon the 
 issue of notice to the defendant city of the existence of the defect. 
 
 A written report of the street commissioner to the city council, as 
 to the condition of the highway, made in the performance of his official 
 duty, has been held competent to prove notice. Bond v. Biddef ord, 75 
 Me. 538 (1884). 
 
 In Trapnellw. Red Oak Junction, 76 la. 744, 748 (1888), (39 N. W. 
 Rep. 884), the testimony of a member of the city council to the effect 
 that certain complaints as to the condition of the sidewalk in question 
 had been made to the council, was held to be competent to show notice 
 of the alleged defect. 
 
 1 Illinois. Chicago v. Powers, 42 111. 169, 173 (1866). 
 
 Indiana. Delphi v. Lowery, 74 Ind. 520, 523 (1881). 
 
 Iowa. Moore v. Burlington, 49 la. 136 (1878). 
 
 Kansas. Topeka v. Sherwood, 39 Kan. 690, 695 (1888), (18 Pac. 
 Kep. 933). 
 
 Michigan. Alberts v. Vernon, 96 Mich. 549 (1893), (55 N. W. 
 Rep. 1022). 
 
 Minnesota. Burrows v. Lake Crystal, 61 Minn. 857 (1895), (63 
 N. W. Rep. 745). 
 
 Washington. Elster v. Seattle, 18 Wash. 304 (1897), (51 Pac. 
 
THE LIABILITY RELATIVE TO STREETS AND HIGHWAYS. 256 
 
 Rep. 394); Piper v. Spokane, 22 Wash. 147 (1900), (60 Pac. Rep. 
 138). 
 
 Contra: Blair v. Pelham, 118 Mass. 420 (1875). 
 
 In Weeks v. Needham, 156 Mass. 289, 291 (1892), (31 N. E. Rep. 8), 
 the statements of a surveyor of highways, or of a selectman, as to the 
 condition of the highway, were held not to be admissions binding 
 upon the town. 
 
256 LIABILITY OP MUNICIPAL COBPOEATIONS FOE TORT. 
 
 CHAPTBE, VII. 
 
 THE LIABILITY RELATIVE TO DRAINS AND SEWERS. 
 
 I 152. The Duty to provide Drainage. — The duty of mu- 
 nicipal corporations relative to the establishment of a 
 system of drainage for their territory is not absolute in 
 its nature. They cannot be compelled at the suit of a 
 private individual to provide means for carrying off sur- 
 face water or sewage from any particular locality.^ The 
 determination of a variety of questions, each of which 
 requires the exercise of qualities of deliberation, judg- 
 ment and discretion, is necessarily involved in providing 
 public improvements of this kind. What section of the 
 territory of the corporatioa shall be given the preference 
 in the construction of such improvements ? In what order 
 of time shall the construction of them be carried on ? 
 What financial burdens may properly be assumed for the 
 accomplishment of a work of this kind at any given time ? 
 Since these and like problems must be passed upon before 
 the actual work of consti'uction can begin, this duty is 
 essentially of a legislative or quasi judicial character.^ 
 The rule has become well established, in accordance with 
 the general principles of law relating to duties of such 
 
 1 Horton v. Nashville, 4 Lea (Tenn.), 39 (1879). In this case it 
 ■was held that a court of chancery had no power to compel a munici- 
 pal corporation to exercise its judicial power relative to the matter of 
 drainage and to construct a sewer in a particular direction. 
 
 2 See Montgomery v. Gilmer, 33 Ala. 116, 131 (1858) ; Coburn v. 
 Bossert, 13 Ind. App. 359 (1895), (40 N. E. Rep. 281); Mills v. Brook- 
 lyn, 32 N. Y. 489, 495 (1865) ; Lynch v. Mayor, etc of New York, 76 
 N. Y. 60 (1879); Michener ,.. Philadelphia, 118 Pa. St. 535, 540 
 (1888), (12 Atl. Rep. 174). 
 
THE LIABILITY RELATIVE TO DRAINS AND SEWERS. 257 
 
 a nature, that a failure on the part of a municipal cor- 
 poration to act affirmatively and to establish a system 
 of drainage involves no liability at common law.^ Any 
 other rule must take from the legislative and deliberative 
 branch of the municipal body, to which the provisions of 
 the charter or general laws intrusted them, the determina- 
 tion of the numerous questions involved in the performance 
 of this duty, and require in each case the submission of 
 them to the judicial tribunal for revision : a result quite 
 at variance with all principles of law relating to the exer- 
 cise of legislative or quasi judicial power. 
 
 Furthermore, upon the same general principles, if a 
 municipal corporation has made a provision for drainage 
 which by reason of changed conditions has become useless 
 or has been abandoned or discontinued, it is not liable 
 at common law for a failure to provide new means for the 
 accomplishment of the same end, nor responsible for 
 damages resulting therefrom,^ at least where the property 
 
 1 Alabama. Montgomery v. Gilmer, 33 Ala. 116, 131 (1858). 
 Colorado. Daniels v. Denver, 2 Col. 669 (1875) ; Denver v. Rhodes, 
 
 9 Col. 554, 563 (1886), (13 Pac. Rep. 729). 
 
 Indiana. Monticello v. Fox, 3 Ind. App. 481, 487 (1891), (28 
 N. E. Rep. 1025). 
 
 Minnesota. McClure v. Red Wing, 28 Minn. 186, 194 (1881), 
 (9 N. W. Rep. 767) ; St. Paul, etc. R. Co. v. Duluth, 56 Minn. 494. 
 500 (1894), (58 N. W. Rep. 159). 
 
 New York. Wilson v. Mayor, etc. of New York, 1 Den. 595, 598 
 (1845) ; Mills v. Brooklyn, 32 N. Y. 489, 495 (1865). 
 
 Ohio. Springfield v. Spense, 39 Oh. St. 665, 669 (1884). 
 
 Pennsylvania. Carr v. Northern Liberties, 35 Pa. St. 324 (1860). 
 
 West Virginia. Jordan v. Benwood , 42 W. Va. 312 (1896), (26 
 S. E. Rep. 266). 
 
 2 Atchison v. Challiss, 9 Kan. 603, 613 (1872) ; Henderson v. Min- 
 neapolis, 32 Minn. 319, 324 (1884), (20 N. W. Rep. 322) ; Springfield 
 V. Spense, 39 Oh. St. 665 (1884) ; Carr v. Northern Liberties, 35 Pa. 
 St. 324, 330 (1860). 
 
 A case involving the abandonment of a sewer is to be distinguished, 
 of course, from one involving a failure to repair. " The first is the 
 exercise of that discretionary, or quasi judicial power, possessed by 
 
 17 
 
258 LIABILITT OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 owner is left in no worse condition than if no drain or 
 sewer had been constructed and where no negligence on 
 the part of the corporation is involved.^ 
 
 § 153. 'When Municipal Corporations are bound to pro- 
 vide Drainage. — Municipal corporations have no right to 
 collect sewage and deposit it in a body upon private 
 property. Whenever, therefore, the system of drainage 
 adopted leads to such a result, the corporation is bound 
 to exercise reasonable care and skill to provide a proper 
 outlet. Having created the necessity therefor, the duty 
 devolves upon it to make reasonable provision for the es- 
 cape of the sewage without injury to adjacent land-owners.^ 
 
 The mere act of making street improvements, however, 
 such as grading and paving, does not impose upon the 
 corporation the absolute duty to construct drains and 
 sewers, even though the result of such work is that sur- 
 face water is prevented from flowing off from, or is caused 
 to flow on to, if not in a body, the adjoining lots. The 
 necessity created by such acts of the corporation is not 
 such as to bring the case within the above rule.^ 
 
 cities ; the second is the neglect to perform a ministerial duty." 
 Atchison v. Challiss, 9 Kan. 603, 613 '(1872).' 
 
 1 Schroeder v. Baraboo, 93 Wis. 95 (1896), (67 N. W. Kep. 27). 
 
 2 Evansville v. Decker, 84 Ind. 325 (1882); Crawfordsville v. Bond, 
 96 Ind. 236 (1884) ; Fort Wayne v. Coombs, 107 Ind. 75 (1886), (7 N. E. 
 Kep. 743) ; Van Pelt v. Davenport, 42 la. 308, 313 (1875) ; Byrnes v. 
 Cohoes, 67 N. Y. 204 (1876) ; Siefert v. Brooklyn, 101 N. Y. 136 (1886), 
 (4 N. E. Kep. 321) ; Carll v. ^rthport, 11 N. Y. App. Div. 120 (1896), 
 (42 N. Y. Supp. ^6). See also oases cited under § 159, post. 
 
 8 Delaware. Magarity v. Wilmington, 5 Houst. 530 (1879). 
 
 Iowa. Freburg v. Davenport, 63 la. 119 (1884), (18 N. W. Kep. 705). 
 
 Missouri. Foster v. St. Louis, 71 Mo. 157 (1879). 
 
 New York. Wilson v. Mayor, etc. of New York, 1 Den. 595 (1845) ; 
 Lynch v. Same, 76 N. Y. 60 (1879). 
 
 Pennsylvania. AUentown v. Kramer, 73 Pa. St. 406 (1873). 
 
 Wisconsin. Waters v. Bay View, 61 Wis. 642 (1884), (21 N. W. 
 Kep. 811). 
 
 For additional cases see § 164, post. 
 
THE LIABILITY RELATIVE TO DRAINS AND SEWERS. 259 
 
 § 154. The Liability growing out of the Plan of Drainage 
 adopted. ' — It is obvious that the adoption of a general 
 plan of drainage involves many and varied considerations 
 affecting the public health and the general convenience 
 of the community, the determination of each of which 
 requires deliberate judgment and large discretion. The 
 nature of the duty of municipal corporations in the prem- 
 ises is generally conceded to be distinctly judicial or 
 quasi judicial. Hence the doctrine has come to be com- 
 monly accepted by the courts that whatever damages may 
 result from defects in the plan of drainage adopted, are 
 damages incident to the lawful exercise of their discre- 
 tionary power, for which they cannot be held responsible 
 at the suit of a private individual, i Whatever diversity 
 
 1 Arkansas. Little Rock v. Willis, 27 Ark. 572 (1872). 
 
 Colorado. Denver v. Capelli, 4 Col. 25 (1877). 
 
 Delaware. Magarity v. Wilmington, 5 Houst. 530 (1879). 
 
 District of Columbia. Bannagan v. District of Columbia, 2 Mackey, 
 285 (1883). 
 
 Iowa. Van Pelt v. Davenport, 42 la. 308 (1875) ; Wicks v. De Witt, 
 54 la. 130 (1880), (6 N. W. Rep. 176). 
 
 Kansas. King v. Kansas City, 58 Kan. 334, 337 (1897), (49 Pac, 
 Rep. 88). 
 
 Maine. Darling v. Bangor, 68 Me. 108 (1878) ; Attwood v. Bangor, 
 83 Me. 582 (1891), (22 Atl. Rep. 466). 
 
 Massachusetts. Child v. Boston, 4 Allen, 41, 51 (1862); Merrifield 
 V. Worcester, 110 Mass. 216 (1872). 
 
 New York. Mills v. Brooklyn, 32 N. Y. 489 (1865) ; Garratt v. 
 Canandaigua, l'35 N. Y. 436 (1892), (32 N. E. Rep. 142). 
 
 Pennsylvania. Fair v. Philadelphia, 88 Pa. St. 309 (1879) ; Collins 
 V. Same, 93 Pa. St. 272 (1880). 
 
 Vermont. Winn v. Rutland, 52 Vt. 481, 492 (1880). 
 
 Wisconsin. Champion v. Crandon, 84 Wis. 405 (1893), (54 N. W. 
 Rep. 775). 
 
 A court of equity will not interfere by injunction vrith a plan of 
 drainage adopted in good faith by the municipal authorities acting 
 within the scope of their authority, where the injury therefrom is 
 doubtful, eventual, or contingent. Morgan v. Binghampton, 102 N. Y. 
 
260 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 may be found among the authorities as to the application 
 of this rule to particular cases, there is great harmony 
 among them as to the rule itself. 
 
 In Indiana this rule has been modified, on the ground 
 that a distinction is to be made, in the matter of devising 
 a plan of drainage, between errors of judgment and errors 
 arising from negligence. While the courts in that state 
 recognize the principle that municipal corporations are 
 not responsible for damages due to the lawful exercise of 
 their discretionary power to plan a system of drainage, 
 they hold that its application is to be confined to such 
 damages as are occasioned by mere errors of judgment 
 made in the course of the exercise, in a reasonably 
 prudent manner, of that power. In brief, then, the 
 Indiana doctrine is that if damages due to the con- 
 struction of drains or sewers result from an omission 
 on its part to exercise due care and skill in devising 
 the plans of them, the corporation is responsible ; ^ but 
 not, if such damages are attributable to a mere error of 
 judgment. 2 
 
 This rule of immunity from liability for the conse- 
 
 500, (1886), (7 N. E. Rep. 424); Americus v. Eldi-idge, 64 Ga. 524 
 (1880). 
 
 Where the damage to the plaintiff's premises was due to a failure 
 to complete a sewer according to a plan adopted, it was held that the 
 failure to carry out the plan was not a mere exercise of discretion 
 which exempted the defendant city from liability, but was such negli- 
 gence as to render it responsible. Hardy v. Brooklyn, 90 N. Y. 435 
 (1882). 
 
 1 Cummins v. Seymour, 79 Ind. 491, 494 (1881); Evansville v. 
 Decker, 84 Ind. 325 (1882) ; Rice v. Evansville, 108 Ind. 7, 9 (1886), 
 (9 N. E. Rep. 139) ; Seymour v. Cummins, 119 Ind. 148, 152 (1889), 
 (21 N. E. Rep. 549). See also Harrigan v. Wilmington, 8 Houst. 
 (Del.) 140 (1888), (12 Atl. Rep. 779), which appears to favor a rule 
 like that prevailing in Indiana. 
 
 2 Roll V. Indianapolis, 52 Ind. 547 (1876); Rozell v. Anderson, 91 
 Ind. 591 (1888). 
 
THE LIABILITY RELATIVE TO DRAINS AND SEWERS. 261 
 
 quences flowing from the exercise of the power to plan a 
 system of drainage rests upon the assumption that such 
 consequences are lawful. If this be not so, if the conse- 
 quences are such as could not be lawfully authorized, then 
 the immunity ceases and liability ensues. Thus, if the 
 exercise of the power to plan a system of drainage results 
 in a direct and physical injury to the property of a pri- 
 vate citizen, which is likely to be continuous, such as the 
 discharge upon his premises of a large body of surface 
 water or sewage,^ or the creation of a nuisance injurious 
 thereto,^ the municipality is liable for all damages occur- 
 ring in consequence of the continuance, after notice, of 
 the original cause, even though the drain or sewer was 
 constructed in the most careful and skilful manner and 
 strictly in accordance with the plans adopted. 
 
 § 155. The Capacity of the Drain or Sewer. — While the 
 rule of immunity from liability for damages due to defects 
 in the plan of drainage adopted is generally extended to 
 all the details, such as the determination of the location, 
 level, capacity, and the like, in some jurisdictions it ap- 
 pears to be considered that municipal corporations do not 
 act in their quasi judicial capacity in determining the 
 dimensions of the drain or sewer. In such jurisdictions 
 the rule is that if a municipality undertakes to provide 
 drains or sewers it must exercise due care and skill to 
 give them sufficient capacity to carry off not only the ordi- 
 nary and usual quantity of water and sewage in ordinary 
 times, but also that which, from experience and knowl- 
 edge of the past, might reasonably be anticipated to 
 
 1 Tate V. St. Paul, 56 Minn. 527 (1894), (58 N. W. Rep. 158); 
 Siefert v. Brooklyn, 101 N. Y. 136 (1886), (4 N. E. Kep. 321). For 
 additional cases see § 159, post. 
 
 2 Smith V. Atlanta, 75 Ga. 110 (1885) ; Edmondson v. Moberly, 98 
 Mo. 523 (1889), (11 S. W. Eep. 990). And see cases cited under 
 § 160, post. 
 
262 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 accumulate.^ If it has made provision to that extent for 
 disposing of water and sewage, it will not be responsible 
 for damages due to excessive and extraordinary storms 
 which by the exercise of reasonable care and prudence 
 could not be foreseen and guarded against. ^ 
 
 § 156. The Liability growing out of the Work of Con- 
 struction. — When the plans for proposed drains or sewers 
 have been finally determined upon by the proper munici- 
 pal officers, judicial duty comes to an end. The work of 
 constructing them in accordance with the plans adopted 
 
 1 California. Spangler v. San Francisco, 84 Cal. 12 (1S90), (23 
 Pac. Rep. 1091). 
 
 Delaware. Harrigan v. Wilmington, 8 Houst. 140 (1888), (12 Atl. 
 Rep. 779). 
 
 Illinois. Dixon v. Baker, 65 111. 518, 521 (1872); Aurora v. Love, 
 93 111. 521 (1879). 
 
 Indiana. Weis v. Madison, 75 Ind. 241, 251 (1881); Evansville 
 V. Decker, 84 Ind. 325, 328 (1882). 
 
 Iowa. Powers v. Council Bluffs, 50 la. 197, 202 (1878) ; German 
 Theological School v. Dubuque, 64 la. 736 (1883), (17 N. W. Rep. 
 153). 
 
 2 California. Los Angeles Cemetery Ass'n v. Los Angeles, 103 
 Cal. 461 (1894), (37 Pac. Rep. 375).' 
 
 Delaioare. Hession v. Wilmington, 27 Atl. Rep. 830 (1893). 
 
 District of Columbia. District of Columbia v. Gray, 1 App. Cas. 
 500 (1893). 
 
 Iowa. German Theological School v. Dubuque, 64 la. 736 (1883), 
 (17 N. W. Rep 153). 
 
 North Carolina. Wright v. Wilmington, 92 N. C. 156 (1885). 
 
 Wisconsin. Allen v. Chippewa Falls, 52 Wis. 430 (1881), (9 N. W. 
 Rep. 284). 
 
 See' also Fairlawn Coal Co. v. Scranton, 148 Pa. St. 231 (1892), (23 
 Atl. Rep. 1069). 
 
 In Denver v. Rhodes, 9 Col. 554 (1886), (13 Pac. Rep. 729), it was 
 held at page 564 that the proposition that no one is liable for damages 
 caused by an unusual flood of rain, because there is no negligence in 
 failing to provide therefor, "if correct in any class of circumstances," 
 did not justify the total obstruction of a street so improved that no 
 damage would have been suffered if proper passages had been left for 
 the escape of the water. 
 
THE LIABILITY EELATIYB TO DRAINS AND SEWEES. 263 
 
 is purely ministerial in character. There is great una- 
 nimity of opinion among the authorities upon this point, 
 as well as upon the resulting rule that municipal corpora- 
 tions are bound to exercise reasonable care, skill and 
 prudence in carrying on the actual work of constructing 
 such improvements, and must respond in damages for any 
 injury done to private property by the negligent or un- 
 skilful manner in which this duty is performed by them.^ 
 
 1 Alabama. Montgomery v. Gilmer, 33 Ala. 116, 130 (1858). 
 
 Colorado. Denver y. Rhodes, 9 Col. 554, 5(53 (1886), (13 Pac. Rep. 
 729). 
 
 Connecticut. Judd v. Hartford, 72 Conn. 350 (1899), (44 Atl. Rep. 
 510). 
 
 Delaware. Hession v. Wilmington, 27 Atl. Rep. 830 (1893). 
 
 Indiana. Logansport v. Wright, 25 Ind. 512 (1865) ; Evansvflle v. 
 Decker, 84 Ind. 3-25, 327 (1882) ; Seymour v. Cummins, 119 Ind. 148 
 (1889), (21 N. E. Rep. 549). 
 
 Iowa. Wallace v. Muscatine, 4 Greene, 373 (1854) ; Ellis o. Iowa 
 City, 29 la. 229 (1870). 
 
 Kansas. King v. Kansas City, 58 Kan. 334 (1897), (49 Pae. Rep. 
 88). 
 
 Maryland. Frostburg v. Hitchins, 70 Md. 56 (1888), (16 Atl. Rep. 
 380). 
 
 Massachusetts. Merrifield v. Worcester, 110 Mass. 216 (1872) ; 
 Stock i: Boston, 149 Mass. 410 (1889), (21 N. E. Rep. 871). 
 
 Missouri. Thurston v. St. Joseph, 51 Mo. 510 (1873). 
 
 New Hampshire. Rowe v. Portsmouth, 56 N. H. 291 (1876). 
 
 New York. Rochester White Lead Co. v. Rochester, 3 N. Y. 463 
 (1850); Barton v. Syracuse, 36 N. Y. 54 (1867) ; Hardy v. Brooklyn, 
 90 N. Y. 435, 440 (1882). 
 
 Texas. Gross v. Lampasas, 74 Tex. 195, 202 (1889), (11 S. W. Rep. 
 1086). 
 
 Vermont. Winn v. Rutland, 52 Vt. 481, 492 (1880). 
 
 United Stales. Johnston v. District of Columbia, 118 U. S. 19, 20 
 (1886), (6 S. Ct. Rep. 92-3). 
 
 TTie New Jersey rule is stated by Chief Justice Beasley in Jersey 
 City V. Kiernan, 50 N. J. L. 246 (1888), at page 251, (13 Atl. Rep, 
 170), as follows: "The conclusion to which this court has finally 
 come is this : That the defendant is not responsible for the conse- 
 quences of a break in the sewer in question, per se, even though it 
 be the result of the carelessness of its own agents, for the public is not 
 
264 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 And the rule of liability is the same where a negligent 
 manner of carrying on the work results in personal injury 
 either to a private individual^ or to an employee engaged 
 upon the work,^ unless other circumstances of the case 
 afford the corporation a good defence. 
 
 § 157. The Liability growing out of a Failure to repair. — 
 The duty of municipal corporations relative to the main- 
 tenance of drains and sewers, when completed, like the 
 
 responsible for such misfeasance of its officers ; but when such break 
 has occurred, occasioning a private nuisance exclusively, and the public 
 authorities have been notified of the accident, we think that then they 
 owe a duty to the individual to put the sewer in a proper condition, 
 and that for the non-performance of such duty that an action will lie." 
 In this case the break was due to faulty construction and failure to 
 repair. 
 
 The measure of damages where the injury to property by the con- 
 struction of drains or sewers is permanent is the diminution in value 
 of the property by the improvement. Maysville w. Stanton, 14 S. W. 
 Eep. 675 (Ky.,"l890) ; Plattsmouth i;. Boeck,49 N. W. Rep. 167 (Neb., 
 1891) ; Vanderslice v. Philadelphia, 103 Pa. St. 102 (1883). 
 
 A lack of means to so construct the system of drainage thatit shall 
 be sufficient to protect all property owners from injury affords no 
 defence, since there is no legal obligation resting upon the corpora- 
 tion to make such an improvement. Frostburg v. Hitchins, 70 Md. 
 56, 68 (1888), (16 Atl. Rep. 380). 
 
 Where the work of constructing a sewer was negligently prolonged 
 and the street unnecessarily obstructed in consequence, to the injury 
 of the plaintiff's business, it was held that he might recover whatever 
 damages he could show to be due to said negligence. Simmer v. St. 
 Paul, 23 Minn. 408 (1877). And see Cummins u. Seymour, 79 Ind. 
 491, 495 (1881). 
 
 1 Hickey v. Waltham, 159 Mass. 460 (1893), (34 N". E. Rep. 681); 
 Detroit v. Corey, 9 Mich. 165 (1861) ; Lloyd v. Mayor, etc. of New 
 York, 5 N. Y. 369 (1851); Turner v. Newburgh, 109 N. Y. 301 
 (1888), (16 N. E. Rep. 344); Dallas v. Webb, 22 Tex. Civ. App. 48 
 (1899), (54 S. W. Rep. 398). Contra : Chope v. Eureka, 78 Gal. 588 
 (1889), (21 Pac. Rep. 364). 
 
 2 Coan V. Marlborough, 164 Mass. 206 (1895), (41 N. E. Rep. 238) 
 Norton V. New Bedford, 166 Mass. 48 (1896), (43 N. E. Rep. 1034) 
 Ostrander v. Lansing, 111 Mich. 693 (1897), (70 N. W. Rep. 332) 
 Donahoe v. Kansas City, 136 Mo. 657 (1896), (38 S. W. Rep. 571). 
 
THE LIABILITY RELATIVE TO DEAINS AND SEWERS. 265 
 
 duty involved in the work of construction, is purely minis- 
 terial in character. Therefore, while not an insurer of 
 their condition,^ unless made so by some statutory provi- 
 sion,2a corporation is bound to use due care and vigilance 
 to keep them clear and in a proper state of repair, and 
 is responsible at common law if damages result from a 
 failure on its part to so do.^ 
 
 1 Fort Wayne!). Coombs, 107 Ind. 75, 88 (1886), (7 N. E. Rep. 743). 
 
 2 See Blood v. Bangor, 66 Me. 154 (1877), where it was held that 
 the defendant city was made an insurer by the provisions of the statute 
 upon which the action was based. 
 
 8 California. Spangler v. San Francisco, 84 Cal. 12 (1890), (23 
 Pac. Rep. 1091). 
 
 Colorado. Denver v. Capelli, 4 Col. 25 (1877) ; Denver v. Rhodes, 
 9 Col. 554 (1886), (18 Pac. Rep. 729). 
 
 Delaware. Hession u. Wilmington, 27 Atl. Rep. 830 (1893); Har- 
 rigan v. Same, 8 Houst. 140 (1888), (12 Atl. Rep. 779). 
 
 Georgia. Savannah v. Spears, 66 Ga. 304 (1881). 
 
 Illinois. Alton v. Hope, 68 111. 167 (1873); Peoria v. Eisler, 62 111. 
 App. 26 (1895). 
 
 Indiana. South Bend v. Paxon, 67 Ind. 228, 235 (1879) ; Valpar 
 raiso v. Cartwright, 8 Ind. App. 429 (1893), (35 N. E. Rep. 1051). 
 
 Iowa. Powers u. Council Bluffs, 50 la. 197 (1878). 
 
 Kansas. King v. Kansas City, 58 Kan. 384 (1897), (49 Pac. Rep. 
 88). 
 
 Kentucky. Louisville t'. O'Malley, 58 S. W. Rep. 287 (1899). 
 
 Massachusetts. Child ». Boston, 4 Allen, 41, 53 (1862); Bates v. 
 Westborough, 151 Mass. 174 (1890), (23 N. E. Rep. 1070); Allen v. 
 Boston, 159 Mass. 324 (1893), (34 N. E. Rep. 519). But see Barry 
 V. Lowell, 8 Allen, 127 (1864). 
 
 Minnesota. Taylor v. Austin, 32 Minn. 247 (1884), (20 N. W. 
 Rep. 157) ; Netzer v. Crookston City, 59 Minn. 244 (1894) (61 N W 
 Rep. 21). 
 
 Missouri. Woods v. Kansas City, 58 Mo. App. 272 (1894). 
 
 New Hampshire. Rowe v. Portsmouth, 56 N. H. 291 (1876). 
 
 New York. Mayor, etc. of New York v. Furze, 3 Hill, 612 (1842); 
 Barton v. Syracuse, 86 N. Y. 54 (1867) ; McCarthy v. Syracuse, 46 
 N. Y. 194 (1871). 
 
 Pennsylvania. Vanderslice d. Philadelphia, 103 Pa. St. 102 (1883). 
 
 Tennessee. Horton v. Nashville, 4 Lea, 39, 49 (1879). 
 
 Texas. Dallas v. Shultz, 27 S. W. Rep. 292 (1894); Parker 
 
266 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 In the application of this rule of liability, it makes no 
 difference by whom the drain or sewer in any particular 
 case was constructed, provided it appears that the munici- 
 pality has assumed and exercised control over it. Hence, 
 even though built by a private individual, the corporation, 
 by adopting it to the use of its public, will become re- 
 sponsible for its proper maintenance to the same extent 
 as though constructed by its own agents.^ 
 
 V. Laredo, 9 Tex. Civ. App. 221, 224 (1894), (28 S. W. Rep. 
 1048). 
 
 Utah. Kiesel v. Ogden City, 8 Utah, 237 (1892), (30 Pac. Kep. 
 758). 
 
 Vermont. Hayues v. Burlington, 38 Vt. 350 (1865) ; Winn v. Rut- 
 land, 52 Vt. 481, 493 (1880). 
 
 Wisconsin. Harper ii. Milwaukee, 80 Wis. 365 (1872). 
 
 United States. Johnston v. District of Columbia, 118 U. S. 19, 20 
 (1886), (6 S. Ct. Rep. 923). 
 
 The duty and liability are the same where the municipality adopts 
 a natural stream as an open sewer : it must exercise ordinary care and 
 diligence to keep the channel clear. Blizzard v. Danville, 175 Pa. St. 
 479 (1896), (34 Atl. Rep. 846) ; Owens v. Lancaster, 182 Pa. St. 257 
 (1897), (37 Atl. Rep. 858). 
 
 Municipal corporations are liable not only for neglecting to clean 
 and repair drains and sewers, but also for cleaning or repairing them 
 in a negligent manner. Kranz v. Baltimore, 64 Md. 491 (1885), (2 Atl. 
 Rep. 908) ; Chalkley v. Richmond, 88 Va. 402 (1891), (14 S. E. Rep. 
 339). 
 
 In Hession v. Wilmington, 27 Atl. Rep. 830 (1893), it was held 
 that a property owner was not entitled to recover damages even if 
 the sewers were obstructed to such an extent that the water could not 
 vent, if it appeared that the injury would have resulted just the same 
 because the fall of rain was so extraordinary that the sewers, even if 
 clear, could not have vented it, so as to prevent the damage. 
 
 The fact that a sewer is built on private property and that the coi-- 
 poration has no right to go thereon to make repairs, affords no defence 
 to an action for damages caused by a failure to repair. Netzer v. 
 Crookston City, 59 Minn. 244, 248 ({894), (61 N. W. Rep. 21). 
 
 1 Emery v. Lowell, 104 Mass. 13 (1870) ; Taylor v. Austin, 32 
 Minn. 247 (1884), (20 N. W. Rep. 157) ; Chalkley v. Richmond, 88 
 Va. 402,409 (1891), (14 S. E. Rep. 339); Schroeder v. Baraboo, 93 
 Wis. 95 (1896), (67 N. W. Rep. 27). 
 
THE LIABILITY RELATIVE TO DRAINS AND SEWERS. 267 
 
 § 158. Notice to the Corporation of the Obstruction or 
 Dilapidation must be shown. — Since the liability growing 
 out of the defective condition of drains and sewers rests 
 entirely upon negligence, a municipal corporation is not 
 responsible for damages due to their obstruction or dilapi- 
 dation unless it has notice of the existence of such defect 
 in time to remedy it before the injury is done.^ This 
 rule, however, must not be interpreted to mean neces- 
 sarily that express notice must be brought home to the 
 proper municipal authorities. As in the case of injuries 
 due to defects in the highway, in the absence of proof of 
 express notice, the burden imposed by this rule may still 
 be sustained by showing facts from which the law will 
 impute notice to the corporation. Thus, if it appears 
 that the obstruction or dilapidation which caused the 
 injury was open to observation and had existed for such a 
 length of time that the corporate officers, by the exercise 
 of reasonable diligence, might have known of the same, 
 notice will be imputed to them.^ And again, since the 
 duty to clean and repair drains and sewers involves 
 the exercise of a reasonable degree of active vigilance 
 in ascertaining their condition from time to time, if the 
 obstruction or dilapidation, though not open to ordinary 
 observation, was a usual result of their use which might 
 have been anticipated and guarded against by making an 
 occasional examination and whatever repairs were found 
 to be necessary, the omission to so do is a neglect of duty 
 
 1 Knostman, etc. Furniture Co. v. Davenport, 99 la. 589, 597 
 (1896), (68 N. W. Rep. 887) ; Pottner v. Minneapolis, 41 Minn. 73 
 (1889), (42 N. W. Rep. 784). 
 
 2 Fort Wayne v. Coombs, 107 Ind. 75, 78 (1886), (7 N. E. 
 Rep. 743) ; Rowe v. Portsmouth, 56 N. H. 291 (1876). See also 
 on the question of notice, Kranz v. Baltimore, 64 Md. 491, 498 
 (1885), (2 Atl. Rep. 908) ; Woods v. Kansas City, 58 Mo. App. 272 
 (1894). 
 
268 LIABILITY OP MUNICIPAL COEPORATIONS FOR TORT. 
 
 which will render the corporation liable without proof of 
 express notice. ^ 
 
 Furthermore, if the existence of the defect that caused 
 the injury was due to the acts of the officers or agents of 
 the municipality, or to the acbs of persons for whose 
 action it was responsible, no notice at all need be shown.^ 
 
 § 159. The Liability groTwing out of the Discharge of 
 Drains and Sevrers — Where it amounts to a Taking of Private 
 Property. — While the power to construct a system of 
 drainage undoubtedly includes the right to find an outlet 
 for its contents, that power cannot make it lawful for a 
 municipal corporation to gather together surface water or 
 sewage into a confined channel and to precipitate it in a 
 body upon the land of a private person, even though the 
 plan of drainage adopted was perfect and the work of 
 construction was carried on with due care and skill. A 
 municipality by such an act exceeds its lawful power, 
 since the direct result of it is an invasion of the rights of 
 the individual which amounts to a taking of his property 
 for public use without compensation. It is thus in effect 
 a violation of the organic law of the state, which no pro- 
 vision of charter or general statute can justify. Hence 
 the rule seems to have become well settled that where the 
 discharge of a drain or sewer is so arranged as necessarily 
 to result in an injury to private property equivalent to the 
 appropriation of some enjoyment of it, to which the owner 
 
 1 McCarthy v. Syracuse, 46 N. Y. 194, 197 (1871) ; Vanderslice v. 
 Philadelphia, 103 Pa. St. 102, 107 (1883). 
 
 The duty of municipal corporations requires them to take notice of 
 the liability of timbers to decay from lapse of time and use, and to 
 take such measures as ordinary care and skill dictate to guard against 
 a sewer becoming unsafe because of the decay of timbers used in its 
 construction. Fort Wayne v. Coombs, 107 Ind. 75, 88 (1886), (7 N. E. 
 Eep. 74.3). 
 
 2 Mms '). Troy, 59 N. Y. 500 (1875) ; Kiesel y. Ogden City, 8 Utah, 
 237 (1892), (30 Pac. Rep. 758). 
 
THE LIABILITY EELATIVE TO DRAINS AND SEWERS. 269 
 
 is entitled, the corporation will be liable at common law.^ 
 And the rule is the same whether the surface water or 
 sewage is discharged directly upon the plaintiff's land, 
 or reaches there by force of gravitation. ^ 
 
 § 160. The LiabiUty growing out of the Discharge of 
 Drains and Sewers — Where it creates a Nuisance. — The 
 power granted to municipal corporations to dispose of 
 sewage is subject to the further limitation that it must 
 not be so exercised as to create a nuisance injurious to 
 
 1 Illinois. Jacksonville v. Lambert, 62 111. 519 (1872). 
 
 Indiana. Evansville v. Decker, 84 Ind. 325 (1882). 
 
 Kansas. King v. Kansas City, 58 Kan. 334 (1897), (49 Pac. 
 Rep. 88). 
 
 Massachusetts. Woodward v. Worcester, 121 Mass. 245 (1876). 
 
 Michigan. Ashley v. Port Huron, 35 Mich. 296 (1877). 
 
 Minnesota. Tate v. St. Paul, 56 Minn. 527 (1894), (58 K. W. 
 Rep. 158). 
 
 New York. Siefert v. Brooklyn, 101 N. Y. 136 (1886), (4 N. E. 
 Rep. 321); Magee v. Brooklyn, 18 N. Y. App. Div. 22 (1897), (45 
 N. Y. Supp. 473) ; Huffmire v. Brooklyn, 22 N. Y. App. Div. 406 
 (1897), (48 N. Y. Supp. 132). 
 
 Vermont. Winn v. Rutland, 52 Vt. 481, 494 (1880). 
 
 Where, by reason of the building of a sewer too near the plaintiff's 
 property, the buildings thereon settled, cracking the walls and doing 
 permanent damage, it was held that the plaintiff might recover by 
 virtue of a constitutional provision that no property shall be taken or 
 damaged for public use without compensation. Reardon v. San Fran- 
 cisco, 68 Cal. 492 (1885), (6 Pac. Rep. 317); Plattsmouth v. Boeck, 49 
 N. W. Rep. 167 (Neb., 1891). 
 
 Upon the principle stated in the text municipal corporations have 
 been held liable at common law for depositing from drains or sewers 
 dirt and gravel in a mill race. Elgin Hydraulic Co. v. Elgin, 74 111. 433 
 (1874). See also Columbus v. Woolen Mills Co., 33 Ind. 435 (1870). 
 And so also for discharging mud and filth into a private dock. Haskell 
 V. New Bedford, 108 Mass. 208, 215 (1871) ; Butchers', etc. Ice Co. 
 V. Philadelphia, 156 Pa. St. 54 (1893), (27 Atl. Rep. 376) ; Clark v. 
 Peckham, 9 R. I. 455 (1870). And again where poisonous sewage 
 was poured on to the plaintiff's oyster bed. Hufimire v. Brooklyn, 22 
 N. Y. App. Div. 406 (1897), (48 N. Y. Supp. 132). 
 
 2 Woodward v. Worcester, 121 Mass. 245 (1876). 
 
270 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 the rights of private citizens, unless, perhaps, that conse- 
 quence is a necessary result of the exercise of such power. ^ 
 Hence the general rule of law is that a municipality can- 
 not deposit from its drains or sewers noxious substances, 
 which render the air offensive and unwholesome, where 
 they will endanger the life or health of private persons 
 and impair the enjoyment of their property, and still be 
 free from liability. Indeed, an action may generally be 
 maintained against a municipal corporation for private 
 injuries occasioned by a nuisance of this kind in any case 
 where, under like circumstances, an action could be main- 
 tained against a private individual. ^ 
 
 S 161. The Abandonment or Discontinuance of Drains or 
 Sewers. — The abandonment or discontinuance of drains 
 
 1 "When the Legislature authorizes a city or town to construct 
 sewers, or to use a natural stream as a sewer, it is not to be assumed 
 that it intends to authorize the city or town so to construct its sewers, or 
 so to use the stream, as to create a nuisance, unless this is the necessary 
 result of the powers granted. On the contrary, if it is practicable to 
 do the work authorized without creating a nuisance, it is to be pre- 
 sumed that the Legislature intended that it should be so done." Chief 
 Justice Morton in Morse v. Worcester, 139 Mass. 389 (1885), at page 
 391, (2 N. E. Rep. 694). 
 
 2 Connecticut. Morgan v- Danbury, 67 Conn. 484 (1896), (35 Atl. 
 Rep. 499). 
 
 Georgia. Hamilton v. Columbus, 52 Ga. 435 (1874) ; Smith v. 
 Atlanta, 75 Ga. 110 (1885). 
 
 Illinois. Jacksonville v. Doan, 145 111. 23 (1893), (33 N. E. Kep. 
 878) ; Bloomington v. Costello, 65 111. App. 407 (1895). 
 
 Massachusetts. Bacon v. Boston, 154 Mass. 100 (1891), (28 N. E. 
 
 Rep. 9). 
 
 Missouri. Edmondson v. Moberly, 98 Mo. 523 (1889), (11 S. W. 
 
 Rep. 990). 
 
 New York. Chapman v. Rochester, 110 N. Y. 273 (1888), (18 
 N. E. Rep. 88) ; Moody v. Saratoga Springs, 17 N. Y. App. Div. 207 
 (1897), (45 N. Y. Supp. 365). 
 
 Rhode Island. Clark v. Peckham, 10 R. I. 35 (1871). 
 
 Wisconsin. Harper v. Milwaukee, 30 Wis. 365 (1870). 
 
 United States. Carmichael v. Texarkana, 94 Fed. Rep. 561 (1899). 
 
THE LIABILITY RELATIVE TO CHAINS AND SEWERS. 271 
 
 or sewers by a municipal corporation, with the intention 
 never to use them again, is simply a second or further 
 exercise of that same power which in the first exercise 
 resulted in the construction of them. It is in fact only a 
 redetermination of the original question of the necessity 
 of the particular drain or sewer. The action is thus 
 essentially of a legislative or quasi judicial character, 
 and as such comes within the general rule of immunity 
 for the consequences of such action. Hence the rule has 
 become established that municipal corporations are not 
 responsible at common law for consequential damages 
 resulting therefrom to a private person. ^ 
 
 It has been intimated that there might be a liability 
 resting upon the corporation in case, as a result of the 
 abandonment or discontinuance, the individual was left 
 in a worse position than if no drain or sewer had ever 
 been constructed.^ But it is difficult to see how, on pi-in- 
 ciple, there can be any liability in such a case unless the 
 result of the action is the creation of a private nuisance 
 or the taking without compensation of some property in- 
 terest belonging to the individual. However that may 
 prove to be, it has been held that there is a liability 
 where a municipal corporation abandons or discontinues 
 a drain or sewer in a negligent manner, in consequence 
 of which a private person suffers an injury.^ 
 
 A case where the injury occurs by reason of the aban- 
 dontnent or discontinuance of a drain or sewer with the 
 
 1 Atchison v. Challiss, 9 Kan. 603, 613 (1872) ; Henderson v. Minne- 
 apolis, 32 Minn. 319 (1884), (20 N. W. Rep. 322); Springfield v. 
 Spense, 39 Oh. St. 665 (1884) ; Carr v. Northern Liberties, 35 Pa. St. 
 324 (1860) ; Waters v. Bay View, 61 Wis. 642 (1884), (21 N. W. Kep. 
 811). 
 
 ^ See Atchison v. Challiss, 9 Kan. 603, 613 (1872); Waters v. Bay 
 View, 61 Wis. 642 (1884), (21 N. W. Rep. 811). 
 
 » Schroeder v. Baraboo, 93 Wis. 95 (1896), (67 N. W, Rep. 27). 
 
272 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 intention never again to use it is, of course, to be distin- 
 guished from one where the damage is due to the failure 
 of the corporation to clean or to repair the drain or 
 sewer. "The first is the exercise of that discretionary, 
 or quasi judicial power, possessed by cities ; the second is 
 the neglect to perform a ministerial duty." While ordi- 
 narily there is no liability in the first case, there is in the 
 second case.^ 
 
 1 See § 157, ante. 
 
 As to the application of the doctrine of contributory negligence to 
 cases where the injury is due to the construction or maintenance of 
 drains or sewers, see Parker v. Laredo, 9 Tex. Civ. App. 221 (1894), 
 (28 S. W. Rep. 1048), where it was held" that a plaintiff who knew of 
 the obstruction of the sewer and yet took no steps to notify the corpo- 
 ration or to prevent the injury was guilty of contributory negligence ; 
 Netzer v. Crookston City, 59 Minn. 244, 251 (1894), (61 N. W. Rep. 
 21), where it was held to be a question for the jury whether the failure 
 of the plaintiff to attach proper valves to the drain was guilty of con- 
 tributory negligence. See also Barry v. Lowell, 8 Allen (Mass.), 127 
 (1864); Simpson v. Keokuk, 34 la. 568 (1872). 
 
THE LIABILITY RELATIVE TO WATERS. 273 
 
 CHAPTER VIII. 
 
 THE LIABILITY RELATIVE TO WATERS. 
 
 Part I. 
 Surface Waters. 
 
 5 162. The State of the Law governing the Subject. — 
 The law relating to the liability of municipal corporations 
 tor injuries to private property caused by surface water is 
 left in an unsatisfactory state by the adjudicated cases. 
 Indeed there is such a want of harmony among them that 
 there appears to be some doubt as to the exact law govern- 
 ing some of the questions relating to the subject. This 
 want of harmony and consequent uncertainty are due not 
 merely to the difficulties inherent in this particular branch 
 of the law, which are considerable, but also to the fact 
 that two radically different doctrines regarding surface 
 waters prevail, some states having adopted what is known 
 as the civil law rule, and others the so-called common law 
 rule. But, while many of the decisions cannot be recon- 
 ciled, certain broad general principles may be pointed 
 out which seem to have become fairly well settled by the 
 weight of judicial authority. 
 
 § 163. The Rule of the Civil Law. — The doctrine of the 
 civil law rule is that, by reason of the natural situation of 
 the land and of the necessity of affording an escape for 
 the surface waters that accumulate thereon, the lower of 
 two adjoining estates is subject to a natural easement or 
 servitude of drainage in favor of the higher estate. The 
 
 18 
 
274 LIABILITY OP MUNICIPAL CORPOEATIONS FOR TORT. 
 
 burden thus imposed -upon the lower or servient estate 
 extends, however, only to such waters as naturally drain 
 upon it from the upper or dominant estate. Hence, while 
 the servient estate is bound to receive all water that nat- 
 urally flows upon it from the dominant estate, it cannot 
 be required to receive in addition such surface water as 
 would, if left to itself, flow in other directions. 
 
 In jurisdictions where this doctrine prevails, it is ap- 
 plied to municipal corporations practically to the same 
 extent as to private persons. Hence in such jurisdictions 
 the rule is that a municipality cannot so grade or other- 
 wise improve its highways as to cause surface water to 
 flow in an increased quantity, or in a different manner, 
 upon the land of a private individual, and escape liability 
 for the damage resulting therefrom.^ 
 
 § 164. The Rule of the Common Law. — According to 
 the rule of the common law there is no such natural ease- 
 ment or servitude of drainage for surface water as the 
 civil law recognizes and enforces. But its doctrine is 
 that such water is to be regarded, not as a natural burden 
 which the proprietor of the servient estate must bear, but 
 
 1 Georgia. Albany v. Sikes, 94 Ga. 30 (1894), (20 S. E. Rep. 257). 
 
 Illinois. Bloomiugton v. Brokaw, 77 111. 194 (1875) ; Keithsburg v. 
 Simpson, 70 111. App. 467 (1896). 
 
 Iowa. Holmes v. Calhoun County, 97 la. 360 (1896), (66 N. W. 
 Rep. 145); Podhaisky v. Cedar Rapids, 106 la. 543 (1898), (76 N. W. 
 Rep. 847) ; Schrope v. Pioneer Township, 82 N. W. Rep. 466 (1900). 
 
 Louisiana. Bowman v. New Orleans, 27 La. An. 501 (1875). 
 
 United States. Arn v. Kansas City, 4 McCrary, 558 (1882), (14 
 Fed. Rep. 236). 
 
 In Iowa are also to be found cases which hold that a corporation 
 is not liable for turning surface water from its highways upon the 
 land of an abutting property owner, if the latter has permitted his 
 land to remain below grade. Freburg v. Davenport, 63 la. 119 (1884), 
 (18 N. W. Rep. 705); Morris v. Council Bluffs, 67 la. 343 (1885), (25 
 N. W. Rep. 274); Gilfeather v. Council Bluffs, 69 la. 310 (1886), (28 
 N. W. Rep. 610). 
 
THE LIABILITY EELATIVE TO WATERS. 275 
 
 rather as a common enemy which every proprietor of an 
 estate may, in the necessary improvement of his land, 
 fight as best he may. Hence each has a right to repel or 
 divert the natural flow of surface water so far as may be 
 required in order to carry out necessary and proper im- 
 provements, without incurring any liability to adjoining 
 property owners for the injuries caused thereby. 
 
 The exemption from liability afforded by this rule is 
 extended to municipal corporations the same as to indi- 
 viduals. They are not answerable at common law, there- 
 fore, if, as a result of grading or otherwise improving 
 their public ways in a proper manner and under a lawful 
 authority,^ surface water is so diverted from its natural 
 course as to flow upon the land of an adjoining proprietor 
 in different places or in somewhat greater quantities, ^ or 
 is so repelled as to prevent it from flowing off from the 
 land of such proprietor in its accustomed channels.^ 
 
 There are numerous cases belonging to this class to be 
 
 1 If a municipal corporation acts without lawful authority in mak- 
 ing the improvement that caused the surface water to accumulate 
 upon the plaintiff's premises, it will be liable for the injury occasioned 
 thereby. Addy v. Janesville, 70 Wis. 401, 406 (1888), (3.5 N. W. 
 Rep. 9.31). 
 
 ^ Connecticut. Byrne v. Farmington, 64 Conn. 367 (1894), (30 Atl. 
 Rep. 138). 
 
 District of Columbia. Herring v. District of Columbia, 3 Mackey, 
 572 (1885). 
 
 Maine. Gardiner u. Camden, 86 Me. 377 (1894), (30 Atl. Rep. 13). 
 
 Massachusetts. Parks v. Newburyport, 10 Gray, 28 (1857) ; Flagg 
 V. Worcester, 13 Gray, 601 (1859). 
 
 Minnesota. Alden v. Minneapolis, 24 Minn. 254 (1877). 
 
 Nebraska. Churchill v. Beethe, 48 Neb. 87 (1896), (66 N". W. 
 Rep. 992). 
 
 Rhode Island. Wakefield v. Newell, 12 R. I. 75 (1878) ; Smith v. 
 Tripp, 13 R. I. 152 (1880). 
 
 Wisconsin. Hoyt v. Hudson, 27 Wis. 656 (1871). 
 
 8 Henderson v. Minneapolis, 32 Minn. 319, 324 (1881), (20 N. W. 
 Rep. 322); FoUmanu v. Mankato, 45 Minn. 457 (1891), (48 N. W. 
 
276 LIABILlTr OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 found in the books in which the result of the decision is 
 the same as that reached under the above rule governing 
 surface waters, but which are based upon an entirely dif- 
 ferent and broader ground. The underlying principle of 
 such cases is the settled and familiar one that if in the 
 proper exercise by a municipal corporation of its power to 
 grade and improve its highways consequential damage re- 
 sults to a private person, such as the collection of surface 
 water upon his premises, it is simply a necessary result of 
 the performance of a legislative or judicial duty and is to 
 be treated as damnum absque injuria, unless expressly de- 
 clared otherwise by charter or statutory provision. ^ 
 
 Kep. 192); Lynch v. Mayor, etc. of New York, 76 N. Y. 60 (1879); 
 Jordan v. Benwood, 42 W. Va. 312 (1896), (26 S. E. Rep. 206) ; 
 Waters v. Bay View, 61 Wis. 642 (1884), (21 N. W. Rep. 811). This 
 appears to be the rule in California also, although the civil law rule 
 prevails in that State. Corcoran v. Benicia, 96 Cal. 1 (1896), (30 Pac. 
 Rep. 798) ; Lampe v. San Francisco, 124 Cal. 546 (1899), (57 Pa. Rep. 
 461, 1001). 
 
 1 Connecticut. Bronson v. Wallingford, 54 Conn. 513 (1887), 
 (9 Atl. Rep. 393). And see Judge v. Meriden, 38 Conn. 90 (1871), 
 as treated in Mootry v. Danbury, 45 Conn. 550, 557 (1878). 
 
 Delaware. Clark v. Wilmington, 5 Harr. 243 (1849). 
 
 Georgia. Roll v. Augusta, 34 Ga. 826 (1866). 
 
 Indiwia. Davis v. Crawfordsville, 119 Ind. 1 (1888), (21 N. E. 
 Rep. 449). 
 
 Maryland. Cumberland v. Willison, 50 Md. 138, 149 (1878). 
 
 Minnesota. Lee v. Minneapolis, 22 Minn. 13 (1875). 
 
 Missouri. Imler v. Springfield, 55 Mo. 119 (1874) ; Foster v. St. 
 Louis, 71 Mo. 157 (1879) ; Stewart v. Clinton, 79 Mo. 603, 612 (1883). 
 
 Neil] Jersey. "Union v. Durkes, 38 N. J. L. 21 (1875) ; Miller v. 
 Mon-istown, 47 N. J. Eq. 62, 64 (1890), (20 Atl. Rep. 61). 
 
 New York. Wilson v. Mayor, etc. of New York, 1 Den. 595 (1845) ; 
 Kavanagh v. Brooklyn, 38 Barb. 232 (1862) ; Watson v. Kingston, 
 114 N. Y. 88 (1889), (21 N. E. Rep. 102). 
 
 Oregon. Bush v. Portland, 19 Oreg. 45 (1890), (23 Pac. Rep. 667). 
 
 Pennsylvania. AUentown v. Kramer, 73 Pa. St. ^06 (1873). 
 
 Vermont. Noble v. St. Albans, 56 Vt. 522 (1884). 
 
 Wisconsin. Heth v. Fond du Lac, 63 Wis. 228 (1885), (23 N. W. 
 Rep. 495). 
 
THE LIABILITY RELATIVE TO WATERS. 277 
 
 § 165. Where the Natural Plow of Surface Water is 
 changed through Negligence. — The exemption from liabil- 
 ity for injuries occasioned by surface waters, which the 
 doctrines of the common law extend to municipal corpo- 
 rations, presupposes that the acts done by them which 
 caused the damage were done in a careful and skilful 
 manner. If the facts of any particular case are such that 
 this supposition cannot be indulged ; if the waters have 
 been caused to accumulate upon the land of a private 
 person through the negligence or unskilfulness of the 
 corporation in making the contemplated improvement, 
 it must answer at common law for the damage so done. 
 And this is the rule upon whichever doctrine of the 
 common law the decision goes. 
 
 Thus, if appeal is made to the common law rule govern- 
 ing surface waters, that is found to be subject to another 
 common law rule which requires each property owner to 
 so use his own as not unnecessarily or negligently to 
 injure that of another. Hence it follows that while a 
 municipality may lawfully do whatever is necessary and 
 proper to improve its highways, yet if there is a failure 
 on its part to use due care and skill in the manner of 
 doing the work or in maintaining it after it is done, and 
 such failure is the proximate cause of the flowing of sur- 
 face water on to the premises of an adjoining proprietor, 
 it is accountable at common law for the damage so done.^ 
 
 And so if immunity from liability is sought under the 
 broader common law principles regarding the consequen- 
 tial damages resulting from a lawful work, that rule also 
 will be found to be subject to the exception, as familiar 
 and as well settled as the rule itself, that, in the actual 
 work of grading, draining, and otherwise improving their 
 
 ' Pye V. Mankato, 36 Minn. 373, 374 (1887), (31 N. W. Rep. 863); 
 Kearney v. Themanson, 48 Neb. 74 (1896), (66 N. W. Rep. 996). 
 
278 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 public ways, municipal corporations are responsible in 
 damages at common law for any injuries to private prop- 
 erty by surface water due to the negligent or unskilful 
 manner in which such work was done or in which the 
 improvement when completed was maintained.^ 
 
 It seems that a similar rule of liability prevails also in 
 those jurisdictions where the civil law doctrine regarding 
 surface waters has been adopted.^ 
 
 § 166. Where Surface Waters are collected and cast in 
 a Body upon Private Property. — Whatever differences of 
 opinion may exist between the courts of the various states 
 regarding the responsibility of municipal corporations for 
 interfering with the natural flow of surface waters in the 
 course of grading, draining, or otherwise improving their 
 highways under a power conferred upon them by charter 
 or general laws, there is substantial agreement among the 
 authorities upon the proposition that they cannot collect 
 such water from a large area by means of artificial chan- 
 nels and precipitate it in a body, with destructive force, 
 upon the land of a private person, and escape liability at 
 
 1 Colorado. Denver v. Rhodes, 9 Col. 554, 564 (1886), (13 Pac. 
 Kep. 729). 
 
 Maryland. Hitohins v. Frostbuvg, 68 Md. 100, 110 (1887), (11 
 Atl. Rep. 826). 
 
 Massachusetts. Emery v. Lowell, 104 Mass. 13 (1870). 
 
 Michigan. Defer v. Detroit, 67 Mich. 346 (1887), (34 N. W. Rep. 
 680) ; Seaman v. Marshall, 116 Mich. 327, (1898), (74 N. W. Rep. 484). 
 
 Missouri. Thurston v. St. Joseph, 51 Mo. 510 (1873). 
 
 New Hampshire. Parker v. Nashua, 59 N. H. 402 (1879). 
 
 Pennsylvania. AUentown v. Kramer, 73 Pa. St. 406 (1873). 
 
 Texas. Comanche v. Zettlemoyer, 40 S. W. Rep. 641 (1897). 
 
 Virginia. Smith v. Alexandria, 33 Gratt. 208 (1880). 
 
 Wisconsin. Gilluly i. Madison, 63 Wis. 518 (1885), (24 N. W. Rep. 
 137). But see Champion v. Crandon, 84 Wis. 405, 412 (1893), (54 
 N. W. Rep. 775). 
 
 2 Eufaula v. Simmons, 86 Ala. 515, 518 (1888), (6 So. Rep. 47); 
 Lehn v. San Francisco, 66 Cal. 76 (1884), (4 Pac. Rep. 965) ; Rosa v. 
 Clinton, 46 la. 606, 609 (1877). 
 
THE LIABILITY RELATIVE TO WATERS. 279 
 
 common law for the damage so done.^ And it does not 
 alter this result that the work was done under ample 
 
 1 Alabama. Troy u. Coleman, 58 Ala, 570 (1877) ; Eufaula i'. Sim- 
 mons, 86 Ala. 515 (1888), (6 So. Rep. 47). 
 
 California. Stanford v. San Francisco, 111 Cal. 198 (1896), (43 
 Pac. Rep. 605). 
 
 Connecticut. Danbury, etc. R. Co. v. Norwalk, 37 Conn. 109 (1870). 
 
 Georgia. Maguire v. Cartersville, 76 Ga. 84 (1885). 
 
 Indiana. Weis u. Madison, 75 Ind. 241 (1881) ; Crawfordsville v. 
 Bond, 96 Ind. 236 (1884) ; Rice v. Evansville, 108 Ind. 7, 12 (1886), 
 (9 N. E. Rep. 139) ; .New Albany v. Lines, 21 Ind. App. 380, 388 
 (1898), (51 N. E. Rep. 346). 
 
 Kansas. King v. Kansas City, 58 Kan. 334, 338 (1897), (49 Pac. 
 Rep. 88). 
 
 Maryland. Hitchius v. Frostburg, 68 Md. 100 (1887), (11 Atl. 
 Rep. 826). 
 
 MassachusetU. Brayton v. Fall River, 113 Mass. 218, 226 (1873); 
 Manning v. Lowell, 130 Mass. 21 (1880). 
 
 Michigan. Pennoyer v. Saginaw, 8 Mich. 534 (1860); Ashley u. 
 Port Huron, 35 Mich. 296 (1877). 
 
 Minnesota. O'Brien.!;. St. Paul, 18 Minn. 176 (1872); Pye v. 
 Mankato, 36 Minn. 373 (1887), (31 N. W. Rep. 863); Tate v. St. Paul, 
 56 Minn. 527 (1894), (58 N. W. Rep. 158). 
 
 Missouri. Rychlicki v. St. Louis, 98 Mo. 497 (1889), (11 S. W. 
 Rep. 1001). 
 
 New Hampshire. Vale Mills t-. Nashua, 63 N. H. 136 (1884). 
 
 New Jersey. Miller v. Morristown, 47 N. J. Eq. 62, 66 (1890), (20 
 Atl. Rep. 61). 
 
 New York. Byrnes v. Cohoes, 67 N. Y. 204 (1876) ; Noonan v. 
 Albany, 79 N. Y. 470 (1880) ; Daggett v. Cohoes, 7 N". Y. Supp. 882 
 (1889) ; Bedell v. Sea Clife, 18 N. Y. App. Div. 261 (1897), (46 N. Y. 
 Supp. 226). 
 
 Ohio. Rhodes v. Cleveland, 10 Oh. 159 (1840). 
 
 Pennsylvania. Elliott v. Oil City, 129 Pa. St. 570 (1889), (18 Atl. 
 Rep. 553); Torrey v. Scranton, 133 Pa. St. 173 (1890), (19 Atl. Rep. 
 351) ; Bohan v. Avoca Borough, 154 Pa. St. 404 (1893), (26 Atl. 
 Rep. 604). 
 
 Rhode Island. Inman v. Tripp, 11 R. I. 520 (1877); King v. 
 Granger, 21 R. I. 93 (1898), (41 Atl. Rep. 1012). 
 
 Tennessee. Burton v. Chattanooga, 7 Lea, 739 (1881). 
 
 Texas. Houston v. Bryan, 2 Tex. Civ. App. 553 (1893), (22 S. W. 
 Rep. 231). 
 
 Vermont. Winn v. Rutland, 52 Vt. 481, 494 (1880) ; Whipple v. 
 Fair Haven, 63 Vt. 221 (1890), (21 Atl. Rep. 533). 
 
 West Virginia. Gillison v. Charleston, 16 W. Va. 282 (1880) ; 
 
280 LIABILITY OP MUNICIPAL COEPORATIONS FOE TORT. 
 
 authority, according to the plans adopted by the proper 
 municipal authorities, and in a careful and skilful man- 
 ner. Nor does it make any difference in the application 
 of this rule of liability whether such body of water is 
 conducted directly to, and is cast upon, the premises of 
 the citizen, or reaches them by being set back.^ In any 
 case the act of precipitating a body of surface water upon 
 private premises is nothing less than a positive invasion 
 of the rights of private property, against which the funda- 
 mental law of the state guarantees protection. 
 
 Part II. 
 
 Watercourses. 
 
 § 167. The Distinction between Surface Waters and 
 Watercourses — Its Importance. — To constitute a water- 
 course, it is essential that there should be a stream of 
 water flowing in a definite channel, with bed and sides or 
 banks, which discharges itself into some other stream or 
 body of water. It is generally conceded, however, that 
 the flow need not be continual : the bed at times may be 
 dry ; but there must be present ordinarily and usually a 
 moving stream of water. ^ 
 
 Jordan w. Benwood, 42 W. Va. 312, 318 (1896), (26 S. E. Rep. 
 266). 
 
 Wisconsin. Pettigrew v. Evansville, 25 Wis. 228 (1870). 
 
 1 Tate V. St. Paul, 56 Minn. 527 (1894), (58 N. W. Rep. 158). 
 
 2 In Weis v. Madison, 75 Ind. 241 (1881), at page 258, Mr. Justice 
 Elliott has given the following definition of a watercourse : " A watei-- 
 course is a stream of water ordinarily flowing in a certain direction, 
 through a defined channel, with bed and banks. It is not necessary 
 that the water should flow continually; the channel may sometimes be 
 dry. There must, however, always be substantial indications of the 
 existence of a stream, which is ordinarily and most frequently a mov- 
 ing body of water." And in Stanchfield v. Newton, 142 Mass. 110, 116 
 (1886), (7 N. E. Rep. 703), this instruction of the trial judge was 
 approved : " To constitute a watercourse, water must usually flow in a 
 
THE LIABILITY RELATIVE TO WATERS. 281 
 
 As the subject is generally treated by the courts, the 
 distinction between watercourses and surface waters is 
 made to turn upon the presence or absence of the essential 
 characteristics of a watercourse, namely, the existence of 
 a defined channel, with bed and banks, in which there is 
 usually a moving body of water : if these characteristics 
 are present, the body of water is commonly treated as a 
 watercourse and is governed by the law applicable to such 
 waters ; if they are absent, the body of water is considered 
 to be surface water and is governed by the law peculiar to 
 such waters. 
 
 As is apparent on examination, the law relating to 
 watercourses differs in many respects from that regarding 
 surface waters, the powers of property owners over the 
 latter commonly being much greater than over the former. 
 Hence in considering the liability of municipal corpora- 
 tions for injuries to private property done in the course of 
 grading, draining, or otherwise improving their highways 
 by an interference with the natural flow of water, it is very 
 important to distinguish between these two kinds of waters. 
 
 § 168. Corporations not liable for Consequential Damages 
 resulting from Improvements made in Watercourses. — The 
 immunity from liability which the rule of the common 
 law extends to municipal corporations for the mere con- 
 sequential damages that result from a public improvement, 
 
 certain direction, and by a regular channel, with banks and sides. It 
 may be dry at times, but it must have a well-defined and substantial 
 existence. To constitute a watercourse, there must be something more 
 than a mere surface drainage over one tract of land on to another, 
 occasioned by unusual freshets or other extraordinary causes. The 
 flowing, through a ditch, of water which has accumulated from rains, 
 or the melting of snow, or the under-drainage of land, would not 
 constitute a natural watercourse." 
 
 " Ravines, through which surface water runs in times when there 
 are heavy rainfalls, are not natural watercourses." Weis v. Madison, 
 75Ind. 241,257(1881). 
 
282 LTABILITT OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 made under lawful authority and with due care and skill, 
 applies also to such improvements as they may make 
 in a watercourse. Thus, where a city made a canal to 
 straighten the channel of a river, doing the work under 
 special authority and without negligence, in consequence 
 of which the premises of a riparian proprietor were so far 
 deprived of the protection which they formerly had that in 
 times of storm the waters were driven back upon his land 
 and injured his buildings, it was held not to be answer- 
 able for the damage so done in the absence of any pro- 
 vision of its charter or of the general statutes expressly 
 creating the liability. At common law such injury must 
 be treated as damnum absque injuria,^ 
 
 § 169. The General Duties and Liabilities relative to 
 "Watercourses. — The duties and liabilities of municipal 
 corporations regarding natural streams, in the absence of 
 a valid legislative authority changing what would other- 
 wise be their legal rights, are practically the same as 
 those of a private corporation or natural person under 
 like circumstances. Thus they have a right to make a 
 proper and reasonable use of a natural stream which flows 
 through their territory, such as to carry off the surface 
 wash from their streets which naturally finds its way into 
 the stream, even though the result is that increased 
 amounts of soil are carried into, and obstruct, the chan- 
 nel, causing the water at times to set back upon the land 
 of a private individual.'' But if they adopt the stream as 
 an open sewer, it becomes their duty to use due care to 
 keep the channel clear ; and they are bound to respond in 
 damages to a person whose land is flooded by reason of 
 their failure to perform such duty.^ 
 
 1 Alexander v. Milwaukee, 16 Wis. 247 (1862). 
 
 = Wheeler v. Worcester, 10 Allen (Mass.), 591, 602 (186.5). 
 
 8 Blizzard v. Danville, 175 Pa. St. 479 (1896), (.34 Atl. Rep. 846). 
 
THE LIABILITY RELATIVE TO WATERS. 283 
 
 A municipality has no right to stop up the channel of a 
 watercourse by an embankment made in the course of 
 grading a street under its general power to grade and 
 improve its highways, in consequence of which the waters 
 are caused to set back upon the land of a private person, 
 without being answerable at common law.^ But to render 
 it liable in such a case, the injury must, of course, be 
 directly attributable to its own act or neglect; it is not 
 responsible for the consequences of the acts of a mere 
 wrong-doer.^ 
 
 If the corporation has acquired a valid right to obstruct 
 the waters of a natural stream, it must exercise due care 
 and skill in constructing,^ and as well in maintaining* 
 the dam, so that no unnecessary damage shall be done 
 to the property of riparian proprietors. This means that 
 it must make provision, with reference to the strength 
 and solidity of the structure, not alone for the ordinary 
 and usual flow of the water, but also for such extraordi- 
 nary floods as may reasonably be expected occasionally to 
 occur. ^ 
 
 And so a corporation which is itself a riparian pro- 
 prietor is not bound to erect an embankment or levee in 
 
 1 Connie v. San Francisco, 67 Cal. 45 (1885), (7 Pao. Kep. 41); 
 Rose V. St. Charles, 49 Mo. 509 (1872). 
 
 2 Hoagland v. Sacramento, 52 Cal. 142 (1877) ; Peck v. Ellsworth, 
 36 Me. 393 (1853) ; Haynes v. Burlington, 38 Vt 350, 363 (1865). 
 
 « Mayor, etc. of New York v. Bailey, 2 Den. (N. Y.) 433 (1845). 
 In this case, which was an action for damages caused by the giving 
 away of a dam because of its faulty construction, the court says, at 
 page 440 : " The degree of care and foresight which it is necessary to 
 use, in cases of this description, must always be in proportion to the 
 nature and magnitude of the injury that will be likely to result from 
 the occurrence which is to be anticipated and guarded against." 
 
 * Baltimore v. Merryman, 86 Md. 584 (1898), (39 Atl. Rep. 
 98). 
 
 = Mayor, etc. of New York v. Bailey, 2 Den. (N. Y.) 433 
 (1845). 
 
284 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 order to protect the premises of a private individual from 
 injury by the overflow of the waters of the stream, in the 
 absence of a statute creating such a duty ; and hence, if 
 it has voluntai'ily erected improvements of that kind, it is 
 not responsible for any damage that may be occasioned by 
 its subsequently causing or permitting the destruction of 
 them.^ 
 
 § 170. The Obstruction of a 'Watercourse by Bridges or 
 Culverts. — Under the general power, commonly conferred 
 upon municipal corporations by charter or general laws, 
 to lay out, grade, and improve streets and highways within 
 the limits of their territory, they imdoubtedly have the 
 right, where they deem it necessary, to construct public 
 ways over natural streams. But it by no means follows 
 from this that they have also the right to close up the 
 channel and so to obstruct the natural flow of the water; 
 on the contrary they are bound in such cases to construct 
 proper and sufficient culverts or passageways for the free 
 flow of the water. 
 
 In determining the expediency of laying out a highway 
 over a watercourse and in establishing the grade of such 
 highway, a municipal corporation acts in its legislative or 
 quasi judicial capacity, and hence is not ordinarily respon- 
 sible for any injuries that may ensue therefrom to private 
 individuals. But at this point judicial duty ends. The 
 fixing of the size and capacity of the culvert or water-ways 
 by which the waters of the stream shall pass under the 
 embankment or bridge, as well as the actual work of build- 
 ing the necessary structure, is purely ministerial in char- 
 acter, and must consequently be done with proper care and 
 skill in order that liability may be escaped. The corpora- 
 tion has no discretion as to such matters. The rule seems 
 to have become well settled, therefore, that if, by reason 
 1 Collins V. Macon, 69 Ga. 542 (1882). 
 
THE LIABILITY RELATIVE TO WATERS. 285 
 
 of the insufficient capacity of a culvert,^ or of the passage- 
 ways for water under a bridge,^ the free flow of a natural 
 stream is so interfered with and obstructed as to cause 
 the waters to flow back upon the land of a private per- 
 son, the municipality will be liable at common law for the 
 resulting injury, unless it appears that such insufficient 
 capacity to carry off the water was due to other causes 
 than a failure to exercise due care and skill in determining 
 their size.^ 
 
 The rule of liability is the same where the backwater is 
 caused by the negligence of the corporation in the work of 
 constructing or in properly maintaining culverts or other 
 passageways for the waters of a natural stream.^ 
 
 1 Arkansas. Helena v. Thompson, 29 Ark. 569 (1874). 
 
 Indiana. Ross v. Madison, 1 Ind. 281 (1848). 
 
 Kansas. Kansas City v. Slangstrom, 53 Kan. 431 (1894), (36 Pac. 
 Rep. 706). 
 
 Missouri. Young v. Kansas City, 27 Mo. App. 101 (1887). 
 
 New Hampshire. Gilman v. Laconia, 55 N. H. 130 (1875). 
 
 Vermont. Haynes v. Burlington, 38 Vt. 350, 360 (1865). 
 
 Wisconsin. Spelman v. Portage, 41 Wis. 144 (1876). 
 
 '^ Mootry v. Danbury, 45 Conn. 550 (1878) ; Stone v. Augusta, 46 
 Me. 127 (1858) ; Perry v. Wercester, 6 Gray (Mass.), 544 (1856) ; 
 Sprague v. Worcester, 13 Gray (Mass.) 193 (1859) ; Wheeler v. 
 Worcester, 10 Allen (Mass.), 591, 604 (1865). 
 
 8 M'Clureu. Red Wing, 28 Minn. 186, 195 (1881), (9 N. W. Rep. 
 767). 
 
 The exercise of due care and skill in fixing the dimensions of a 
 culvert or the passageways under a bridge requires that such capacity 
 shall be given to them that the free flow of the water of the stream 
 in its high and low annual stages, open or frozen, or carrying of£ 
 floating ice, shall not. be obstructed. Perry v. Worcester, 6 Gray 
 (Mass.), 544 (1856); Sprague v. Worcester, 13 Gray (Mass.), 193 
 (1S59). 
 
 * Haynes v. Burlington, 38 Vt. 350 (1867). In this case it was 
 held, at page 362, that it was as much the duty of a corporation to 
 keep and maintain a sufiicient passageway for a natural stream as to 
 provide for it when constructing the way. Hence if a culvert becomes 
 obstructed, and the municipal authorities neglect, after reasonable 
 
286 LIABILITY OP MUNICIPAL COEPOEATIONS FOE TOET. 
 
 § 171. The Diversion of a Watercourse by changing its 
 Channel. — If, in making a public improvement under its 
 general power, it becomes necessary, in the judgment of a 
 municipal corporation, to divert the waters of a natural 
 stream so as to cause them to flow where they did not, and 
 would not, flow by nature, such corporation is bound to 
 provide an adequate and proper channel to carry off the 
 water without injury to private individuals. This obliga- 
 tion is not discretionary, but ministerial. Hence if, by 
 reason of the omission of the corporate authorities to ex- 
 ercise reasonable care, skill and judgment, the artificial 
 channel is not given sufficient width and depth to carry off 
 the waters diverted into it, in high as well as in low water 
 seasons, in consequence of which it sets back upon the 
 premises of a private person, the municipality will be 
 answerable at common law for the injury that ensues.^ 
 
 notice, to remove the difficulty, the municipality will be liable for 
 the resulting damage. 
 
 When a municipality and a third person, by their concurrent 
 wrongdoing, cause the water of a natural stream to set back, they 
 are jointly and severally liable, and hence the person injured thereby 
 may at his option bring suit against one or both of them. Kansas 
 City V. Slangstrom, 53 Kan. 431 (1894), (36 Pac. Rep. 706) ; Wheeler 
 V. Worcester, 10 Allen (Mass.), 591, 600 (1865). 
 
 In Sprague v. Worcester, 13 Gray (Mass.), 193, 197 (1859), Chief 
 Justice Shaw says : " All the defendants were bound to do was to 
 build a bridge with a waterway reasonably sufficient to carry off the 
 water, in its ordinary and usual condition, at all seasons of the year." 
 And it was held in the same case that the defendant city could not be 
 required to build a bridge that would subject it to unreasonable 
 expense. 
 
 1 Willson V. Boise City, 55 Pac. Rep. 887 (Idaho, 1889) ; M'Clure 
 V. Red Wing, 28 Minn. 186 (1881), (9 N. W. Rep. 767) ; Barns v. 
 Hannibal, 71 Mo. 499 (1880) ; Barden v. Portage, 79 Wis. 126 (1891), 
 (48 N. W. Rep. 210). 
 
 In M'Clure v. Red Wing, 28 Minn. 186, 195 (1881), (9 N. W. Rep. 
 767), the court says that municipal corporations were not required to 
 anticipate extraordinary and unusual storms which would not be ex- 
 pected to occur in view of the past history of the country. And in 
 
THE LIABILITY RELATITE TO WATERS. 287 
 
 § 172. The Pollution of a Watercourse by discharging 
 Sewage therein. — The general power, commouly conferred 
 upon municipal corporations, to construct and maintain 
 drains and sewers, although necessarily including the 
 right to find a place to discharge the contents of them, by 
 no means carries with it the right to so pollute the waters 
 of a natural stream as to create a nuisance. While the 
 lower riparian proprietors cannot insist that the waters of 
 such a stream shall come to them in a naturally pure 
 state; while they must submit without compensation to 
 the natural wash and drainage coming from towns and 
 cities along its banks, they can object to such an increased 
 and unreasonable corruption of the water as shall interfere 
 with their natural rights. Hence if a municipality, in 
 the absence of a legal right to so do,^ discharges its sewage 
 into a watercourse polluting its waters to such an extent 
 as to create a private nuisance, any lower riparian pro- 
 prietor injured thereby may recover damages in an action 
 at common law. ^ And the right of such lower proprietor 
 
 Diamond Match Co. v. New Haven, 55 Conn. 510 (1888), (13 Atl. 
 Rep. 409), the defendant city -was held not liable for the set-back of 
 the waters of a stream which it had narrowed and straightened, where 
 same was caused by an extraordinary flood. 
 
 A lower riparian proprietor can maintain an action at common law 
 to recover damages for the diversion of the waters of a private stream, 
 from a corporation which is authorized to supply its inhabitants with 
 water, but which has not acquu-ed the right to the waters of such 
 stream by the exercise of its right of eminent domain. Irving's Ex- 
 ecutors V. Borough of Media, 194 Pa. St. 648 (1900), (45 Atl. Rep. 
 482). 
 
 ' The right to corrupt the waters of a natural stream may, it 
 seems, be acquired by a municipal corporation by grant or prescrip- 
 tion, Dwight V. Hayes, 150 111. 273, 281 (1894), (37 N. E. Rep. 218) ; 
 or by valid legislative authority, Butler v. Worcester, 112 Mass. 541 
 (1873). 
 
 » Bloomington v. Costello, 65 lU. App. 407 (1895) ; Columbus 
 V. Hydraulic Woolen Mills Co., 33 Ind. 435 (1870) ; Merrifield v. 
 Worcester, 110 Mass. 216 (1872) ; Joplin Consolidated, etc. Co. v. 
 
288 LIABILITY OF MUNICIPAL COEPORATIONS FOR TOBT. 
 
 to maintain a civil action is the same if the pollution of 
 the water is carried to such an extent as to create a public 
 nuisance, provided he has suffered some particular loss or 
 damage beyond that received by him in common with all 
 others affected thereby.^ 
 
 If a municipality takes a natural watercourse as an 
 outlet for its sewage, under a valid authority conferred upon 
 it by the legislature in a statute in which provision is 
 made for the assessment of damages to parties whose estates 
 are injured thereby, it will not be liable in a suit at com- 
 mon law to a lower riparian proprietor for damages which 
 are a necessary result of a proper and careful exercise of 
 the power delegated ; the sole right of an owner of a lower 
 estate to recover compensation for such damages is under 
 the provisions of such statute.^ 
 
 Joplin, 124 Mo. 129 (1894), (27 S. W. Rep. 406); Smith v. Sedalia, 
 152 Mo. 283 (1899), (53 S. W. Rep. 907) ; Stoddard u. 'Saratoga 
 Springs, 4 N. Y. Supp. 745(1889); Butler v. Edgewater, 6 N. Y. 
 Supp. 174 (1889). 
 
 In Richmond v. Test, 18 Ind. App.482 (1897), (48 N. E. Kep, 610), 
 the court held that a municipal corporation which had constructed a 
 system of drainage upon the best modern plans, so as to discharge, as 
 the necessity of the case required, into a natural watercourse which 
 was the natural drainage of the land upon which the defendant city 
 was bnilt, was not liable to a lower proprietor by reason of the pollu- 
 tion of the water by the sewage, there being no lack of due care or 
 skill in doing or maintaining the work. The improvement was lawful 
 in itself, and located where public necessity required. 
 
 In a very late New York case it was held that a county was not 
 liable for the pollution of the waters of a natural stream by discharg- 
 ing into it the sewage of a penitentiary and almshouse, on the ground 
 that in the management of such an institution the cou]ity authorities 
 were engaged in the performance of a public, governmental duty_ 
 Lefrois v. Monroe County, 162 N. Y. 583 (1900), (57 N. E. Rep. 
 185). 
 
 1 Nolan V. New Britain, 69 Conn. 668 (1897), (38 Atl. Rep. 703). 
 
 '^ Washburn & Moen Manuf. Co. v. Worcester, 116 Mass. 458 
 (1875). In this case, at page 461, Chief Justice Gray adds : " But if 
 
THE LIABILITY EELATIVE TO WATERS. 289 
 
 by an excess of the powers granted, or negligence in the mode of 
 carrying out the system legally adopted, or in omitting to take due 
 precautions to guard against consequences of its operation, a nuisance 
 is created, the city may be liable to indictment in behaK of the public, 
 or to suit by individuals suffering special damage." Citing Haskell 
 V. New Bedford, 108 Mass. 208 (1871); Merrifield v. Worcester, 110 
 Mass. 216 (1872); Brayton v. Fall Kiver, 113 Mass. 218 (1873). 
 
 19 
 
290 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 CHAPTER IX. 
 
 THE LIABILITY FOR PRIVATE PROPERTY INJURED OR 
 DESTROYED. 
 
 Part I. 
 
 By Mobs or Riotous Assemblages of People. 
 
 § 173. No Liability at Common Law. — To secure the 
 peaceful enjoyment of property and to protect it from 
 wrongful and violent acts, is a function of government. 
 The duty to exercise that function is a duty which the 
 -state owes to all its citizens, and which, to secure its 
 better discharge, the state commonly delegates, with the 
 necessary powers, to municipal corporations. In so far, 
 then, as the latter take action in regard to this duty, 
 whether such action be of a negative character, as an 
 entire omission to take proper steps to protect private 
 property, or consists of the taking of such steps in a neg- 
 ligent and improper manner, they act as the representa- 
 tives of the state, and as such are entitled to, and are 
 afforded, the same exemption from liability that, from 
 considerations of policy, government itself enjoys. At 
 common law, therefore, municipal corporations are not 
 subjected to any responsibility for the safety of the private 
 property within their territorial limits,* even though ample 
 
 1 Prather v. Lexington, 13 B. Mon. (Ky.) 559 (1852); Ward v. 
 LouisviUe, 16 B. Mon. (Ky.) 184 (1855); Fauvia v. New Orleans, 20 
 La. An. 410 (1868), semUe ; Baltimore v. Poultney, 25 Md. 107 (1866) ; 
 Western College of Medicine t>. Cleveland, 12 Oh. St. 375 (1881) ; 
 
PRIVATE PROPERTY INJURED OR DESTROYED. 291 
 
 power to regulate the police and to prevent disorderly 
 assemblages is expressly conferred upon them.^ And it 
 makes no difference in this rule of immunity that the 
 corporate authorities had notice of the intention of the 
 mob to destroy the property in question in time to have 
 saved it by a proper use of the means at their command.^ 
 
 § 174. The Statutory Liability — Its Theory and Nature. 
 — In a number of states statutes have been enacted impos- 
 ing upon municipal corporations in express terms the 
 obligation to provide compensation for property injured 
 or destroyed by mobs or riotous assemblages of people, and 
 each statutes have invariably been held to be constitu- 
 tional.^ 
 
 The underlying principle of all such legislation, which 
 is of ancient origin,* is that every political subdivision of 
 
 Allegheny County v. Gibson, 90 Pa. St. 397, 404 (1S79) ; Hart v. 
 Bridgeport, 13 Blatch. (U. S.) 289 (1876). 
 
 1 Western College of Medicine v. Cleveland, 12 Oh. St. 375, 379 
 (1861). 
 
 2 Ward V. Louisville, 16 B. Mon. (Ky.) 184 (1855). 
 
 8 Luke V. Brooklyn, 43 Barb. (JST. Y.) 54, 57 (1864) ; Darlington v. 
 Mayor, etc. of New York, 31 N. Y. 164 (1865); Orr v. Brooklyn, 36 
 N. Y. 661, 667 (1867) ; In re Pennsylvania Hall, 5 Pa. St. 204 (1847) ; 
 Allegheny County v. Gibson, 90 Pa. St. 397, 405 (1879); and see 
 Hagerstown v. Sehner, 37 Md. 180 (1872). 
 
 * The principle of legislation of this character is derived from Eng- 
 land. "As early as 1285, the Parliament of England, by Statute of 
 Winton, or Winchester, 1 Stat. 13 Edw. 1, p. 2, ch. 3 (see 1 Hawk. 
 P. C, ch. 68, sect. 11), provided a remedy against the hundred, county, 
 etc., in which a robbery should take place, for the damages caused 
 thereby, to be recovered by the party robbed in an action against any 
 one or more of the inhabitants. This statute was re-enacted by 28 
 Edw. 3, ch. 2. Subsequently the Statute 27 Eliz., ch. 13, sect. 2, pro- 
 vided for the assessment of the damages against all the inhabitants of 
 the hundred after a recovery against one or more. Next we have 
 the famous Kiot Act of 1 George 1, oh. 5, sects. 1-7, which was passed 
 by reason of the tumult attendant upon the accession of that king to 
 the throne, and which made it a felony, without benefit of clergy, for 
 any persons unlawfully to assemble and demolish any church or dwell- 
 
292 LIABILITY OP MUNICIPAL CORPORATIONS FOB TORT. 
 
 the state, being clothed with sovereign power so far as is 
 necessary for the preservation of private property, should 
 be made responsible for the proper exercise of that power; 
 and that this end could be best secured by giving each 
 individual member of the community a direct and pecuniary 
 interest therein, which should so stimulate the vigilance of 
 each as to lead to more effective action toward the sup- 
 pression and prevention of riotous assemblages.^ 
 
 As is apparent from a consideration of the theory upon 
 which such laws are based, they are both remedial and 
 punitive in character. They are remedial in that they 
 provide for compensation to the person whose property has 
 been injured or destroyed ; they are punitive in that they 
 throw the burden of that compensation upon the corpora- 
 tion within whose territory the injury or destruction took 
 place.^ 
 
 The right to reimbursement for property injured or 
 
 ing-house. The sixth section of the same act provided that in case such 
 church or dwelling-house should be destroyed, the inhabitants of the 
 hundred in which it was situated should be liable for its value. This 
 was followed by the Act of George 2, ch. 10, sect. 1, and the laws upon 
 this subject were consolidated, in 1827, by 7 and 8 George 4, ch. 31." 
 Mr. Justice Paxson, in Allegheny County v. Gibson, 90 Pa. St. 397 
 (1879), at page 405. 
 
 > See Williams v. STew Orleans, 23 La. An. 507 (1871) ; Allegheny 
 County V. Gibson, 90 Pa. St. 397, 418 (1879). In the Louisiana case 
 the court says, at page 508 : " When the importance of social order 
 and the security of person and property resulting from it are impressed 
 upon the public mind by the strong influence of pecuniary responsi- 
 bility, a sharper vigilance is excited and a more efficient action aroused 
 in regard to the prevention and suppression of riotous assemblages, 
 by which, in large cities especially, property is so often damaged and 
 destroyed." 
 
 2 Underbill v. Manchester, 45 N. H. 214, 221 (1864) ; Allegheny 
 County V. Gib.son, 90 Pa. St. 397, 418 (1879). " The end to be accom- 
 plished is not merely compensation for loss," say the court in the New 
 Hampshire case, " but prevention of loss, with compulsory compensa- 
 tion as the incentive means." Page 221. 
 
PRITATB PEOPEKTY INJURED OR DESTROYED. 293 
 
 destroyed by a mob is purely a creation of the legislature, 
 and is not founded upon contract. ^ Hence an injured per- 
 son must bring his case within the terms of the statute of 
 which he wishes to avail himself,^ and must comply with 
 any conditions which the legislature has seen fit to impose.^ 
 § 175. The Property within the Protection of such Stat- 
 utes. — The term "property " as used in statutes which im- 
 pose a liability upon municipal corporations for property 
 injured or destroyed by a mob or riotous assemblage, com- 
 monly includes any property, either real or personal, which 
 happens to be, at the time when the damage is done, within 
 the territorial limits of the corporation sought to be charged 
 
 1 Louisiana v. New Orleans, 109 U. S. 285 (1883), (3 S. Ct. Rep. 
 211). In tliis case, Mr. Justice Bradley, concurring, says: "I concur 
 in the judgment in this case, on the special ground that remedies 
 against municipal bodies for damages caused by mobs, or other vio- 
 lators of law uncounected with the municipal government, are purely 
 matters of legislative policy, depending on positive law, which may 
 at any time be repealed or modified, either before or after the damage 
 has occurred, and the repeal of which causes the remedy to cease. In 
 giving or withholding remedies of this kind, it is simply a question 
 whether the public shall, or shall not, indemnify those who sustain 
 losses from the unlawful acts or combinations of individuals; and 
 whether it shall, or shall not, do so, is a matter of legislative discretion; 
 just as it is whether the public shall, or shall not, indemnify those who 
 suffer losses at the hands of a public enemy, or from intestine com- 
 motions or rebellion." 
 
 In Clear Lake, etc. Co. v. Lake County, 45 Cal. 90 (1872), it was 
 held that such a statute created a new right and provided a new I'em- 
 edy therefor, which was complete in itself, and that therefore it was 
 not necessary that a claim arising under it should be presented to the 
 Board of Supervisors for allowance before bringing an action upon it, 
 as was required by the terms of another statute in the case of claims 
 against counties. 
 
 2 Fauvia v. New Orleans, 20 La. An. 410 (1868). 
 
 ' Hill u. Rensselaer County, 119 N. Y. 344 (1890), (23 N. E. Rep. 
 921). In this case it was held that a provision of the statute limiting 
 the time within which the action should be commenced must be 
 strictly complied with in order that the suit might be maintained. 
 
294 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 with liability. Thus goods in the course of transportation 
 when the damage was done come within such statutes, as 
 well as any other property. ^ 
 
 The question whether the owner of the property injured 
 or destroyed by a mob was or was not a resident of the 
 defendant corporation, does not in the least affect its lia- 
 bility. The property of non-residents comes within the 
 terms of such statutes to the same extent as that of 
 residents.^ Nor is it material whether the property is 
 actually destroyed on the premises where it \?as situated 
 when the riot took place, or is carried away by the rioters. 
 Property carried off by them is held to be destroyed, so 
 far as its owner is concerned, as effectually as though ren- 
 dered valueless by the acts of the mob.^ 
 
 Although the property injured or destroyed may consti- 
 tute a nuisance either in itself or by reason of the use to 
 which it was put by its owner, that fact does not afford 
 any defence to an action under such a statute. Even such 
 property is entitled to the protection of the law, and a 
 mob has no right to destroy it.* 
 
 § 176. The Assemblage by -which the Property is injured 
 or destroyed. — The statutory liability imposed upon 
 municipal corporations is for property injured or destroyed 
 by a mob. Hence it is essential to a recovery in any par- 
 
 1 Allegheny County v. Gibson, 90 Pa. St. 397, 421 (1879). 
 
 2 Allegheny County v. Gibson, 90 Pa. St. 397, 420 (1879). 
 
 8 Sarles ,.. Mayor, etc. of New York, 47 Barb. (N. Y.) 447 (1866); 
 Solomon u. Kingston, 24 Hun (N. Y.), t562 (1881). 
 
 * Brightman v. Bristol, 65 Me. 426 (1876) ; Ely v. Niagara County, 
 36 N. Y. 297 (1867) ; Duffy v. Baltimore, Taney C. C. (D. S.) 200 
 (1852). 
 
 Where the plaintiff's property was not directly fired by the mob, 
 but fire was communicated to it from a neighboring building which 
 the mob had set on fire, it was held that property so destroyed came 
 ■within the statute. Lavery v. Philadelphia County, 2 Pa. St. 231 
 (1845). 
 
PRIVATE PROPEETY INJURED OR DESTROYED. 295 
 
 ticular case to show that the injury or destruction was the 
 work of a number of people assembled for unlawful pur- 
 poses; if it appears that the assemblage by which the 
 damage was done was not in fact of such a character, then 
 no liability arises against the corporation within whose 
 territory the loss happened. ^ 
 
 But if the assemblage by which the damage is done is 
 a mob, then it makes no difference that all the rioters were 
 not citizens of the defendant corporation ; ^ nor that the 
 original purpose for which the crowd come together was 
 lawful, if it subsequently engaged in unlawful conduct.^ 
 
 § 177. The Preventability of the Injury or Destruction 
 of the Property. — The liability fastened by statute upon 
 municipal corporations for the injury or destruction of 
 private property by mobs or unlawful assemblages is in 
 one aspect, as already pointed out, of a penal nature. It 
 is commonly imposed irrespective of any negligence on 
 the part of the corporations, and hence, unless expressly 
 so provided in the statute,* nothing hinges upon the ques- 
 tion whether or not the loss or damage could or ought to 
 
 1 Fauvia v. New Orleans, 20 La. An. 410 (1868) ; Street v. New 
 Orleans, 32 La. An. 577 (1880) ; Duryea v. Mayor, etc. of New York, 
 10 Daly (N. Y.), 300 (1882) ; Duffy v. Baltimore, Taney C. C. (U. S.) 
 200 (1852). And see Baltimore v. Poultney, 25 Md. 107 (1866). 
 
 Where it appeared that the damage was done by a gathering of 
 boys who had no intention to resist the public authorities, and who 
 dispersed on sight of a single police officer, it was held that the plain- 
 tiff's property was not destroyed by a mob within the meaning of the 
 statute. Duryea v. Mayor, etc. of New York, 10 Daly (N. Y.), 300 
 (1882). 
 
 2 Atchison v. Twine, 9 Kan. 350 (1872) ; Chadbourne v. Newcastle, 
 48 N. H. 196 (1868); Palmer v. Concord, 48 N. H. 211, 218 (1868). 
 
 1 Solomon v. Kingston, 24 Hun (N. Y.), 562, 563 (1881). 
 
 ^ The Maryland statute, it seems, makes the liability turn upon the 
 neglect of the corporate authorities to exercise the powers given them 
 for the suppression of mobs. Hagerstown v. Sehner, 37 Md. 180, 195 
 (1872). 
 
296 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 have been prevented. However harsh it may seem, it is 
 the rule, in the absence of an express provision changing 
 it, that no defence to an action under such a statute is 
 afforded by the fact that the defendant corporation could 
 not prevent the injury to, or the destruction of, the plain- 
 tiff's property.^ 
 
 § 178. Notice of the Impending Injury or Destruction of 
 Property. — A provision is usually made a part of those 
 statutes which create a liability for the loss or damage occa- 
 sioned by the acts of unlawful assemblages, that no person 
 shall be entitled to indemnity who, having knowledge of the 
 intention of a mob to injure or destroy his property in time 
 to notify specified ofificials of the corporation before the 
 mob acts, omits to give such notice. The primary purpose 
 of a provision of this character is not to limit the liabiltiy 
 to cases where notice has been given, but, in furtherance 
 of that general policy upon which such legislation is 
 framed, to furnish to the proper corporate officers informa- 
 tion of the impending danger in such time that they may 
 take whatever steps are necessary in order to disperse the 
 mob and protect the property. Accordingly it has been 
 held that if a person knows of the danger to his property 
 and has an opportunity to notify the proper corporate 
 authorities, his omission to so do is a bar to a recovery 
 under such a statute.^ But if he has no knowledge of the 
 
 1 Atchison v. Twine, 9 Kan. 350 (1872) ; Chadbourne v. Newcastle, 
 48 N. H. 196 (1868) ; Palmer v. Concord, 48 N. H. 211, 217 (1868) ; 
 Allegheny County v. Gibson, 90 Pa. St. 397, 417 (1879). 
 
 Where it appeared that the authorities of the defendant city did 
 not have the management of the police force, but that the same was 
 vested in a Board of Metropolitan Police, it was held that this fact 
 did not release the city from liability under the statute for property 
 destroyed by a mob. Williams v. New Orleans, 23 La. An. 507 (1871). 
 See also Hagerstown v. Deohert, 32 Md. 369, 385 (1869). 
 
 2 Wing Chung v. Los Angeles, 47 Cal. 531 (1874). 
 
 The fact that threats and complaints were communicated to the 
 
PRIVATE PEOPEETY INJURED OR DESTROYED. 297 
 
 intention of the mob and so could not notify the proper 
 corporate officers,^ or if, having knowledge of the impend- 
 ing danger, he has no opportunity to notify such officers 
 before the damage is done,^ the failure to give any notice 
 in accordance with such a provision of the statute will not 
 prevent him from maintaining an action to recover com- 
 pensation for his loss. And so, if the proper corporate 
 authorities have been informed from other sources of a 
 threatened outbreak of mob violence, an omission of a 
 person to give them notice will afford the corporation no 
 defence.^ 
 
 § 179. The Effect of the Plaintiff's Conduct. — Those 
 statutes that require municipal corporations to indemnify 
 private persons for property injured or destroyed by mob 
 or riotous gathering, commonly provide that there shall be 
 no liability if such injury or destruction was due to the 
 plaintiff's own conduct. In some states, the provision 
 upon this point is that he shall not recover if the action of 
 the mob in injuring or destroying his property was due to 
 his own " illegal or improper conduct ; " * in other states, 
 
 plaintiff, and the fact that intimations of danger were given to him, 
 are competent evidence on the issue whether he should have given 
 notice. Palmer v. Concord, 48 N. H. 211, 218 (1868). 
 
 1 Moody V. Niagara County, 46 Barb. (N. Y.), 659 (1866) ; Ely v. 
 Niagara County, 36 N. Y. 297, 298 (1867) ; Donoghue v. Philadelphia 
 County, 2 Pa. St. 230 (1845). 
 
 It may be noted that an apprehension of an intended attack and 
 destruction of property is not knowledge thereof, and that the statute 
 requires a person to act, in the matter of notice, only upon knowl- 
 edge. St. Michael's Church v. Philadelphia County, Bright. (Pa.) 121 
 (1847). 
 
 2 Schieilein v. Kings County, 43 Barb. (N. Y.) 490 (1865) ; Solomon 
 V. Kingston, 24 Hun (N. Y.), 562, 564 (1881) ; AUegheny County v. 
 Gibson, 90 Pa. St. 897, 414 (1879). 
 
 ^ Newberry v. Mayor, etc. of New York, 1 Sweeny (N. Y.), 369 
 (1869) ; AUegheny County v. Gibson, 90 Pa. St. 397, 414 (1879). 
 * Under such a provision, it seems that the separate meaning of the 
 
298 LIABILITY OP MUNICIPAL CORPORATIONS FOE TORT. 
 
 that lie shall not recover if his loss or damage was " due in 
 any manner " to his own " carelessness or negligence. " ^ 
 Whatever the wording of the provision may be, in order to 
 constitute a defence under it, the conduct of the plaintiff 
 must, of course, be such as clearly to come within its 
 terms. 
 
 § 180. The Damages recoverable. — ■ In an action under 
 a statute which imposes a liability upon municipal corpora- 
 tions for private property injured or destroyed by a mob, 
 the plaintiff is entitled to compensation to the full extent 
 of his injury, unless it is otherwise expressly provided in 
 the statute.^ He is not entitled to anything beyond this, 
 and hence cannot recover exemplary or vindictive damages. 
 The measure of his damages, nothing to the contrary 
 appearing in the statute itself, if his property has been 
 destroyed by a mob, is its fair value on the day of its 
 
 two words " illegal " and " improper " is to be given effect. Underhill 
 V. Manchester, 45 N. H. 214 (1864). " Improper conduct " has been 
 held to be such conduct as a man of ordinary and reasonable care and 
 prudence would not have been guilty of under the circumstances. 
 Chadbourne v. Newcastle, 48 N. H. 190 (1868); Palmer v. Concord, 
 48 N. H. 211 (1868) ; and see Allegheny County v. Gibson, 90 Pa. St. 
 397, 415 (1879). In order to defeat an action on this ground, it must 
 appear that the "illegal or improper conduct " of the plaintiff was a 
 proximate cause of the injury or destruction of his property. Alle- 
 gheny County V. Gibson, 90 Pa. St. 397, 415 (1879). 
 
 1 Using property as a bawdy house is not " carelessness or negli- 
 gence " within the meaning of such a provision. Blodgett v. Syracuse, 
 36 Barb. (N. Y.) 526 (1862) ; Ely v. Niagara County, 36 N. Y. 297, 
 300 (1867). Nor is using premises for purposes which constitute a 
 nuisance, as the manufacture of porgy oil, contributory negligence. 
 Brightman v. Bristol, 65 Me. 426 (1876). But where a plaintiff had 
 assembled an armed force in his store and had fired upon the police 
 when they attempted to restore order, he was held to be guilty of 
 careless and negligent conduct which contributed to the riot and de- 
 struction of property which followed, within the meaning of such a 
 provision of the statute. Wing Chung v. Los Angeles, 47 Cal. 531 
 (1874). 
 
 2 In Maine the statute provides that a plaintiff may recover three- 
 
PRIVATE PROPERTY INJURED OR DESTROYED. 299 
 
 destruction.^ And it has been held that interest by way of 
 damages is to be added to such value. ^ 
 
 fourths of the amount of such damage as he may sustain by the action 
 of the mob. Brightman v. Bristol, 65 ile. 426, 438 (1876). 
 
 1 Hermits of St. Augustine c. Philadelphia County, Bright. (Pa.) 
 116 (1847); St. Michael's Church v. Philadelphia County, Bright. 
 (Pa.) 121 (1847). 
 
 2 Greer v. Mayor, etc. of New York, 3 Robt. (N. Y.) 406 (1865). 
 In Fortunioh v. New Orleans, 14 La. An. 115 (1859), it was held 
 
 that the defendant city might show, not as a complete bar to the 
 action but in mitigation of damages, that the plaintiffs had exposed 
 their property in the public market in violation of an ordinance of the 
 city which required the markets to be closed at the hour when the 
 injury was done. 
 
 The Liability of Municipal Corporations for Personal Injuries or Death 
 caused by the Acts of a Mob. — The preservation of the public peace 
 is another of those duties which, primarily devolving upon the state, 
 is usually delegated by it to municipal corporations. " When by the 
 action of the state, a municipal corporation is charged with the pres- 
 ervation of the peace, and empowered to appoint police boards and 
 other agencies to that end, the corporation pro ianio is charged with 
 governmental functions in the public interest and for public purposes, 
 and is entitled to the same immunity as the sovereign granting the 
 power for neglect in preserving the public peace, unless such liability 
 is expressly declared by the sovereign." Hence no liability rests upon 
 them at common law for the death or injury of a person occasioned 
 by an unlawful assemblage. Campbell v. Montgomery, 53 Ala. 527 
 (1875) ; Jolly v. Hawesville, 89 Ky. 279 (1889), (12 S. W. Rep. 313) ; 
 Robinson v. Greenville, 42 Oh. St. 625 (1885); New Orleans v. Abb- 
 agnato, 62 Fed. Rep. 240 (1894). And a statute imposing upon 
 corporations a liability for the destruction of property by mobs will 
 not make it liable for personal injuries or death caused by such assem- 
 blages. Gianfortone v. New Orleans, 61 Fed. Rep. 64 (1894). 
 
 Municipal corporations may, however, be made liable by statute for 
 death or personal injury caused in such manner, Atchison v. Twine, 
 9 Kan. 850 (1872) ; but in order to enforce ,such liability, it must 
 be shown that the assemblage by which the injury was done was a 
 mob, Aron v. Wausau, 74 N. W. Rep. 854 (Wis., 1898). See also Dale 
 County V. Gunter, 46 Ala. 118 (1871) ; Luke v. Calhoun County, 52 
 Ala. 115 (1875), where a statutory liability for the death of a person, 
 caused by parties in ambush, was enforced. 
 
300 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 Paet II. 
 
 By Officers or Agents of the Corporation,, to prevent the 
 Spread of Mre. 
 
 § 181. No Corporate Liability for such Destruction at 
 Common Law. — There seems to be quite general agreement 
 among the authorities that when, in a case of necessity, 
 private property is destroyed by the direction of the officers 
 or agents of a municipal corporation, acting under the 
 authority of some general law or city ordinance,^ in order 
 to arrest the progress of a conflagration, no liability at 
 common law attaches to the corporate body.^ But while 
 
 1 It appears to make no difference in the rule, especially if the 
 police-power theory be adopted as the basis of it, whether such ordi- 
 nance be valid and one that the corporation had power to enact, or 
 not ; for if valid, there is no liability as pointed out in the text, and 
 if not valid, then the destruction of the property was unauthorized 
 by the corporation, and it consequently cannot be held responsible. 
 Field V. Des Moines, 39 la. 575 (1874) ; McDonald v. Red Wing, 13 
 Minn. 38 (1868) ; White v. Charleston, 2 Hill (S. C), 571 (1835). 
 
 ^ California. Dunbar v. San Francisco, 1 Cal. 355 (1850). 
 
 Iowa. Field v. Dea Moines, 39 la. 575 (1874). 
 
 Massachusetts. Taylor v. Plymouth, 8 Met. 462, 465 (1844). 
 
 Minnesota. McDonald v. Red Wing, l3 Minn. 38 (1868). 
 
 New York. Russell v. Mayor, etc. of New York, 2 Den. 461' 
 (1845). 
 
 South Carolina. White v. Charleston, 2 Hill, 571 (1835). 
 
 Texas. Keller v. Corpus Christi, 50 Tex. 614 (1879). 
 
 So far as is known, the only case laying down a contrary rule is 
 that of Bishop v. Macon, 7 Ga. 200 (1849), where it was held without 
 discussion and without the citation of any common law authority, 
 that when private property, which might have been saved, was de- 
 stroyed to prevent the 'spread of a fire, the owner could recover for the 
 loss. Speaking of this decision in Dunbar v. San Francisco, 1 Cal. 
 355, 358 (1850), Mr. Justice Bennett says: "Without some provision 
 in the charter, or some statutory enactment, imposing the liability 
 upon the city, I do not see how that decision can be sustained." 
 But qucBre whether it may not be sound law according to the law of 
 necessity doctrine, since it seems to have been a fact in the case that 
 
PRIVATE PROPERTY INJURED OR DESTROYED. 301 
 
 it is thus agreed that the destruction of private property 
 under such circumstances is not an exercise of the right 
 of eminent domain,^ and raises no common law liability, 
 there is by no means complete harmony of opinion as to 
 the real grounds of the rule. In some jurisdictions it is 
 considered that such destruction of private property is an 
 exercise of the police power expressly vested in the cor- 
 poration by the state, to which no liability attaches unless 
 expressly so declared by legislative enactment.^ In other 
 jurisdictions the decision in cases of this class is rested 
 upon the law of overruling necessity. Under this latter 
 doctrine, statutory or charter provisions, delegating power 
 to a corporation to destroy private property in order to 
 prevent the spread of fire, are regarded not as conferring 
 a new power under which the corporation may justify its 
 action, but simply as regulating the exercise of a right 
 that already existed. ^ 
 
 Whatever differences of opinion may exist as to the true 
 principles upon which it stands, the rule itself, as already 
 indicated, is clear and well supported by authority. 
 
 § 182. A Liability in such Cases may be created by 
 Statute. — It is within the power of the state, if it sees 
 fit, to provide for the reimbursement of private persons 
 
 the destruction of the plaintiff's property was not necessary, which 
 fact, in an action against a natural person, would give rise to a lia- 
 bility. See Taylor v. Plymouth, 8 Met. (Mass.) 462, 465 (1844). 
 
 ^ In the following cases it was expressly decided that such a de- 
 struction of private property was not an exercise of the right of emi- 
 nent domain. Field v. Des Moines, 39 la. 575, 585 (1874) ; McDonald 
 «. Red Wing, 13 Minn. 38, 41 (1868); Russell v. Mayor, etc. of New 
 York, 2 Den. (N. Y.), 461 (1845). 
 
 2 Field u. Des Moines, 39 la. 575 (1874) ; Keller v. Corpus Christi, 
 50 Tex. 614 (1879). The cases of McDonald v. Red Wing, 13 Minn. 
 38 (1868), and White v. Charleston, 2 Hill (S. C), 571 (1835), ap- 
 pear also to stand upon this ground. 
 
 ' Taylor v. Plymonth, 8 Met. (Mass.) 462, 465 (1844); Russell v. 
 Mayor, etc. of New York, 2 Den. (N. Y.) 461 (1845). 
 
302 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 who have sustained losses through the destruction of their 
 property by the direction of the officers or agents of a 
 municipal corporation in order to check a conflagration/ 
 and statutes for -that purpose have been enacted in several 
 states. Such a remedy is, of course, purely statutory, 
 and hence an injured person must, in order to recover 
 under it, bring his case fairly within its terms. ^ 
 
 1 Bowditoh u. Boston, 101 U. S. 16 (1879). 
 
 2 Taylor v. Plymouth, 8 Met. (Mass.) 462 (1844); Rugglesu. Nan- 
 tucket, 11 Cush. (Mass.) 433 (1853); Stone v. Mayor, etc. of New 
 York, 25 Wend. (N. Y.) 157 (1840) ; Russell v. Same, 2 Den. (N. Y.) 
 461 (1815) ; Bowditch v. Boston, 101 U. S. 16 (1879). 
 
 Under the New York statute, which provided for the assessment 
 of those "damages which the owner of such building, and all persons 
 having any estate or interest therein have respectively sustained by 
 the pulling down or destruction thereof," it has been held that a lessee 
 of a building so destroyed was entitled to damages for the merchan- 
 dise and personal property belonging to him, which was in, and de- 
 stroyed with, the building, Mayor, etc. of New York v. Lord, 18 
 Wend. (N. Y.) 126 (1837) ; but that he cannot recover for merchan- 
 dise destroyed with the building, which did not belong to him but 
 was in his possession as a factor, or merely for storage. Stone v. 
 Mayor, etc. of New York, 25 Wend. (N. Y.) 157 (1840). Nor can 
 the owner of the merchandise so held recover for its loss, if he has no 
 interest in the building. Russell v. Mayor, etc. of New York, 2 Den. 
 (N. Y.) 461 (1845). 
 
 In Massachusetts, where the statute provides that when the pulling 
 down of a building, by order of three firewards, or of certain other 
 officers in the absence of firewards, shall be the means of stopping a 
 fire, the owner of such building shall be entitled to recover reasonable 
 compensation therefor from the city or town, the courts have held that, 
 in order to recover, a plaintiff must show that he was the legal owner 
 of the building destroyed, Ruggles u. Nantucket, 11 Cush. (Mass.) 433 
 436 (1853) ; that the destruction of the building was ordered by three 
 firewards jointly: proof of the destruction by the direction of one fire- 
 ward not being sufficient. Coffin v. Nantucket, 5 Cush. (Mass.) 269 
 (1850) ; that the three firewards ordered the destruction of his build- 
 ing, and not merely that they agreed generally that some building . 
 should be demolished, Ruggles v. Nantucket, 11 Cush. (Mass.) 483, 
 436 (1853). And it has also been held that the owner of a building 
 which had been pulled down by the order of three firewards could not 
 
PKIVATB PEOPEETY INJUEED OE DESTEOTED. 303 
 
 Paet III. 
 
 By the Officers or Agents of the Corporation, to abate 
 a Public Nuisance. 
 
 § 188. Corporations generally not Iiiable for Damages due 
 to the Abatement of Public Nuisances. — The power to abate 
 public nuisances which is commonly vested in municipal 
 corporations by the state carries with it the right to take 
 whatever steps may be necessary to its proper exercise. 
 If, therefore, in the course of such exercise of this power, 
 the property of a private person is injured or destroyed, the 
 corporation is not responsible at common law for such 
 loss, provided no greater damage has been done than was 
 necessary.^ Such loss is not a taking of private property 
 for public use without compensation or without due process 
 of law within the meaning of the constitutional prohibi- 
 tion,^ but is simply a result of the legitimate exercise 
 
 recover under the statute for his loss where it appeared that such 
 destruction was carried out after the building was so far burnt that it 
 was impossible to save it. Taylor v. Plymouth, 8 Met. (Mass.) 462 
 (1844). 
 
 In Dawson v. Kuttner,' 48 Ga. 133 (1873), it was decided by the 
 court that under a statute giving a right to compensation where "pri- 
 vate property " was destroyed for the public good, " such as the de- 
 struction of houses to prevent the spread of a conflagration," the 
 plaintiff might recover for the loss of personal property destroyed with 
 the building that had been demolished for such purpose. 
 
 1 Ferguson v. Selma, 43 Ala. 398 (1869) ; Americus v. Mitchell, 79 
 Ga. 807 (1887), (5 S. E. Rep. 201) ; King v. Davenport, 98 111. 305 
 (1881); Indianapolis v. Miller, 27 lud. 394 (1866)^ Cole v. Kegler, 64 
 la. 59 (1881), (19 N. W. Rep. 843); Haskell v. New Bedford, 108 
 Mass. 208, 211 (1871); St. Louis v. Stern, 3 Mo. App. 48 (1876). 
 
 2 Green v. Savannah, 6 Ga. 1 (1849); Manhattan, etc. Co. v. Van 
 Keuren, 23 N. J. Eq. 251 (1872). In this last case Vice-Chancellor 
 Dodd says, at page 255 : " In abating it [a public nuisance] property 
 may be destroyed and the owner deprived of it without trial, without 
 notice, and without compensation. Such destruction for the public 
 
304 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 of that portion of the police power of the state which is 
 necessarily vested in municipal corporations for the con- 
 servation of the health, safety, and comfort of their 
 citizens/ 
 
 But in order to avail themselves of this immunity from 
 liability municipal corporations must show that the thing 
 abated was in fact a nuisance, and that no unnecessary 
 damage was done in the abatement of it. If the thing 
 abated was not in fact a nuisance, ^ or if unnecessary 
 damage was done to private property in the abatement of 
 it,^then the municipality becomes liable at common law 
 for the damage done. 
 
 safety or health, is not a taking of private property for public use, 
 without compensation or due process of law, in the sense of the Con- 
 stitution. It is simply the prevention of its noxious and unlawful use, 
 and depends upon the principles that every man must so use his prop- 
 erty as not to injure his neighbor, and that the safety of the public is 
 the paramount lav. These principles are legal maxims or axioms 
 essential to the existence of regulated society. Written constitutions 
 presuppose them, are subordinate to them, and cannot set them aside. 
 They underlie and justify what is termed the police power of the 
 state." 
 
 1 Baker u. Boston, 12 Pick. (Mass.) 184, 194 (1831). 
 
 2 Americus v. Mitchell, 79 Ga. 807 (1887), (5 S. E. Rep. 201); 
 Cole V. Kegler, 64 la. 59 (1884), (19 N. W. Rep. 843). 
 
 A corporation cannot by its own declaration make a thing a nui- 
 sance when it is not so in fact, and then subject it to removal as such. 
 Yates V. Milwaukee, 10 Wall. (U. S.) 497 (1870). 
 
 8 Bush V. Dubuque, 69 la. 233 (1886), (28 N. W. Rep. 542). And 
 see cases cited on page 303, note 1. 
 
 In Clark v. Syracuse, 13 Barb. (N. Y.) 32 (1852), the court held 
 that the defendant city had no right under its general powers regard- 
 ing nuisances, in order to abate the nuisance arising from stagnant 
 water, to remove a dam erected by the plaintiff for the purpose of ob- 
 taining a water supply at his mill, since the effect would be to destroy 
 a valuable property. 
 
 See also Babcook v. Buffalo, 1 Sheld. (N. Y.) 317 (1872), affirmed 
 in 56 N. Y. 268 (1874), which is to the same effect. 
 
THE LIABILITY EELATIVE TO NUISANCES. 305 
 
 CHAPTER X. 
 
 THE LIABILITY EELATIVE TO NUISANCES. 
 
 8 184. The Liability for creating or maintaining a Public 
 Nuisance. — While municipal corporations have no more 
 right than a private person to create or maintain a com- 
 mon nuisance, nevertheless, so long as the injury suffered 
 by each individual is the same in kind as that suffered by 
 every other individual in the community or section of the 
 community affected by such nuisance, none of them can 
 maintain a private action against the corporate body. The 
 only remedy available in such a case is by indictment. 
 But if, even though the nuisance be a public one, a person 
 can show that he has suffered therefrom some special and 
 peculiar damage, differing in kind from that suffered by 
 him in common with the rest of the community, he is 
 entitled to recover in a civil action compensation therefor 
 from the municipality that created or maintained such 
 nuisance. * 
 
 § 1 85. The Liability for creating and maintaining a Private 
 Nuisance, — Speaking generally, municipal corporations 
 stand, in regard to the creation and maintenance of pri- 
 
 1 Grove v. Fort Wayne, 45 Ind. 429 (1874) ; Franklin Wharf Co. 
 V. Portland, 67 Me. 46 (1877) ; Breed v. Lynn, 126 Mass. 367 (1879) ; 
 Clark V. Peokham, 10 R. I. 35 (1871); Harper v. Milwaukee, 30 Wis. 
 365 (1872); Hughes v. Fond du Lac, 73 Wis. 380 (1889), (41 N. W. 
 Rep. 407). 
 
 No right to maintain a public nuisance can be acquired by prescrip- 
 tion, for the statute of limitations does not run against the public. 
 Tainter v. Morristown, 19 N. J. Eq. 40, 59 (1868). 
 
 20 
 
306 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 vate nuisances, on substantially the same footing as pri- 
 vate corporations and natural persons. Their rights arc 
 no greater; their civil responsibility is generally no less. 
 As a rule, therefore, they are liable in a private action to 
 any individual who suffers damage by reason of a private 
 nuisance created and continued by them.^ 
 
 This general rule of liability is subject, it was held 
 in the Maine case of Seele v. Deering,^ to the exception 
 that if the acts from which the nuisance results were not 
 within the scope of its corporate powers, no liability arises 
 against the corporation. Civil responsibility for private 
 nuisances is thus limited by this decision to such as grow 
 out of acts which they have authority to do. 
 
 § 186. The Liability for not abating a Public Nuisance 
 created or maintained by Private Persons upon their oTwn 
 Premises. — Municipal corporations to whom the state has 
 
 1 Morgan v. Danbury, 67 Conn. 484 (1896), (35 Atl. Rep. 499) ; 
 Nevins v. Peoria, 41 111. 502 (1866) ; Jacksonville v. Doan, 145 111. 23 
 (1893), (33 N. E. Rep. 878) ; Haag v. Vanderburgh County, 60 Ind. 
 511 (1878); Haskell v. New Bedford, 108 Mass. 208 (1871); Edmond- 
 son V. Moberly, 98 Mo. 523 (1889), (11 S. W. Rep. 990); Chapman v. 
 Rochester, 110 N. Y. 273 (1888), (18 N. E. Rep. 88); Dembyu. Kings- 
 ton, 60 Hun (N. Y.), 294 (1891), (14 N. Y. Supp. 601) ; Butchers' Ice, 
 etc. Co, V. Philadelphia, 156 Pa. St. 54 (1893), (27 Atl. Rep. 376). 
 
 A city cannot create a nuisance upon the property of a private citi- 
 zen, and then compel him to abate it. Hannibal v. Richards, 82 Mo. 
 330 (1884). 
 
 2 79 Me. 343 (1887), (10 Atl. Rep. 45). 
 
 In Fort Worth v. Crawford, 64 Tex. 202 (1885), the court held that 
 " in reference to the liability of municipal corporations for creating or 
 failing to remove a nuisance, this distinction is to be observed : If 
 the nuisance grows out of acts done exclusively in the interest of the 
 public, such as the improvement of the sanitary condition of the city, 
 then it would only be liable for a careless or negligent execution of 
 the duty. But if the acts out of which the nuisance originated or is 
 continued were done for the private advantage or emolument of the 
 municipal corporation, then, irrespective of the question of negligence, 
 it would be liable for the injuries resulting therefrom." No authority 
 fairly supporting this distinction has been found. 
 
THE LIABILITY RELATIVE TO NUISANCES. 307 
 
 delegated ample power to abate common nuisances are 
 bound to exercise that power for the removal of such of 
 them as they know, either actually or constructively, to 
 exist. This duty, it seems, is positive. Hence, if any 
 individual suffers a special injury, not common to the 
 whole community, by reason of the failure of a corporation 
 to perform this duty and abate the nuisance, it will be 
 liable for such damage in a private action at common 
 law. ^ 
 
 § 187. Tbe Liability for not abating a Private Nuisance 
 created by Third Parties upon Premises under the Control 
 of the Corporation. — ■ The responsibility of municipal cor- 
 porations for continuing a private nuisance, created by 
 third parties upon premises which subsequently come 
 under the control of such corporations, is identical with 
 that of a private person under like circumstances. No 
 liability arises until after notice of the existence of such 
 nuisance and a request to remove it. But after such notice 
 and request, the person injured by the continuance of such 
 nuisance can recover compensation therefor in a private 
 suit. 2 
 
 1 Parker v. Macon, 39 Ga. 725 (1869) ; Kiley v. Kansas City, 69 
 Mo. 102 (1878). In each of these cases the defendant city was held 
 liable for personal injuries suffered by reason of the fall of the par- 
 tially burned walls of a building which stood upon the premises of a 
 private person, but on, or very near to, the edge of the street. If such 
 walls had stood back from the edge of the street sufficiently far so as 
 not to constitute a public nuisance, then there would be no liability 
 against the city ia favor of a person injured by their fall. Cain v. 
 Syracuse, 95 N. Y. 83 (1884). See also Howe v. New Orleans, 12 La. 
 An. 481 (1857). 
 
 2 Morse v. Fair Haven East, 48 Conn. 220 (1880) ; Nichols v. Bos- 
 ton, 98 Mass. 39 (1876). In this Connecticut case the question whether 
 or not there must be a request to the corporation to remove the nui- 
 sance, as well as notice of its existence, was expressly left open. But 
 in the Massachusetts case the request to remove was stated as a part of 
 the rule of liability. 
 
308 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 188. The Liability for not abating a Private Nuisance 
 created or maintained by Third Persons upon Private Prem- 
 ises. — The power to abate private nuisances which is gen- 
 erally delegated to municipal corporations is a power 
 conferred upon them for the public good. In its exercise 
 they act, not for their own corporate advantage, but for the 
 public benefit, as the representatives of the state. Hence, 
 upon general principles, they are not responsible at the 
 suit of a private individual for damages occasioned by the 
 failure of their officers to pass the necessary resolutions 
 for the abatement of private nuisances ; ^ nor for damages 
 arising from the omission of their officers to enforce the 
 laws and ordinances made and provided for the removal of 
 such nuisances. 2 
 
 1 Cain V. Syracuse, 95 N. Y. 83 (1884). 
 
 ^ Davis V. Montgomery, 51 Ala. 139 (1874) ; Armstrong v. Bruns- 
 wick, 79 Mo. 319 (1883) ; MoCrowell v. Bristol, 5 Lea (Tenn.), 685 
 (1880). In this last case it was decided that no action could be main- 
 tained against the defendant city on the ground that a regulai'ly 
 licensed saloon-keeper was permitted to keep his saloon in such a 
 manner as to be a nuisance to the plaintiff, whose residence was upon 
 adjoining property. 
 
PUBLIC HEALTH, CHARITIES, AND SCHOOLS. 309 
 
 CHAPTER XL 
 
 THE LIABILITY RELATIVE TO PUBLIC HEALTH, CHARITIES, 
 AND SCHOOLS. 
 
 § 189. The Duties involved in these Matters are gov- 
 ernmental, and no Liability attaches to their Performance. 
 — Duties relating to the preservation of the public health, 
 to the administration of public charities, and to the main- 
 tenance of public schools are duties that devolve primarily 
 upon the state as the sovereign power. The performance 
 of them by the state is strictly the discharge of a function 
 of government, to which, from reasons of public policy, 
 no civil liability attaches. If, then, the state, by general 
 law or by charter provision, delegates these duties to 
 municipal corporations, which as a matter of administra- 
 tive policy it commonly does, they, in so far as they act 
 in the performance of them, act as the representatives of 
 the state and in the discharge of purely governmental 
 functions, the exercise of which interests and benefits not 
 merely the citizens within their own limits, but as well 
 the citizens of the state as a whole. Hence so far as 
 responsibility for torts growing out of the performance of 
 these duties is concerned, municipal corporations are enti- 
 tled to, and are universally accorded by the courts, the same 
 immunity from civil suit as the state itself enjoys, unless 
 a liability is expressly declared by statute. 
 
 § 190. Illustrations of the Rule — Torts committed by 
 Health Officials. — Numerous decisions based upon such 
 considerations are to be found in the books, wherein 
 
310 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 municipal corporations have been held not to be liable at 
 common law for the negligent or tortious acts of their 
 officers or agents done while engaged in enforcing sani- 
 tary regulations intended to prevent the spread of conta- 
 gious diseases, whereby such a disease was communicated 
 to a private citizen ^ or to his family,^ or whereby private 
 property was injured^ or destroyed.* 
 
 And so it has been held that they were not liable for the 
 negligence^ or the incompetence^ of a driver of a garbage 
 wagon, or of other employees of the health department,^ 
 in consequence of which an injury was occasioned to an 
 individual. 
 
 § 191. Illustrations of the Rule — Torts committed by- 
 Charity Officials. — In enforcing this general rule of im- 
 munity, as applied to the torts of corporate ofiBcers or 
 
 1 Barbour v. Ellsworth, 67 Me. 294 (1876). 
 
 ■■' Ogg V. Lansing, 3.5 la. 495 (1872). 
 
 In Wyatt v. Rome, 105 Ga. 312 (1898), (31 S. E. Rep. 188), the 
 court decided that the defendant city was not liable to a citizen who 
 sustained an injury on account of impure virus matter administered to 
 him by corporate officers or agents in the enforcement of a valid 
 ordinance requiring citizens and residents of the city to submit to 
 vaccination. 
 
 « Mitchell V. Rockland, 52 Me. 118 (1860), where the defendant 
 city was held not responsible for damages done in the course of fumi- 
 gating the plaintiff's ship by order of its health officers. 
 
 4 Bamber v. Rochester, 26 Hun (N. Y.), 587 (1882), where the 
 city was held not liable for the destruction, by order of health officials, 
 of rags alleged to be infections and dangerous to health. 
 
 » Condict V. Jersey City, 46 N. J. L. 157 (1884). 
 
 6 Love V. Atlanta, 95 Ga. 129 (1894), (22 S. E. Rep. 29). 
 
 ' Richmond v. Long, 17 Gratt. (Va.) 375 (1867), where the defend- 
 ant city was held not to be liable for the negligence or misconduct of 
 hospital officers or employees, in consequence of which the plaintiff's 
 slave, who was a patient in the hospital, was lost. Bryant v. St. Paul, 
 33 Minn. 289 (1885), (23 N. W. Rep. 220), where the corporation 
 was held not liable for the negligence of an employee of the Board of 
 Health in leaving open a vault, into which the plaintiff fell and was 
 injured. 
 
PUBLIC HEALTH, CHARITIES, AND SCHOOLS. 311 
 
 agents committed while they were engaged in the discharge 
 of the duties involved in the administration of public 
 charities, the courts have held municipal corporations not 
 to be responsible in a civil suit at common law for per- 
 sonal injuries occasioned by the unskilful treatment 
 accorded to indigent and non-paying patients by a physi- 
 cian employed by them to treat such patients ; ^ nor for the 
 negligence of their officers or agents in the management of 
 the property of the department of public charities, which 
 resulted in an injury to the person ^ or to the property ^ 
 of a citizen. 
 
 § 192. Illustrations of the Rule — Torts committed by 
 School Officials. — The application of this general rule of 
 exemption from liability to the tortious acts of school offi- 
 cers or agents has resulted in numbers of decisions holding 
 municipal corporations not to be liable, in the absence of 
 some statute expressly making them so, for personal in- 
 juries suffered by reason of defective conditions existing 
 through the negligence of the agents or employees of the 
 school board, in a school yard,* or in a school building^ 
 
 1 Sherbourne v. Yuba County, 21 Cal. 113 (1862); Summers v. 
 Daviess County, 103 Tnd. 262 (1885), (2 N. E. Eep. 725) ; Murtaugh 
 V. St. Louis, 44 Mo. 479 (1869). 
 
 2 Maxmilian v. Mayor, etc. of New York, 62 N. Y. 160 (1875), 
 where the city was held not liable for personal injuries occasioned by 
 the driver of an ambulance in the employ of the Board of Charities, 
 who so negligently managed the vehicle as to run over the plaintiff. 
 
 ' Haight V. aiayor, etc. of New York, 24 Fed. Rep. 93 (1885). In 
 this case it was held that a libel to recover damages for a collision be- 
 tween the plaintiff's schooner and a steamboat owned by the defend- 
 ant city, but in the exclusive use and control of its commissioners of 
 charities and navigated by a pilot employed by them, could not be 
 sustained, though the collision was solely through the fault of the 
 pilot of the steamer. 
 
 * Donovan v. Board of Education, 85 N. Y. 117 (1881) ; Finch v. 
 Board of Education, 30 Oh. St. 37 (1876). 
 
 6 Lane v. Woodbury Township, 58 la. 462 (1882), (12 N. W. Kep. 
 
312 LIABILITY OF MUNICIPAL CORPORATIONS FOR TOET. 
 
 or its heating apparatus. •* Nor are they liable for injuries 
 to adjoining property due to defective conditions suffered 
 to exist upon school premises.^ 
 
 478) ; Hill v. Boston, 122 Mass. 344 (1877) ; Diehm v. Cincinnati, 25 
 Oh. St. 305 (1874). 
 
 In Lane v. Woodbury Township, 58 la. 462 (1882), (12 N. W. Rep. 
 478), it appeared that the lightning-rods upon the school building had 
 fallen into disrepair through the neglect of the school officers ; that the 
 building was struck by lightning, and the plaintiff, a pupil, was in- 
 jured thereby. The defendant township was held not to be liable. 
 
 1 Wixon V. Newport, 13 R. I. 454 (1881). 
 
 2 Ham V. Mayor, etc. of New York, 70 N. Y. 459 (1877). In this 
 case the facts were that, by reason of the negligent and improper con- 
 struction and use of the water-closets in the school building, foul water 
 ran on to the plaintiff's premises, which adjoined the school property, 
 and injured his goods. 
 
THE LIABILITY RELATIVE TO ORDINANCES. 313 
 
 CHAPTER XII. 
 
 THE LIABILITY RELATIVE TO ORDINANCES. 
 
 § 193. Where lujuries are due to a Failure to enact 
 Ordinances. — The fact that the state has delegated au- 
 thority to municipal corporations to establish by-laws and 
 ordinances for the good government of their citizens, does 
 not impose any absolute duty upon them. The exercise 
 of the authority so conferred rests rather in the discretion 
 of the officers of the legislative branch of the municipal 
 government. It is for them to determine, according to 
 their own judgment, what ordinances the public interests 
 of the community, at the particular time and under the 
 particular circumstances, require. It follows that how- 
 ever much general interest private citizens may have in 
 securing a wise regulation of municipal affairs, they have 
 no absolute right to any specific regulation. 
 
 Since in passing upon the question of the necessity or 
 expediency of enacting any specific ordinance, the cor- 
 porate authorities act in the discharge of the legislative 
 function of the state, if any citizen is injured because such 
 action resulted in a failure to enact a measure which might 
 have prevented the damage, these facts give him no right 
 of action at common law against the corporate body. * 
 
 1 Cain V. Syracuse, 95 N. T. 83 (1884), where the injury was due 
 to an omission to pass the necessary resolutions for the abatement of a 
 private nuisance. Kelley v. Milwaukee, 18 Wis. 83 (1864), in which 
 
314 LIABILITY OP MUNICIPAL CORPORATIONS FOR TORT. 
 
 § 194. "Where Injuries are due to a Failure to enforce 
 Ordinances, or to the Improper Enforcement of them. — As 
 municipal corporations represent the state in enacting the 
 by-laws or ordinances deemed necessary for the proper 
 regulation of affairs within their territory, so also in the 
 matter of enforcing them do they represent the state. 
 While the former was the exercise of the legislative 
 power, the latter is the exercise of the executive power. 
 In accordance with that general rule which protects cor- 
 porate bodies while acting in the discharge of the func- 
 tions of the state, the rule is that they are not responsible 
 at common law for injuries to individuals due in any 
 manner either to the entire omission of their officers to 
 enforce the ordinances and regulations made and provided 
 by the legislative branch of their government,^ or to the 
 
 case the injury was declared to be due- to the failure to pass an ordi- 
 nance to prevent swine from running at large. 
 
 In Jones v. Williamsburg, 97 Va. 722 (1900), (34 S. E. Kep. 883), 
 the defendant city was held not to be liable to a person injured by 
 being struck by a bicycle ridden on the sidewalk, because of its failure 
 to pass an ordinance prohibiting such use of its sidewalks. 
 
 1 Levy V. Mayor, etc. of New York, 1 Sandf. (N. Y.) 465 (1848), 
 ■where the plaintifi's injury was alleged to be due to a failure of the 
 defendant's ofBoers to enforce an ordinance prohibiting swine from run- 
 ning at large. See also Rivers v. Augusta, 65 Ga. 376 (1880) ; and 
 Kelley v. Milwaukee, 18 Wis. 83 (1864), cases involving a similar 
 ordinance. 
 
 Ball V. Woodbine, 61 Ta. 83 (1883), (15 N. W. Kep. 846) ; Boyland 
 I'. Mayor, etc. of New York, 1 Sandf, (N. Y.) 27 (1847) ; Robinson !-■. 
 Greenville, 42 Oh. St. 625 (1885); and Norristown v. Fitzpatrick, 94 
 Pa. St. 121 (1880), in which cases the injury was declared to be due to 
 the defendant's failure to enforce an ordinance forbidding the firing 
 of cannon, fire-crackers, and the like. 
 
 Lafayette v. Timberlake, 88 Tnd. 330 (1882) ; Pierce v. New Bedford, 
 129 Mass. 534 (1880) ; and Schultz v. Milwaukee, 49 Wis. 254 (1880), 
 (5 N. W. Rep. 842), cases where the omission to enforce ordinances 
 to prevent coasting upon the public streets occasioned the plaintiff's 
 injury. 
 
 Davis V. Montgomery, 51 Ala. 139 (1874) ; Forsyth v. Atlanta, 45 
 
THE LIABILITY EELATIVE TO ORDINANCES. 315 
 
 negligent or improper conduct of their officers in the 
 enforcement of them.^ 
 
 § 195. Where Injuries are due to the Suspension or 
 Repeal of an Ordinance. — The power to determine the 
 necessity or expediency of specific measures for the man- 
 agement of corporate affairs is not exhausted in its first 
 exercise. It is in the nature of a continuing power, 
 capable of being exercised again and again, as the passage 
 of time and the change of circumstances may require. 
 The suspension or repeal of an ordinance is, consequently, 
 simply a further exercise of that legislative power which 
 is vested in municipal corporations by the state. As the 
 common law held them to be exempt from liability for the 
 consequences of the first exercise of that power which 
 resulted in the enactment of the ordinance, so it holds 
 them to be free from responsibility for any injuries due 
 to a further exercise of it which results in the suspension 
 or repeal of the ordinance. '-^ 
 
 Ga. 152 (1872). In these cases the plaintiff claimed that his damages 
 were due to the defendant's omission to enforce ordinances the object 
 of which was to guard against fire. 
 
 1 Wyatt V. Rome, 105 Ga. 312 (1898), (31 S. E. Rep. 188), where 
 it was decided that the city was not liable for any injury that might be 
 sustained by a citizen on account of impure virus administered to him 
 in the enforcement of a valid ordinance requiring citizens and resi- 
 dents of the city to submit to vaccination. Odell v. Schroeder, 58 
 111. 353 (1871), a case where the defendant town was held not liable 
 for the illegal and unauthorized acts of its officers in enforcing an 
 ordinance. 
 
 In Worley v. Columbia, 88 Mo. 106 (1885), the defendant was held 
 not to be responsible for a trespass committed by its officers in the 
 enforcement of a void ordinance. 
 
 Where the city let a stall in a market to the defendant and licensed 
 him to sell meat, it was held to be no defence to an action for rent that 
 the city officers had neglected to enforce an ordinance prohibiting un- 
 licensed persons from selling. Peck v. Austin, 22 Tex. 261 (1858). 
 
 2 Wheeler v. Plymouth, 116 Ind. 158 (1888), (18 N. E. Rep. 532); 
 Hill V. Charlotte, 72 N. C. 55 (1875), cases where the defendant sus- 
 
316 LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT. 
 
 pended its ordinance prohibiting the firing of gunpowder, fire-crack- 
 ers, and the like, within the city limits, and afterwards, while it was 
 so suspended, the plaintiffs' buildings were set on fire and damaged or 
 destroyed by the firing of such explosives. Rivers v. Augusta, 65 Ga. 
 376 (1880), where the plaintiff was injured by a cow running at large, 
 at a time when the city ordinance against permitting cattle to run at 
 large was suspended. 
 
INDEX. 
 
INDEX. 
 
 THE EEFEEENCES AKE TO PAGES. 
 
 A. 
 
 ABANDONMENT OF DRAINS OR SEWERS, 
 
 nature of duty involved in, 257, 270. 
 
 where, is done in negligent manner, 271. 
 ABUTMENTS, 
 
 are a part of bridge, 73, n. 
 ACTUAL NOTICE, 
 
 what is, of defects in bridge, 93. 
 
 when, of defects in bridge must be shown, 93. 
 
 what is, of defects in highway, 207. 
 
 to whom, must be brought home, 204. 
 
 to policeman, of defects in highway, 206. 
 
 to a de facto oflBcer sufficient, 207. 
 APPARATUS. (See Fire Apparatus.) 
 APPROACHES TO BRIDGE, 
 
 are part of bridge itself, 72. 
 
 extent of, is question of fact, 73. 
 
 portion of highway lowered to pass under bridge, not, 73, n. 2. 
 ARREST, 
 
 no corporate liability for false, 38, 39, n. 
 
 even though officer intoxicated when making, 38, n. 3. 
 
 cases where liability was imposed for, 39, n. 
 ASSAULT AND BATTERY, 
 
 municipal corporations not liable for, by police, 38. 
 ASSUMPTION OF RISK, 
 
 of injury while putting bridge to new use, 77. 
 
 of injury from defects in highway, 239. 
 ARTIFICIAL CHANNEL, 
 
 liability where insufficient capacity is given to, 286. 
 AWNINGS, 
 
 insecure, as defects in highway, 152, 153. 
 
320 INDE5. 
 
 References are to pagee. 
 
 B. 
 BACKWATER, 
 
 liability for causing, 285. 
 BARRIERS UPON BRIDGES, 
 
 duty to provide, 86. 
 
 liability where, are removed by third parties, 87. 
 BARRIERS UPON THE HIGHWAY, 
 
 duty to erect, when lack of means to repair, 186. 
 
 duty to erect, to guard excavation in highway, 195. 
 
 duty to erect, to guard excavation near highway, 196. 
 
 liability where, are removed by third parties, 197. 
 
 erection of, to protect travellers coming from private ways, 197. 
 
 kind of, required, 198. 
 BICYCLES, 
 
 how far corporations are bound to make highways safe for, 
 178, n. 2. 
 BILL-BOARD, 
 
 insecure, adjacent to highway as defect therein, 155. 
 BLINDNESS, 
 
 travelling on highway when afflicted with, not negligence per se, 
 237. 
 BRIDGES, 
 
 liabilities relative to, 70-95. 
 
 are part of highway, 126, n. 1. 
 
 source of liability as to, 70. 
 
 for what, liability exists, 71. 
 
 what constitutes, 72. 
 
 what traveller upon, may assume, 74. 
 
 putting, to new use, 76. 
 
 corporations not insurers of condition of, 81. 
 
 where defects in, ai-e due to plan of construction, 83. 
 
 liability in respect to width of, 83. 
 
 liability in respect to height of, 84. 
 
 liability in respect to strength of, 84. 
 
 duty and liability as to railings upon, 85. 
 
 duty and liability as to barriers upon, 86. 
 
 duty relative to inspection of, 88. 
 
 duty to make repairs upon, 89. 
 
 necessity of showing notice of defects in, 91. 
 
 when such notice need not be shown, 91. 
 
 to whom such notice must be brought home, 92. 
 
 actual notice of defects in, 93. 
 
 constructive notice of defects in, 93. 
 
 duty after notice of defects in, 94. 
 
 obstruction of watercourse by, 284. 
 
INDEX. 321 
 
 References are to pages. 
 
 c. 
 
 CAUSE OF ACCIDENT, 
 
 statement of, in notice of accident, 247. 
 CELEBRATIONS, 
 
 liability for injuries received in course of, 47, n. 
 CELLARWAY, 
 
 as defect in highway, 151, n. 
 CHANNEL OF NATURAL STREAM, 
 
 liability for making, of insufficient capacity, 288. 
 CHARITIES, 
 
 nature of duty to administer public, 309. 
 
 corporations not liable for torts of charity officials, 310. 
 CHILDREN, 
 
 maintaining premises dangerous to, 60, n. 
 
 effect of, playing in street, where liability is statutory, 122, 123. 
 
 effect of same where liability is at common law, 124. 
 CITY ORDINANCES. (See Ordinances.) 
 CITY OR TOWN HALL, 
 
 liability as owners of, while using for public purposes, 61. 
 
 while using for private purposes, 62. 
 
 liability while engaged in erection of, 62. 
 CIVIL LAW, 
 
 rule of, as to surface waters, 273. 
 CLAIM OF DAMAGES, 
 
 statement of, in notice of accident, 248. 
 COAL-HOLE, 
 
 as defect in highway, 151, n. 
 COASTING ON HIGHWAY, 
 
 as defect therein, 155. 
 COMMON EMPLOYMENT, 
 
 defence of, how far open to mxmicipal corporations, 56. 
 
 when defence of, is not open, 57. 
 
 defence of, in highway cases, 124. 
 COMMON LAW, 
 
 rule of, as to surface waters, 274. 
 CONCURRENT CAUSE OF INJURY, 
 
 effect of, in highway cases, 166. 
 
 rule as to, in Maine and Massachusetts, 166, 167. 
 
 general rule as to, 168. 
 
 qualified rule as to, 170. 
 
 runaway horse as, 171. 
 CONSEQUENTIAL DAMAGES, 
 
 liability for, due to construction of highways, 97. 
 
 the Ohio doctrine as to, 100. 
 
 21 
 
322 INDEX. 
 
 References are to pages. 
 
 CONSEQUENTIAL DAMAGES - continued. 
 
 surface waters treated as causing, 276. 
 
 when due to iuiproTements in watercourse, 281. 
 CONSPIRACY, 
 
 municipal corporations not liable for, of their inhabitants, 23, n. 
 CONSTRUCTION OF HIGHWAY, 
 
 liability growing out of, 96-105. 
 
 nature of duty to undertake, 96. 
 
 no liability for failure to undertake, 14, 36, 96. 
 
 liability for consequential damages due to, 97. 
 
 Ohio rule as to such damages, 100. 
 
 liability where work incident to, is done negligently, 103. 
 
 liability where this work results in taking of private property, 
 103. 
 
 liability where authority for, is not followed, 105. 
 
 involves no duty to build sewers, 258. 
 
 effect of, by private parties, 132. 
 
 actual work involved in, is ministerial, 103. 
 CONSTRUCTIVE NOTICE, 
 
 of defects in bridge generally sufficient, 93. 
 
 what is, of defects in highway, 208. 
 
 facts from which, may be inferred, 209. 
 
 when defect is not continuous, 212, n. 3. 
 
 as to natural tendency of wood to decay, 213, n. 1. 
 
 length of time defect has existed as element in, 210. 
 
 exposure of defect to observation as element in, 213. 
 
 extent of use of highway as element in, 217. 
 
 when may be inferred from general disrepair, 215. 
 
 when may be inferred from nearby defects, 215. 
 
 when from failure to make proper repairs, 217, n. 1. 
 
 when from causes known to be in operation, 218, n. 1. 
 
 whether corporation had, is question of fact, 219. 
 CONTRIBUTORY NEGLIGENCE, 
 
 of traveller upon bridge, 75. 
 
 knowledge of defects in bridge not, per se, 75. 
 
 driving upon bridge at rapid pace as, 75, n. 3. 
 
 application of doctrine of,- to highway cases, 220. 
 
 standard of care required of travellers, 221. 
 
 upon whom burden as to, rests, 222. 
 
 generally a question for the jury, 222. 
 
 travelling at night not, per se, 231. 
 
 effect of knowledge of defect, 232. 
 
 travelling when vision is defective not, per se, 237. 
 
 travelling when intoxicated not, per se, 238. 
 
 travelling when powers of locomotion are defective not, per se, 239. 
 
 application of doctrine of, to cases of drains and sewers, 272, n. 
 
 effect of, of owner of property injured or destroyed by mob, 297. 
 
INDEX. 323 
 
 References are to pages. 
 
 CORNICE, 
 
 an insecure, as defect in highway, 153. 
 CROSSING, 
 
 travellers not bound to cross street only at, 225, n. 
 CULVERT, 
 
 obstruction of a watercourse by, 284. 
 
 nature of the duty to determine the size of, 284. 
 
 the capacity of, 285, n. 3. 
 
 duty to maintain, 285, n. 4. 
 CUSTOM, 
 
 effect of, upon duty to repair highways, 181. 
 
 D. 
 DAM, 
 
 care necessary when watercourse is obstructed by, 288. 
 DAMNUM ABSQUE INJURIA. (See Consequential Damages.) 
 DARKNESS OF NIGHT, 
 
 travelling upon highway in, not negligence ^er se, 281. 
 DECEIT, 
 
 municipal corporations may be liable for, 53, n. 
 DEDICATION, 
 
 highways established by, 127. 
 DEFECT IN THE HIGHWAY, 
 
 what constitutes, 137. 
 
 to be, conditions need not endanger all modes of travel, 138. 
 
 whether conditions constitute, is a question of fact, 138. 
 
 opinion of municipal officers as to what is, immaterial, 140. 
 
 cause of, 140. 
 
 effect of absence of control over cause of, 141. 
 
 must be in travelled path, 142. 
 
 or near thereto, 144. 
 
 when, is due to plan of construction, 146. 
 
 failure to furnish light as, 148. 
 
 useful and necessary articles as, 149. 
 
 unguarded excavations as, 150. 
 
 insecure projections as, 152. 
 
 insecure structures adjacent to street as, 154. 
 
 illegal use of street as, 155. 
 
 objects that frighten horses as, 156. 
 
 snow and ice as, 160. 
 
 must be the proximate cause of the injury, 165. 
 
 whether, must be the sole cause of the injury, 166. 
 
 statement of, in notice of the accident, 246. 
 DEFECTIVE VISION, 
 
 travelling on highway with, not negligence per se, 237. 
 
324 INDEX. 
 
 References are to pages. 
 
 DE JURE OFFICERS, 
 
 municipal corporations only liable for acts of, 28. 
 DEVIATION FROM TRAVELLED PATH, 
 
 general effect of, l42. 
 
 effect when necessary, 144. 
 
 when, is necessary to pass another team, 145. 
 
 when due to absence of visible boundaries, 146. 
 
 this rule as to, does not apply to sidewalks, 146, n. 1. 
 DILAPIDATION, 
 
 duty when, exists in bridge, 89. 
 
 duty when, exists in streets and highways, 119, 175. 
 
 notice of, in them must be shown, 181, 200. 
 
 duty when, exists in drains and sewers, 265. 
 
 notice of, in them must be shown, 287. 
 DISCHARGE OF DRAINAGE, 
 
 liability where, amounts to a taking of private property, 268. 
 
 liability where, creates a nuisance, 269. 
 DISCONTINUANCE OF DRAINS OR SEWERS, 
 
 nature of the duty involved in, 257, 270. 
 
 where the, is done in negligent manner, 271. 
 DISCONTINUANCE OF HIGHWAYS, 
 
 what constitutes a, 135. 
 
 whether acts done constitute a, is a question of fact, 136. 
 
 use of barbed wire to bring about, 136, n. 1. 
 DIVERSION, 
 
 of waters of natural stream, 286. 
 DOCKS, (See Wharves.) 
 
 liabilities of municipal corporations as owners of, 64. 
 DRAINAGE, 
 
 duty to provide, not absolute, 256. 
 
 when, must be provided, 258. 
 
 liability growing out of plan of, 259. 
 DRAINS AND SEWERS, 
 
 liabilities of municipal corporations as to, 256-272. 
 
 no liability for failure to provide, 14, 36, 256. 
 
 unless made necessary by acts of corporation, 258. 
 
 construction of streets imposes no obligation to build, 258. 
 
 liability growing out of plans of, 259. 
 
 Indiana rule as to liability for plans of, 260. 
 
 where construction of, results in direct injury to private property, 
 261. 
 
 where construction of, results in creation of nuisance, 261. 
 
 capacity of, 261. 
 
 liability growing out of work of constructing, 262. 
 
 rule in New Jersey, 263, n. 
 
 lack of means properly to construct, no defence, 264, n. 
 
INDEX. 325 
 
 References are to pages. 
 
 DRAINS AND S^WEKS,— continued. 
 
 where work of constructing, is negligently prolonged, 264, n. 
 measure of damages due to construction of, 264, n. 
 liability growing out of failure to repair, 264. 
 by whom, are built not material, provided, 266. 
 liability where natural streams are adopted as, 266, n., 282. 
 liability where injury is due to extraordinary flood, 266, n. 
 notice of obstruction or dilapidation of, must be shown, 267. 
 liability growing out of discharge of, 268, 269. 
 abandonment or discontinuance of, 270. 
 
 DRIVER, 
 
 negligence of, imputed to passenger, 229. 
 
 DRY ROT, (See Natural Decay.) 
 
 duty to discover, in bridge timbers, 88, 89, n. 
 
 DUE DILIGENCE, 
 
 what is, of township officers in care of bridges, 81, n. 3. 
 DUE FORM OF LAW, 
 
 highways established in, 129. 
 
 failure to establish highways in, how far a defence, 131. 
 DUTIES OF PUBLIC CORPORATIONS, 
 
 the two classes of, 10. 
 
 distinction between two classes of, 10. 
 
 legislative and judicial, 11. 
 
 ministerial, 17. 
 
 rule where, are imposed on specified officers, 32. 
 
 positive statutory, 49, 50. 
 
 DUTY AS TO HIGHWAYS, 
 
 negligence the basis of the liability as to highways, 176. 
 
 nature of the, 176. 
 
 not avoided by delegation, 176. 
 
 extent of, 177. 
 
 effect of custom upon, 181. 
 
 how far, is dependent on notice, 181. 
 
 effect of nature of use of highway upon, 182. 
 
 effect of extent of use of highway upon, 183. 
 
 E. 
 
 EASEMENTS, 
 
 liability of municipal corporations for interference with, 53. 
 
 EMPLOYEE OF CORPORATION. (See Common Employment ; 
 Officers and Agents.) 
 
 ENACTMENT OF ORDINANCES, 
 nature of duty involved in, 313. 
 no liability for failure to perform duty as to, 36, 313. 
 
326 INDEX. 
 
 References are to pages. 
 
 ENFORCEMENT OF ORDINANCES, 
 
 no liability for injuries due to, 36, 39, 314. 
 
 nor for injuries due to a lack of, 314. 
 EVIDENCE OF DEFECT, 
 
 experiences of others at same place competent, 250. 
 
 Massachusetts rule as to this point, 251. 
 
 existence of similar defects elsewhere not competent, 252. 
 
 state of highway at other times, when competent, 252. 
 EVIDENCE OF NOTICE, 
 
 resolutions and reports competent, 253. 
 
 experiences of others at same place competent, 254. 
 
 EXCAVATIONS, 
 
 unguarded, as defects in highway, 150. 
 not material by whom unguarded, were made, 152. 
 duty to erect barriers about, in highway, 195. 
 duty to erect barriers about, near highway, 196. 
 liability as to, when barriers have been removed, 197. 
 
 EXPENSE, 
 
 effect of the, of maintaining highway on duty to repair, 185. 
 
 EXTENT OF HIGHWAYS, 
 
 effect of, on duty to repair, 184. 
 
 F. 
 
 FALSE IMPRISONMENT, 
 
 no liability for, by police officers, 38. 
 
 even if, while enforcing void ordinance, 89, n. 
 FEE INLAND, 
 
 liability as to highways not affected by ownership of, 134. 
 
 FELLOW-SERVANT DOCTRINE. (See Common Employment.) 
 
 FILED, 
 
 requirement that notice of accident shall be, 249. 
 
 FIRE, 
 
 no liability for failure to supply water to protect from, 13. 
 no liability for failure to supply apparatus to protect from, 13, 36. 
 no liability for property destroyed to prevent spread of, 300. 
 unless created by statute, 301 . 
 
 FIRE APPARATUS, 
 
 no liability for failure to supply, 13, 36. 
 nor for negligence in the use of, 14. 
 nor for failure to keep in repair, 14. 
 
 FIREMEN, 
 
 no corporate liability for torts of, 43. 
 even if engaged in a private duty, 45. 
 
INDEX. 327 
 
 Befereuces are to pages. 
 
 FLOOD, 
 
 where injuries from drains or sewers are due to extraordinary, 
 266, n. 
 
 FOOTWAY, 
 
 no duty to furnish railings between, and carriage-way, 86, n. 
 
 G. 
 
 GAS-WORKS, 
 
 liability of municipal corporations as owners of, 68. 
 
 GUARDIAN, 
 
 effect of negligence of, on infant's right of action, 228. 
 
 H. 
 
 HEALTH, 
 
 nature of duty to preserve public, 309. 
 
 no corporate liability for torts of health officers, 41, 309. 
 HEALTH OFFICERS, 
 
 no corporate liability for torts of, 41, 309. 
 
 application of rule of immunity to employees of, 42, n. 
 
 HEIGHT OP BRIDGES, 
 
 liability as to, above highway, 84. 
 
 HIGHWAYS, (See Streets and Highways.) 
 liability of municipal corporations as to, 96-255. 
 liability growing out of construction of, 96-105. 
 liability growing out of maintenance of, 105-241. 
 notice of accidents upon, 241-249. 
 evidence relating to, 250-255. 
 
 HORSES, 
 
 objects that frighten, as defects in highway, 156. 
 
 must be calculated to frighten ordinary, 157. 
 
 rule when object frightening, is rightfully in highway, 158. 
 
 rule in Maine and Michigan as to objects frightening, 158. 
 
 rule in Massachusetts and South Carolina as to object frightening, 
 
 159. 
 runaway, as concurring causes of injury, 171. 
 general rule as to runaway, 172. 
 Massachusetts rule as to runaway, 173. 
 HOSPITAL OFFICERS, 
 
 no corporate liability for torts of, 41, 309. 
 
 application of rule of immunity to employees of, 42, n. 
 
328 INDEX. 
 
 Beferences are to pages. 
 
 ICE, (See Snow and Ice.) 
 
 duty when highway is covered with, 161, n. 1. 
 
 liability where, is smooth, 161. 
 ILLEGAL USE, 
 
 of highway as a defect therein, 155. 
 IMPUTED NEGLIGENCE, 
 
 in case of parent and child, 228. 
 
 in case of guardian and ward, 228. 
 
 in caee of driver and passenger, 229. 
 
 INDEPENDENT CONTRACTOR, 
 
 when no corporate liability for torts of, 54. 
 
 rule when incompetent, is selected, 55. 
 
 when a corporate liability for torts of, 55. 
 
 rule where negligence of, causes defects in highway, 56. 
 
 where, is employed to abate a nuisance, 56, n. 
 
 where, is employed to repair bridge, 87. 
 INDIANA, 
 
 rule in, as to defects in plans of public improvements, 14, 15, 260. 
 
 INFANCY, 
 
 effect of, on question of due care, 227. 
 INFANT, 
 
 degree of care exacted from, 227. 
 
 effect of negligence of parents of, 228. 
 
 effect of negligence of guardian of, 228. 
 INFRINGEMENT OF PATENT, 
 
 liability of quasi corporations for, 8, n. 
 
 liability of municipal corporations for, 48, n. 
 INJURED PERSON, (See Tkavellbr on the Highway.) 
 
 must show special damage from defect in highway, 119. 
 
 what is such special damage, 120. 
 
 must be making proper use of highway, 121. 
 INJURIES RECEIVED, 
 
 statement of, in notice of accident, 247. 
 INJURY OR DESTRUCTION OF PRIVATE PROPERTY, 
 
 by mobs or unlawful assemblages of people, 290-299. 
 
 by corporate officers to prevent spread of fire, 300-302. 
 
 by corporate officers to abate public nuisance, 303. 
 INSECURE PROJECTIONS, 
 
 as defects in highway, 152. 
 INSECURE STRUCTURES, 
 
 adjacent to highway as defects therein , 154. 
 INSPECTION, 
 
 duty and liability as to, of bridges, 88. 
 
INDEX. 329 
 
 Beferences are to pages. 
 
 INSURERS, 
 
 municipal corporations generally are not, 19. 
 
 are not, of condition of property owned by them, 61. 
 
 are not, of condition of their bridges, 81. 
 
 are not, of condition of their highways, 177. 
 
 are not, of condition of their drains and sewers, 265. 
 INTERFERENCE WITH EASEMENTS, 
 
 liability of municipal corporations for, 53. 
 INTERNAL DECAY, (See Natural Decay.) 
 
 duty to discover, in bridge timbers, 88, 89, n. 
 INTOXICATION, 
 
 efiect of, upon question of contributory negligence, 238. 
 
 of police officer gives no right of action, 38, n. 
 INVALID ORDINANCE, 
 
 no liability for enforcing, 39, n. 
 IOWA, 
 
 rule in, as to liability of quasi corporations for defects in county 
 bridges, 4, n. 1, 70, n. 4, 107. 
 
 J. 
 JUDICIAL DUTIES, 
 
 of municipal corporations, 11. 
 
 general rule as to liability relative to, 13, 36. 
 
 reason for rule of immunity as to, 16. 
 
 officers or agents performing, 35. 
 
 duty as to constructing highways is one of, 14, 36, 96. 
 
 duty to provide drainage is one of, 256. 
 
 duty to enact ordinances is one of, 313. 
 
 K. 
 
 KNOWLEDGE OF DEFECTS, (See Notice.) 
 effect of traveller's, in a bridge, 75. 
 effect of traveller's, in highway, 232. 
 
 L. 
 
 LAMENESS, 
 
 effect of, upon question of contributory negligence, 239. 
 LEGISLATIVE AND JUDICIAL DUTIES, 
 
 of municipal corporations, 11. 
 
 general rule of immimity as to, 13, 36. 
 
 reason for this rule as to, 16. 
 
 officers and agents performing, 35. 
 
 duty to provide highways is one of, 14, 36, 96. 
 
 duty to provide drainage is one of, 256. 
 
 so duty to enact ordinances, 313. 
 
330 INDEX. 
 
 Beferences are to pages. 
 
 LESSEE, 
 
 liability of municipal corporations as, of wharf, 65, n. 4. 
 
 LIABILITY OF PUBLIC CORPORATIONS, 
 
 general rule of, in case of quasi corporations, 4, 5. 
 
 general rule of, in case of municipal corporations proper, 9. 
 
 basis of, in case of municipal corporations proper, 20. 
 
 limited by means for performance, 21. 
 
 for ultra vires torts, 24. 
 
 for acts of their officers and agents, 26-57. 
 
 as owners of property, 58-69. 
 
 relative to bridges, 70-95. 
 
 relative to highways, 96-255. 
 
 relative to drains and sewers, 256-272. 
 
 relative to waters, 273-289. 
 
 for private property injured or destroyed, 290-304. 
 
 relative to nuisances, 305-308. 
 
 relative to public health, charities, and schools, 309-812. 
 
 relative to ordinances, 313-316. 
 LICENSEES, 
 
 liability of municipal corporations for torts of, 57, n. 
 
 liability where defects in highway are created by, 187. 
 
 extent of duty to oversee acts of, 188. 
 
 rule where corporation has no authority to grant license to, 189. 
 
 where acts done by, are dangerous, 190. 
 LIGHTS, 
 
 failure to furnish, in streets, not a defect, 148. 
 
 must be supplied to guard dangerous place, 149, 199. 
 
 the kind of, that must be supplied, 199. 
 
 failure of traveller to carry, in night not negligence per se, 231. 
 LIMITATION OF TIME, 
 
 for bringing actions against municipal corporations, 23, n., 293, n. 
 LOSS OF SERVICES, 
 
 no corporate liability for, in New England, 120, n. 2. 
 
 M. 
 
 MAINE, 
 
 rule in, as to object frightening horses, 158. 
 
 rule in, as to concurrent causes of accident, 166, 167. 
 MAINTENANCE OF BRIDGES, 
 
 duty of municipal corporations as to, 89. 
 
 duty as to, conditional upon means for performance, 90. 
 
 MAINTENANCE OP HIGHWAYS, (See Stkeets and High- 
 ways.) 
 duties and liabilities of municipal corporations as to, 105-241. 
 
INDEX. 331 
 
 References are to pages. 
 
 MARKET PLACES, 
 
 liability of municipal corporations as owners of, 63. 
 MARYLAND, 
 
 rule in, as to liability of quasi corporations for defects in high- 
 ways, 4, n. 1, 70, u. 4, 107. 
 MASSACHUSETTS, 
 
 rule in, as to objects frightening horses, 159. 
 
 rule in, as to concurrent causes of accident, 166, 167. 
 
 rule in, as to runaway horses, 173. 
 
 rule in, as to competency of experiences of other persons to show 
 defect in highway, 251. 
 
 rule in, by statute as to snow and ice as a defect, 164, n. 1. 
 MEANS FOR PERFORMANCE, 
 
 liability of municipal corporations limited by, 21. 
 
 extent of limitation of liability by, 21, 22. 
 
 rule as to, as applied to bridges, 90. 
 
 effect of lack of, on duty to repair highways, 186, 240. 
 
 duty as to highways when lack of, exists, 186. 
 
 lack of, no defence for failure to properly construct highways, 22. 
 
 nor for failure to properly construct drains and sewers, 264, n. 
 MICHIGAN, 
 
 rule in, as to objects frightening horses, 158. 
 
 rule in, as to snow and ice as a defect, 164, n. 1. 
 
 MINISTERIAL DUTY, 
 
 what is, 17. 
 
 general rule as to liability for, 17. 
 
 officers and agents engaged in performing, 47, 49. 
 
 work of building highways is, 103. 
 
 work of maintaining highways is, 176. 
 
 work of building drains and sewers is, 262. 
 
 •work of maintaining drains and sewers is, 264. 
 
 duty to determine size of culvert is, 284. 
 
 work of building culverts is, 284. 
 MOB, (See Unlawful Assemblage.) 
 
 liability of municipal corporations for acts of, 290-299. 
 MUNICIPAL CORPORATIONS PROPER, 
 
 distinction between, and quasi corporations, 2, 3. 
 
 characteristics of, 2, 8. 
 
 functions of, 8. 
 
 general rule as to liabilities of, 9. 
 
 duties of, in general, 10. 
 
 legislative and judicial duties of, 11. 
 
 are not insurers, 1 9. 
 
 negligence generally the basis of the liabilities of, 20. 
 
 duty of, to select competent officers and agents, 28, 37, 39, n. 
 
 common law liability of, for defects in highways, 108. 
 
332 INDEX. 
 
 Befereuces are to pages. 
 
 ]sr. 
 
 NATURAL DECAY, 
 
 duty to discover, in bridge timbers, 88, 89, n. 
 
 municipal corporations chargeable with notice that wooden walks 
 are subject to, 213, n. 1. 
 
 so also as to sewer timbers, 268, n. 
 NATURAL STREAM, 
 
 duty when a, is used as a sewer, 266, n., 282. 
 
 right to use the waters of, 282. 
 
 no right to stop up channel of, 283. 
 
 obstruction of waters of, 283, 284. 
 
 diversion of waters of, 286. 
 
 pollution of waters of, 287. 
 NEGLIGENCE, 
 
 generally basis of liabilities of municipal corporations, 20. 
 
 basis of liability for defects in their bridges, 82. 
 
 basis of liability for defects in their highways, 119, 175. 
 
 basis of liability for defects in their drains and sewers, 265. 
 NEW JERSEY, 
 
 rule in, as to liability growing out of work of building drains and 
 sewers, 263, n. 
 NEW USE OF BRIDGE, 
 
 no obligation to provide for, 76. 
 
 making a, 76. 
 
 no liability for injuries received while making, 77. 
 
 basis of this rule of immunity, 77. 
 
 what is making, a question of fact, 78. 
 NOTICE OP ACCIDENT, 
 
 effect of statutory provision requiring the giving of, 241. 
 
 the sufficiency of, 243. 
 
 statement of time of injury in, 244. 
 
 statement of place of injury in, 245. 
 
 statement of defect in, 246. 
 
 statement of cause of injury in, 247. 
 
 statement of injuries received in, 247. 
 
 statement of claim of damages in, 248. 
 
 must be given within time limit, 248. 
 
 unless excuse for not so giving, 248, n. 3. 
 
 service of, upon whom made, 249. 
 
 service of, manner of making, 249. 
 NOTICE OF DEFECTS IN BRIDGES, 
 
 necessity of showing, 91. 
 
 when, need not be shown, 91. 
 
 to whom, must be brought home, 92. 
 
 what is actual, 93. 
 
INDEX. 333 
 
 References aie to pages. 
 
 NOTICE OP DEFECTS IN BRIDGES — continued. 
 when actual, is necessary, 93. 
 constructive, generally suflBcieut, 93. 
 the duty after receiving, 94. 
 
 NOTICE OF DEFECTS IN DRAINS AND SEWERS, 
 liability for failure to repair dependent upon, 267. 
 constructive, may be sufficient, 267. 
 when, need not be shown, 268. 
 
 NOTICE OF DEFECTS IN HIGHWAYS, 
 
 how far duty to repair dependent upon, 181. 
 
 when, must be shown, 200. 
 
 when, need not be shown, 202. 
 
 rule in West Virginia as to, 203, n. 2. 
 
 whether necessary where defect is created by licensee, 203. 
 
 to whom, must be brought home, 204. 
 
 to policemen, 206. 
 
 to de facto officer sufficient, 207. 
 
 what is actual, 207. 
 
 what is constructive, 208. 
 
 facts from which constructive, may be inferred, 209. 
 
 constructive, when defect is not continuous, 212, n. 3. 
 
 growing out of natural tendency of wood to decay, 213, n. 1. 
 NUISANCES, 
 
 liabilities of municipal corporations relative to, 305-308. 
 
 no liability for failure to exercise power to abate, 13, 36, 306. 
 
 employing independent contractor to abate, no defence, 56, n. 
 
 where construction of sewers results in creating, 261, 269. 
 
 creation of, by pollution of natural stream, 287. 
 
 liability for private property destroyed to abate, 303. 
 
 liability for creating or maintaining public, 305. 
 
 liability for creating and maintaining private, 305. 
 
 exception to general rule of liability as to private, 306. 
 
 liability for not abating public, on private premises, 306. 
 
 liability for not abating private, created by third parties on prem- 
 ises under corporate control, 307. 
 
 liability for not abating private, on private premises, 308. 
 
 0. 
 
 OBJECTS CAUSING FRIGHT TO HORSES, 
 as defects in the highway, 156. 
 must be calculated to frighten ordinary horses, 157. 
 rule when, are rightfully in highway, 158. 
 rule as to, in Maine and Michigan, 158. 
 rule as to, in Massachusetts and South Carolina, 159. 
 
334 INDEX. 
 
 References are to pages. 
 
 OBJECTS RIGHTFULLY IN HIGHWAY, 
 when, constitute a defect therein, 149. 
 what notice must be shown as to, 208. 
 
 OBSTRUCTIONS, 
 
 duty to keep drains and sewers free from, 265. 
 
 notice of, must be shown, 267. 
 
 where, are placed in a natural stream, 283, 284. 
 
 OFFICERS AND AGENTS, 
 
 liabilities of municipal corporations for acts of, 26-57. 
 
 for what, corporations are responsible, 27. 
 
 effect of method of appointing, 27. 
 
 must be officers de jure, 28. 
 
 competency of, 28, 37. 
 
 unauthorized acts of, 29. 
 
 ultra vires acts of, 81. 
 
 liability where duty is imposed upon, and not on corporation, 32. 
 
 nature of the duties of, 33. 
 
 when common employment a defence to actions by, 56. 
 
 when not a defence, 57. 
 
 charged with duties relating to public health, charities, schools, 
 309-312. 
 OHIO, 
 
 rule in, as to consequential damages due to construction of high- 
 ways, 100. 
 
 rule in, as to snow and ice as a defect, 164, n. 1. 
 OPENING OF HIGHWAY, 
 
 when, to public use is complete, 131. 
 
 no formal, is necessary, 132. 
 
 ORDINANCES, 
 
 liabilities of municipal corporations relative to, 313-316. 
 
 nature of the duty to enact, 313. 
 
 no liability for failure to enact, 36, 313. 
 
 no liability for failure to enforce, 314. 
 
 no liability for enforcement of invalid, 39 n. 
 
 no liability for damages due to improper enforcement of, 36, 314. 
 
 no liability for damages done by police in enforcing, 39. 
 
 effect of acting in violation of, when injured on highway, 125. 
 
 no liability for injuries due to suspension of, 315. 
 OWNERS OF PROPERTY, 
 
 liabilities of municipal corporations as, 58-68. 
 
 public corporations as, 58. 
 
 held in their public capacity, 59. 
 
 dangerous to children, 60, n. 
 
 corporations not insurers of condition of their property, 61. 
 
 liability as owners of city or town halls, 61. 
 
 liability as owners of market places, 63. 
 
INDEX. 335 
 
 References are to pages. 
 
 OWNERS OP TROVEB.TY, — continued. 
 
 liability as owners of wharves, piers, or docks, 64. 
 
 liability as owners of water-works, 66. 
 
 liability as owners of gas-works, 68. 
 OWNERSHIP OF FEE, 
 
 liability as to highways not affected by, 134. 
 
 P. 
 PATENT, 
 
 liability of quasi corporations for infringement of, 8, n. 
 
 liability of municipal corporations for infringement of, 48, n. 
 PENNSYLVANIA, 
 
 rule in, as to liability of quasi corporations for defects in county 
 bridges, 4, 70, 107. 
 PIERS, (See Wharves.) 
 
 liabilities of municipal corporations as owners of, 64. 
 PLACE OF ACCIDENT, 
 
 statement of, in notice of accident, 245. 
 PLAN OF CONSTRUCTION, 
 
 general rule as to liability for defects in, 14, 36. 
 
 rule in Indiana as to, 14, 15. 
 
 liability for defects in bridges due to, 83. 
 
 liability for defects in highways due to, 146. 
 
 liability for defects in drains and sewers due to, 259. 
 
 liability for insufficient capacity of culverts due to, 284. 
 
 liability for insufficient capacity of artificial channels due to, 286. 
 
 equity will not interfere with, by injunction, 259, n. 1. 
 PLAYING IN HIGHWAY, 
 
 effect of, where liability is statutory, 122, 123. 
 
 effect of, where liability is at common law, 124. 
 POLICE OFFICERS, 
 
 nature of duties performed by, 37. 
 
 generally no corporate liability for torts of, 38. 
 
 even though intoxicated, 38, n. 3. 
 
 cases where liability for acts of, was imposed, 39, n. 
 
 where defects in highway are created by, 40, n. 
 POLLUTION OF WATERS, 
 
 of natural stream, 287. 
 
 when acting under valid authority, 288. 
 
 liability of quasi corporations for, 288, n. 
 PREMISES, (See Owners of Property.) 
 
 maintaining, dangerous to children, 60, n. 
 PRESCRIPTION, 
 
 highways established by, 128. 
 
 period of user necessary to establish highways by, 128, n. 2. 
 
336 INDEX, 
 
 References are to pages. 
 
 PRESUMPTION', 
 
 when traveller can act on, of safety of bridge, 74. 
 
 when he can act on, of safety of highway, 224. 
 
 when he can act on, that defect has been remedied, 227. 
 PRISON OFFICERS, 
 
 no corporate liability for torts of, 41. 
 PRIVATE DUTIES, (See Ministerial Duties.) 
 
 liability for acts of officers and agents performing, 35, 47-50. 
 PRIVATE PERSONS, 
 
 effect when, assume duty to keep highway in repair, 119. 
 
 effect of construction of portion of highway by, 132. 
 
 effect of construction of drains and sewers by, 266. 
 
 liability for injury or death of, by acts of mob, 299, n. 
 PRIVATE PROPERTY, 
 
 no liability for failure of police to protect, 39. 
 
 nor for, destroyed by police, 39. 
 
 nor for, destroyed by firemen, 44. 
 
 liability where construction of sewers results in a taking of, 261, 
 268. 
 
 liability where surface water is cast upon, in a body, 278. 
 
 liability for injury or destruction of, by mob, 290-299. 
 
 liability for destruction of, to prevent spread of fire, 300-302. 
 
 liability for destruction of, to abate nuisance, 303. 
 PRIVATE WAY, 
 
 liability where, is adopted as highway, 133, n. 1. 
 
 erection of barriers to protect persons entering highway from, 197. 
 PROJECTIONS, 
 
 insecure, as defects in highway, 152. 
 PROPERTY OWNERS, (See Owners of Property.) 
 
 liabilities of municipal corporations as, 58-68. 
 PROXIMATE CAUSE, 
 
 defect in bridge must be, of accident, 79. 
 
 rule where there is more than one, 79. 
 
 so defect in highway must be, of accident, 165. 
 
 rule where there is more than one, 166. 
 PUBLIC CELEBRATIONS, 
 
 liability for injuries received in course of, 47, n. 
 PUBLIC DUTIES, (See Legislative and Judicial Duties.) 
 
 liability for acts of officers and agents performing, 33, 34-45. 
 
 Q. 
 
 QUASI CORPORATIONS, 
 
 distinction between, and municipal corporations proper, 2, 3. 
 characteristics of, 2. 
 functions of, 3. 
 
INDEX. 337 
 
 References are to pages. 
 
 QUASI CORPORATIONS, — continued. 
 general rule as to -liability of, 4. 
 when, may become liable, 5. 
 
 common law rule as to liability of, for defects in highways, 105- 
 rule as to this liability in Iowa, Maryland, and Pennsylvania, 4, 
 
 107. 
 no liability upon, for pollution of natural stream, 288, n. 
 
 R. 
 
 RAILINGS ALONG HIGHWAY, 
 
 duty to erect, 190. 
 
 for what purposes not bound to erect, 191. 
 test of necessity for, 192. 
 whether necessary, is question of fact, 193. 
 kind of, required, 195. 
 RAILINGS UPON BRIDGES, 
 duty to furnish, 85. 
 kind of, that must be provided, 85. 
 whether ought to be provided, is question of fact, 86. 
 not bound to furnish, between footway and carriageway, 86, n. 
 
 RAILROADS WITHIN HIGHWAY, 
 
 effect of location of, on duty to keep in repair, 186. 
 
 RATIFICATION, 
 
 of unauthorized acts of officers and agents, 29, 30. 
 
 limits of power of, 31, 32. 
 
 of torts of police, impossible, 40. 
 REPAIRS ON BRIDGES, 
 
 duty to make, 89. 
 
 duty to make, limited by means for making, 90. 
 
 duty to make, dependent on notice of defect, 91. 
 
 REPAIRS ON HIGHWAYS, 
 
 effect of making, on questions of liability, 129. 
 effect of making, by statute in Maine and Massachusetts, 130, n. 1. 
 negligent omission to make, basis of liability as to highways, 175. 
 extent of duty to make, 177, 178. 
 effect of custom on duty to make, 181. 
 how far duty to make, is dependent on notice, 181. 
 effect of nature of use of highway on duty to make, 182. 
 effect of extent of use of highway on duty to make, 183. 
 effect of extent of highways on duty to make, 184. 
 effect of expense of maintaining on duty to make, 185. 
 effect of lack of means on duty to make, 186, 240. 
 effect of location of other roads within, on duty to make, 186. 
 effect of licensing creation of defects on duty to make, 187. 
 
 22 
 
338 INDEX. 
 
 References are to pages. 
 
 REPAIRS IN DRAINS AND SEWERS, 
 
 duty to make, 264. 
 
 duty to make, dependent on notice, 267. 
 RHODE ISLAND, 
 
 rule in, as to snow and ice as defect, 165, n. 
 RUNAWAY HORSE, 
 
 as a concurring cause of accident, 171. 
 
 general rule as to, 172. 
 
 Massachusetts rule as to, 173. 
 
 SCHOOLS, 
 
 nature of duty to maintain public, 309. 
 
 no corporate liability for torts of school oflScials, 311. 
 SERVICE, 
 
 of notice of accident, 249. 
 
 upon whom to be made, 249. 
 
 manner of, 249. 
 SEWAGE, 
 
 nmsances created by, 261, 269, 287. 
 
 taking of private property by carting, upon, 268, 278. 
 
 SEWERS, (See Drains and Sewers.) 
 
 no liability growing out of failure to construct, 14, 36. 
 liabilities of municipal corporations relative to, 256-272. 
 
 "SHALL BE FILED," 
 
 requirement that notice of accident, 249. 
 SIC UTERE TUO NON LMDAS ALIENO, 
 
 application of maxim, to municipal corporations, 59. 
 
 SIDEWALKS, 
 
 definition of, 126, n. 1. 
 
 are part of highway, 126, n. 1. 
 
 rule as, to deviation where no visible boundaries does not apply 
 to, 146, n. 1. 
 SNOW AND ICE, 
 
 projecting over sidewalk as defect therein, 153. 
 
 in highway as defect therein, 160. 
 
 liability for failure to remove drifts, 160, n. 3. 
 
 duty when highway is covered with ice, 161^ n. 1. 
 
 rule of liability where, is smooth, 161. 
 
 rule of liability where, is rough, 163. 
 
 rule as to, by statute in Massachusetts, 164, n. 1. 
 
 rule as to, in Michigan, 164, n. 1. 
 
 rule as to, in Ohio, 164, n. 1. 
 
 rule as to, by statute in Rhode Island, 165, n. 
 
INDEX. 339 
 
 References are to pages. 
 
 SOLE CAUSE OF INJURY, 
 
 whether defect in highway must be, 166. 
 
 rule as to, in Maine and Massachusetts, 166, 167. 
 
 SOUTH CAROLINA, 
 
 rule in, as to liability for objects frightening horses, 159. 
 
 SPREAD OP FIRE, 
 
 no common law liability for property destroyed to prevent, 300. 
 liability therefor created by statute, 301. 
 
 STANDARD OF CARE, 
 
 exacted from adults on highway, 221. 
 applied to infantson highway, 227. 
 
 STREET COMMISSIONERS, 
 
 rule of liability for torts of, 47, n. 
 
 STREET CROSSING, 
 
 traveller not bound to cross street at, 225, n. 
 
 STREET RAILWAYS WITHIN HIGHWAY, 
 effect of location of, on duty to repair, 186. 
 
 STREETS AND HIGHWAYS, 
 
 liabilities of municipal corporations relative to, 96-255. 
 
 1. Liabilities growing out of construction of, 96-105. 
 
 no liability for failure to construct, 14, 36, 96. 
 
 nature of duty to construct, 96. 
 
 liability for consequential damages due to construction of, 
 
 97. 
 Ohio rule as to liability for such damages, 100. 
 where work of constructing, is done negligently, 103. 
 where work of constructing, results in taking private property, 
 
 103. 
 where work of constructing, fails to follow authority given, 
 
 105. 
 construction of, involves no duty to build drains or sewers, 
 
 258. 
 
 2. Liability growing out of the maintenance of, 105-241. 
 
 A. The liability, 
 
 common law rule as to, of quasi corporations, 105. 
 
 common law rule as to, of municipal corporations, 108. 
 
 theory of, at common law, 111. 
 
 created by statutory provision, 116. 
 
 source of, at common law, 118. 
 
 nature and extent of, at common law, 119. 
 
 B. The injured person, 
 
 must show special damage, 119. 
 must be making proper use of highway, 121. 
 when, is in service of defendant corporation, 124. 
 when, is acting in violation of law, 125. 
 
340 INDEX. 
 
 Beferences are to pages. 
 
 STREETS AND RIGHW AYS — continued. 
 
 C. The highway, 
 
 place of accident must be, 126. 
 
 established by dedication, 127. 
 
 established by prescription, 128. 
 
 established in due form of law, 129. 
 
 opening of, to public use, 131. 
 
 liability as to parts of, constructed by private persons, 
 
 132. 
 liability as to, not affected by ownership of fee, 134. 
 width of, 134. 
 discontinuance of, 135. 
 
 D. The defect, 
 
 what constitutes, 137. 
 
 cause of, 140. 
 
 must be in travelled part, 142. 
 
 when, is due to plan of construction, 146. 
 
 failure to light highway as, 148. 
 
 useful and necessary articles as, 149. 
 
 unguarded excavation as, 150. 
 
 insecure projection as, 152. 
 
 insecure structure adjacent to highway as, 154. 
 
 illegal use of highway as, 155. 
 
 objects frightening horses as, 156. 
 
 snow and ice as, 160. 
 
 E. Relation of defect to injury, 
 
 defect must be proximate cause of injury, 165. 
 
 whether it must be the sole cause, 166. 
 
 runaway horse as concurring cause, 171. 
 P. The duty, 
 
 is basis of liability as to highways, 175. 
 
 nature of, 176. 
 
 not avoided by delegation, 176. 
 
 extent of, 177. 
 
 how far performance of, is dependent on notice, 181. 
 
 effect of nature of use of highway on, 182. 
 
 effect of extent of use of highway on, 183. 
 
 effect of extent of highways on, 184. 
 
 effect of expense of maintaining highways on, 185. 
 
 effect of laclc of means to repair on, 186. 
 
 efiect of location of other roads within highway on, 186. 
 
 effect of licensing creation of defects on, 187. 
 G. The duty as to railings, barriers, and lights, 
 
 erection of railings, 190. 
 
 test of necessity of railings, 192. 
 
 kind of railing required, 195. 
 
 barriers to guard excavation or to close highway, 195. 
 
INDEX. 341 
 
 References are to pages. 
 
 STREETS AND mGRW AYS,— continued. 
 
 or to protect travellers entering highway from private 
 ways, 197. 
 
 kind of barriers required, 198. 
 
 lights, 199. 
 H. Notice of the defect, 
 
 must generally be shown, 200. 
 
 when, need not be shown, 202. 
 
 where defect is created by licensee, 203. 
 
 to whom, to be brought home, 204. 
 
 actual, 207. 
 
 constructive, 208. 
 I. Contributory negligence, 
 
 application of doctrine of, 220. 
 
 what traveller may assume, 224. 
 
 effect of infancy on doctrine of, 227. 
 
 efiect of, of parents or guardian of infant, 228. 
 
 effect of, of third person, 229. 
 
 effect of travelling in darkness, 231. 
 
 effect of knowledge of existence of defect, 232. 
 
 effect of defective vision, 237. 
 
 effect of intoxication, 238. 
 
 effect of defective powers of locomotion, 239. 
 
 application of maxim volenti nonjit injuria, 239. 
 J. Lack of funds, 
 
 as a defence, 240. 
 
 3. Notice of the accident upon, 241-249. 
 
 effect of provision requiring the giving of, 241. 
 sufficiency of, 243. 
 
 statement of time of accident in, 244. 
 statement of place of accident in, 245. 
 statement of defect in, 246. 
 statement of cause of accident in, 247. 
 statement of injuries received in, 247. 
 statement of claim of damages, 248. 
 must be given within time limit, 248. 
 service of, 249. 
 
 4. Evidence relating to accidents upon, 250-255. 
 
 experiences of others competent, to show defect, 250. 
 
 except in certain states, 251. 
 
 existence of similar defects in other places not competent, 
 
 to show defect, 252. 
 state of highway at other times competent, to show defect, 
 
 252. 
 resolutions and reports competent, to show notice, 253. 
 experiences of others competent, to show notice, 254. 
 STRENGTH OF BRIDGE, (See New Use of Bridge). 
 liability in respect to, 84. 
 
342 INDEX. 
 
 Keferences axe to pages. 
 
 SURFACE WATERS, 
 
 liabilities of municipal corporations relative to, 273-280. 
 
 state of the law governing, 273. 
 
 rule of civil law as to, 273. 
 
 rule of common law as to, 274. 
 
 where natural flow of, is changed through negligence, 277. 
 
 where, collected and cast in body on private property, 278. 
 
 SURVEYORS OF HIGHWAYS, 
 rule of liability for torts of, 47, n. 
 
 SUSPENSION OF ORDINANCES, 
 nature of duty involved in, 815. 
 no liability for damages due to, 315 
 
 TAKING OF PRIVATE PROPERTY, 
 
 where construction of drains or sewers results in, 261, 268, 
 
 by casting upon it surface water in a body, 278. 
 TAX ASSESSORS AND COLLECTORS, 
 
 no corporate liability for torts of, 45. 
 
 except for those committed while dealing with local taxes, 46. 
 
 TIME OF ACCIDENT, 
 
 meaning of phrase, 220, n. 1. 
 
 statement of, in notice of accident, 244. 
 
 effect of variance as to statement of, 244. 
 TO REPAIR, 
 
 definition of phrase, 179, n. 1. 
 TOWN HALL, (See Crrr or Town Hali..) 
 
 liabilities relative to, 61. 
 TRAVELLED PART OF HIGHWAY, 
 
 meaning of phrase, 142, n. 2. 
 
 defect must be in, 142. 
 
 effect of deviating from, 142. 
 
 where deviation from, is slight and accidental, 144. 
 
 or necessary because of condition of way, 144. 
 
 or necessary to pass another team, 145. 
 
 where, has become extended, 145. 
 
 where limits of, are not indicated, 147. 
 
 dangerous place outside, must be near to, 194. 
 TRAVELLER UPON BRIDGE, 
 
 what, may ordinarily assume, 74. 
 
 what, must do when load is unusual, 74. 
 
 contributory negligence of, 75. 
 
 efiect of knowledge of, as to defects in structure, 75. 
 
INDEX. 343 
 
 References are to pages. 
 
 TRAVELLER UPON HIGHWAY, 
 plaintiff must be, when injured, 121. 
 what is, 122, 123. 
 
 whether plaintiff was, is question of fact, 123. 
 contributory negligence of, 220. 
 standard of care required of, 221. 
 what, may ordinarily assume, 224. 
 not bound to cross street at crossing, 225, n. 
 not bound to give whole attention to street, 226. 
 when, cannot act on presumption of safety, 227. 
 efiect of infancy of, 227. 
 
 effect of negligence of parent or guardian of, 228. 
 effect of negligence of driver of, 229. 
 care to be exercised by, in night time, 231. 
 effect of knowledge of, as to existence of defects, 232. 
 effect of defective vision of, 237. 
 effect of intoxication of, 238. 
 effect of defective powers of locomotion of, 239. 
 assumption of risks by, 239. 
 
 TRESPASS, 
 
 liability of municipal corporations for, 51. 
 
 ULTRA VIRES TORTS, 
 rule of liability as to, 24, 31. 
 
 UNAUTHORIZED ACTS, 
 
 of corporate officers and agents, 29. 
 
 ratification of, 30. 
 UNCONSTITUTIONAL POWERS, 
 
 rule as to liability for torts done while acting under, 24. 
 
 UNLAWFUL ARREST, 
 
 no corporate liability for, by police officers, 38. 
 
 even though made without warrant, 38, n. 
 
 made while enforcing invalid ordinance, 39, n. 
 UNLAWFUL ASSEMBLAGE, 
 
 an, as defect in highway, 155. 
 
 no common law liability for injury or destruction of private 
 property by, 290. 
 
 statutory liability for private property injured or destroyed by, 
 291. 
 
 theory and nature of this statutory liability, 291. 
 
 property protected from acts of, 293. 
 
 damage must be done by, 294. 
 
 preventability of damage by, 295. 
 
 notice of impending damage by, 296. , 
 
344 INDEX. 
 
 ReferenceB are to pages. 
 
 UNLAWFUL ASSEMBLAGE,— continued. 
 
 effect of plaintifE's conduct, 297. 
 
 damages recoverable for acts of, 298. 
 
 no liability for personal injury or death caused by, 299, n. 
 USB OF BRIDGE, 
 
 making new, 76. 
 
 no liability for injuries received while making new, 77. 
 
 basis of this rule of immunity, 77. 
 
 what is making new, is question of fact, 78. 
 USE OF HIGHWAY, 
 
 injured person must be making proper, 121. 
 
 effect of nature of, on duty to repair, 182. 
 
 effect of extent of, on duty to repair, 183. 
 USEFUL AND NECESSARY ARTICLES, 
 
 as defects in highway, 149. 
 
 VARIANCE, 
 
 effect of, as to time of accident, 244. 
 VEHICLE, 
 
 use of unusual, upon bridge, 76, 78. 
 
 use of unusual, upon highway, 134, n. 1, 287, n. 
 
 bicycles, 178, n. 2. 
 VIOLATION OF LAW, 
 
 effect of acting in, at time of injury on highway, 125. 
 VISION, 
 
 travelling on highway with defective, not negligence ^er se, 287. 
 VOLENTI NON FIT INJURIA, 
 
 application of maxim, to highway cases, 239. 
 
 W. 
 
 WATER, 
 
 no liability for failure to supply, for fire purposes, 13, 36. 
 
 as to liability for furnishing impure, 68, n. 
 WATER COMMISSIONERS, 
 
 liability for torts of, 33, 35. 
 WATERCOURSE, 
 
 liabilities of municipal corporations as to, 280-289. 
 
 definition of, 280, ii. 2. 
 
 distinction between, and surface waters, 280. 
 
 importance of this distinction, 281. 
 
 no liability for consequential damages due to improvements in, 
 281. 
 
INDEX. 345 
 
 References are to pages. 
 WATERCOURSE, — continued. 
 
 general duties and liabilities as to, 282. 
 
 obstruction of, by bridges or culverts, 284. 
 
 diversion of waters of, 286. 
 
 artificial channel of, must be given sufficient capacity, 286. 
 
 pollution of waters of, 287. 
 WATERS, (See Surfacb Waters; Watercourse.) 
 
 liabilities of municipal corporations as to, 273-289. 
 WATER-WORKS, 
 
 liability of corporations as owners of, for supplying inhabitants, 
 66. 
 
 not insurers of condition of, 67. 
 
 liability for, does not extend to lateral service pipes, 67, n. 1. 
 
 no liability for failure to maintain, for fire purposes, 68. 
 WEST VIRGINIA, 
 
 rule in, as to notice of defects in highways, 203, n. 2. 
 WHARVES, 
 
 liabilities of municipal corporations as owners of, 64. 
 
 where no wharfage is paid for use of, 65, n. 3. 
 
 where, are leased by corporation, 65, n. 4. 
 
 where person using, knows them to be unsafe, 66, n. 
 WIDTH OF BRIDGES, 
 
 liability in respect to, 83. 
 WIDTH OF HIGHWAYS, 
 
 duty and liability in respect to, 134.