ages;1 but if such corporation neglects to keep the canal free and clear from obstructions as required by its charter, it is liable to the owner of a raft which is thereby grounded and injured.2 § 115. Corporations and public trustees, empowered to improve the navigation of streams, or to construct canals, docks, wharves, water-works, or bridges, may be liable, independently of statute, for a neglect of duty which causes injury to individuals from whom toll is demandable.3 In Mersey Docks v. Gibbs, it appeared that the trustees of the docks in Liverpool were incorporated by act of parliament for the construction and maintenance of docks and warehouses for the public use, with authority to collect tolls therefor, and that these tolls were to be applied exclusively to the maintenance of the docks and warehouses, and to the pay 1 Quincy Canal v. Newcomb, 7 Met. 262; Humphreys v. Armstrong, 56 276, 284. Penn. St. 204, 209; Steele v. Western 2 Riddle v. Locks & Canals, 7 Mass. Navigation Co., 2 Johns. 283; Schuyl169. 3 Harrison v. Great Northern Railway Co., 3 H. & C. 231; Manley v. St. Helen's Canal Co., 2 H. & C. 840; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223; John v. Bacon, L. R. 5 C. P. 437; Bayley v. Wolverhampton Water Works Co., 6 H. & N. 241; Smith. London Docks Co., L. R. 3 C. P. 326; Dunn v. Birmingham Canal Co., L. R. 8 Q. B. 42; Rex v. Kent, 13 East, 220; Newark Plank Road Co. v. Elmer, 1 Stock. 755; 4 Hal. Ch. 586; Gifford v. New Jersey Railroad Co., 2 Id. 177; Attorney General e. New Jersey Railroad Co., 2 Green Ch. 136; Allen v. Monmouth Co., 2 Beas. 68; Pittsburgh . Grier, 22 Penn. St. 54; Prescott . Duquesne, 48 Penn. St. 118; Pennsylvania Railroad Co. e. Patterson, 73 Penn. St. 491; Pennsylvania Canal Co. v. Graham, 63 Penn. St. 290; Hill v. Boston, 122 Mass.; Yale v. Hampden Turnpike Co., 18 Pick. 357; Heacock v. Sherman, 14 Wend. 58; Albany v. Cunliff, 2 N. Y. 165; Radway v. Briggs, 37 N. Y. 256; Stack v. Bangs, 6 Lans. kill Navigation Co. v. McDonough, 33 Penn. St. 73; Frankfort Bridge Co. v. Williams, 9 Dana, 403; Adsit v. Brady, 4 Hill (N. Y.) 630; Shepherd v. Lincoln, 17 Wend. 250. 11 H. L. Cas. 687; L. R. 1 H. L. 93; 7 H. & N. 329; 3 Id. 164; 1 Id. 439; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 223; Mersey Docks v. Cameron, 11 H. L. Cas. 443; Coe v. Wise, L. R. 1 Q. B. 711; 5 B. & S. 440; 7 Id. 831; Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62; Foreman v. Canterbury, 40 L. J. (Q. B.) 138; Shoebottom v. Egerton, 18 L. T. N. S. 889; Walker v. Goe, 4 H. & N. 350; Witherly v. Regent's Canal Co., 3 F. & F. 61; 12 C. B. N. s. 2; Thompson v. North-eastern Railway Co., 2 B. & S. 106; Grant v. Sligo Harbour Commissioners, Ir. R. 11 C. L. 190; Itchin v. Southampton, 8 E. & B. 301 ; Ward v. Lee, 7 E. & B. 426; Clothier r. Webster, 12 C. B. N. s. 790; Ruck v. Williams, 3 H. & N. 308; Whitehouse v. Fellows, 10 C. B. n. s. 765 ; Brownlow v. Metropolitan Board, 13 C. B. N. s. 768; 16 Id. 546. ment of the indebtedness incurred in their construction; and it was held by the House of Lords that the trustees were liable to the owner of a vessel, which was injured in entering one of the docks, by striking upon a bank of mud which their servants and agents had negligently permitted to accumulate at the entrance. In Winch v. Conservators of the Thames, the defendants were held liable for the non-repair of a towing path adjoining the river Thames, the doctrine sustained by the majority of the court of Exchequer Chamber being that the defendants, so long as they kept the towing path open and took toll for its use, were under an obligation to those whom they invited to use it, to take reasonable care that the towing path was in such condition as not to expose those using it to undue danger, and that there was no distinction in this respect between the natural and artificial parts of the towing path. But where the trustees or conservators of a river, who were not owners of the river or of the navigation therein, but were an unpaid body of trustees, appointed for public purposes in aid of the common-law right of navigating an ancient highway, were authorized to remove all obstructions and impediments to the navigation at their discretion, they were held not liable for injuries sustained by a vessel which struck upon submerged piles in the bed of the river.2 So, in the absence of negligence, a corporation empowered by a special act to improve the navigation of a river, and to collect tolls for the purpose of defraying the expense, is not liable at law for injury to the adjoining lands caused by an overflow of the water in consequence of staunches which it has erected in the river in aid of the navigation, combined with the natural growth of weeds and the accumulation of silt against the staunches,3 since the duties of a navigation company which does not own the soil are confined, in the absence of an express enactment upon 'L. R. 9 C B. 378; L. R. 7 Q. B. See Grote v. Chester Railway Co., 2 458. Exch. 251; Hammond v. Vestry of St. Pancras, L. R. 9 C. P. 316. 2 Forbes v. Lee Conservancy Board, 4 Ex. D. 116; York Railway Co. v. Reg., 1 El. & Bk. 858; Great Western Railway Co. v. Reg. 1 El. & Bk. 874. the subject, to matters relating to the navigation.1 The liability, when it exists, depends upon the neglect of duty towards persons who, being within the scope of the benefit intended by the statute, are damaged by such neglect.2 § 116. Quasi corporations, such as counties and municipal corporations, created by the legislature for public purposes, are subject to indictment at common law for the neglect of a public duty imposed upon them, but are not liable to a private action for such neglect, unless such action is given by statute, or the liability arises by prescription, or unless they hold and deal with property for their own emolument, and receive rents or tolls therefrom like a private owner.3 1 Ibid.; Parrett Navigation Co. v. Robins, 10 M. & W. 593. * Ibid.; Parnaby v. Lancaster Canal Co., 11 Ad. & El. 213; Manley v. St. Helen's Canal, 2 H. & N. 840; Mersey Docks v. Gibbs, 11 H. L. Cas. 686; Forbes v. Lee Conservancy Board, 4 Ex. 116; Riddle v. Proprietors of Locks and Canals, 7 Mass. 169. Corporate bodies, or individuals, when authorized to perform an act for others which will benefit themselves, such as the construction of a tollbridge, are bound to repair, though the public use the structure. Rex v. West Riding, 2 East, 342; Rex v. Kent, 13 East, 220; Rex v. Lindsay, 14 East, 37; Rex v. Somerset, 16 East, 305; Rex v. Oxfordshire, 16 East, 223; Reg. v. Kerrison, 3 M. & S. 526; Manley v. St. Helen's Canal Co., 2 H. & N. 804; Reg. v. Brecon, 15 Q. B. 813; Nicholl v. Allen, 1 B. & S. 934; Wiggins v. Boddington, 3 C & P. 544; Reg. v. Ely, 4 New Sess. Cas. 222. See Cutler v. Howard, 9 Wis. 309; County Commissioners v. Duckett, 20 Md. 468; Hill v. Boston, 122 Mass. 344; Freedom v. Weed, 40 Maine, 383; Tifft v. Jones, 52 Ga. 538. But if they act solely for the benefit of the public, or if the particular liability is, by statute, prescription or otherwise, shifted upon the public, they are not liable if they fail to repair. Reg. v. Southampton, 18 Q. B. 841; Rex v. Oxfordshire, 16 East, 223; Rex r. Derbyshire, 2 Q. B. 745; Rex v. Whitney, 3 Ad. & El. 69; Rex v. Trafford, 1 B. & Ad. 874; Rex v. Devonshire, 5 B. & Ad. 383; Reg. v. Gloucestershire, 2 C. & M. 506; Reg. v. Southampton, 18 Q. B. 841; Sampson v. Goochland Justices, 5 Gratt. 241; Rex v. Hendon, 4 B. & Ad. 628 ; Rex v. Oswestry, 6 M. & S. 361; Rex v. Ecclesfield, 1 B. & A. 348 ; Rex v. Stratford-on-Avon, 14 East, 348; Rex v. Lincoln, 8 Ad. & El. 65; Rex v. Surrey, 2 C. & M. 455; Beaver v. Manchester, 8 E. & B. 44; Reg. v. Southampton, 18 Q. B. 841; Rex v. Oxfordshire, 4 B. & S. 194; Nicholl v. Allen, 1 B. & S. 934; Reg. v. Commissioners, 10 L. T. N. s. 375; Rex r. Yorkshire, 5 Burr. 2594; 2 Wm. Bk. 685; Flynn v. Canton Co., 40 Md. 312; Sayre v. North-western Turnpike Road, 10 Leigh, 454; Swineford v. Franklin Co., 6 Mo. App. 39; Maximilian v. Mayor, 62 N. Y. 160; Coulson & Forbes on Waters, 519; Orcutt v. Kittery Point Bridge Co., 53 Maine, 500. The owner of a toll-bridge is not liable as a common carrier, but is only bound to proper diligence in keeping the bridge in repair. Grigsby v. Chappel, 5 Rich. (S. C.) 444. 3 Russell v. Men of Devon, 2 T. R. Under the last exception, a city which has possession and exclusive control of a public wharf or dock, and receives toll for its use, is liable to an individual who is injured upon the wharf, or whose vessel is damaged, in consequence of nonrepair. Upon the ground of prescription, a municipal corporation has been held liable to a person who lost his navigation because of its neglect to repair and cleanse a tide-water creek,2 and for the same reason it may be liable to a private action for damages caused by its neglect to repair sea-walls. A city which, being under no legal obligation to remove obstructions in a navigable river, attempts so to do, but abandons the work without changing the position of an obstruction which afterwards causes injury to a vessel, is not liable therefor.4 667; Hill v. Boston, 122 Mass. 344; Barnes v. District of Columbia, 91 U. S. 540, 551; Dillon, Mun. Corp. c. 23; Gordon v. Taunton, 126 Mass. 349; Riddle v. Locks & Canals, 7 Mass. 169; Mower v. Leicester, 9 Mass. 247; Finch v. Board of Education, 30 Ohio St. 37; Pray v. Jersey City, 32 N. J. L. 394; Rowe v. Portsmouth, 56 N. H. 291; Eastman v. Meredith, 36 N. H. 284; Detroit v. Blackeby, 21 Mich. 84; Rapho v. Moore, 68 Penn. St. 404; Baltimore v. Marriott, 9 Md. 160, 175; Cooper v. Athens, 53 Ga. 638; Aldrich v. Tripp, 11 R. I. 145. See Waltham v. Kemper, 55 Ill. 346; Chicago v. Joney, 60 Ill. 383; Chicago v. Dermody, 61 Ill. 431; Richmond v. Long, 17 Gratt. 375; Transportation Co. v. Chicago, 99 U. S. 635; 7 Biss. 45; Nugent v. Levee Commissioners, 58 Miss. 197. 1 Pittsburgh v. Grier, 22 Penn. St. 54; Pittsburg Railway v. Gilleland, 56 Penn. St. 445, 451; Winpenny v. Philadelphia, 65 Penn. St. 135, 140; Philadelphia v. Gilmartin, 71 Penn. St. 140, 159; Snyder v. Philadelphia, 78 Penn. St. 23; Hey v. Philadelphia, 81 Penn. St. 44, 51; Maxwell v. The City, 7 Phila. 137; Hill v. Boston, 122 Mass. 344, 376; Oliver v. Worcester, 102 Mass. 489; Aldrich v. Tripp, 11 R. I. 141; Radway v. Briggs, 37 N. Y. 256; Kennedy v. New York, 73 N. Y. 365; Shinkle v. Covington, 1 Bush, 617; Memphis v. Kimbrough, 12 Heisk. 133; Petersburg v. Applegarth, 28 Gratt. 321; Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Jeffersonville v. The John Shallcross, 35 Ind. 19; Macauley v. New York, 67 N. Y. 602; Moody v. New York, 43 Barb. 282; Taylor v. New York, 4 E. D. Smith, 559; McGuiness v. New York, 52 How. Pr. 450; Seaman v. New York, 3 Daly, 147. An agreement by a municipal corporation to let a repairing dock, which it owns, but of which it retains the control and possession, is not an agreement as to an interest in land, and if the admission of ships into the dock is a matter of frequent ordinary occurrence, the agreement need not be under the corporate seal. Wells v. Kingston-uponHull, L. R. 10 C. P. 402. § 117. Municipal corporations cannot engage in works of internal improvement, such as the construction of harbors, canals, etc., and loan their credit in aid thereof without special authority from the legislature. They have been thought not liable for acts which are ultra vires, as by erecting an embankment in excess of their powers which turns a stream upon the plaintiff's lands.2 They may be empowered by the legislature to pass ordinances for the preservation of their harbors and water channels and the regulation of vessels and wharves; to deepen and improve rivers, or to remove and prevent obstructions therein, or to subscribe for stock in a company organized for the purpose of improving the navigation of a river contiguous to the city or town, even when the improvements extend through several towns or counties.5 Special laws granting such powers and the right to levy taxes therefor are sustained by the courts, it is said, only when it is apparent that the works will be generally beneficial to the members of the corporation. 1 Hasbrouck v. Milwaukee, 13 Wis. 37; Miller v. Milwaukee, 14 Wis. 642; Oebricke v. Pittsburg, 5 Penn. L. J. Rep. 485; Anthony v. Adams, 1 Met. 284. 2 Anthony v. Adams, 1 Met. 284; Wheeler v. Essex Public Road Board, 39 N. J. L. 291. But cf. post, § 260. 3 Ibid.; Muscatine v. Keokuk Northern Line Packet Co., 45 Iowa, 185; Keokuk v. Keokuk Northern Line Packet Co., Id. 196; Culbertson v. The Southern Belle, Newb. 461; Soens v. Racine, 10 Wis. 271; Hasbrouck v. Milwaukee, 13 Wis. 37; 17 Wis. 266; 21 Wis. 217; New York v. Ryan, 2 E. D. Smith, 368; People v. Bryan, 46 Barb. 355; Ogdensburg v. Lyon, 7 Lans. 215; Ogdensburg v. Lovejoy, 2 S. C. 83; 10 Alb. L. J. 207; Brown v. Catlettsburg, 11 Bush, 435; Grant v. Davenport, 18 Iowa, 179; Philadelphia v. Field, 58 Penn. St. 320; New Orleans v. New Orleans Railroad Co., 27 La. Ann. 414; Ellerman v. McMains, 30 La. Ann. 190; Municipality No. 1 v. Kirk, 5 La. Ann. 34; Shepherd v. Third 5 Taylor v. Newbern, 2 Jones Eq. 141. As to the prohibiting the removal of sand by city ordinances, see Clason v. Milwaukee, 30 Wis. 316. 6 Alexander v. Milwaukee, 16 Wis. 247; Miller v. Milwaukee, 14 Wis. 642; Hasbrouck v. Milwaukee, 13 Wis. 37; 17 Wis. 266; 21 Wis. 217; State v. Hasbrouck, 25 Wis. 122; Reed v. Erie, 79 Penn. St. 346. |