Grant v. City of Erie.

of 1833, the borough of Erie was authorized "to make and establish a sufficient number of reservoirs to supply water in case of fire;" that reservoirs had been constructed in pursuance of this authority, one of which was located near plaintiff's buildings; that in 1867, in arranging their sewerage, part of this reservoir was removed, and it was not afterward repaired; that at the time of the fire there was no water in the reservoir, and, in consequence, the plaintiff's buildings were destroyed. At the trial, the judge charged that the construction and keeping in repair of the reservoirs was discretionary with the city, and that the city was not liable. Verdict for defendants. Plaintiff took out a writ of error.

J. R. Thompson and C. H. Curtis, for plaintiff in error, cited Powell v. Salisbury, 2 Younge & Jervis, 391; Conrad v. Ithaca, 16 N. Y. 159; Hutson v. New York, 9 id. 163; Shear. & Redf. on Neg. 157, 130; Rochester White Lead Co. v. Rochester, 3 N. Y. 468; Furze v. New York, 3 Hill, 612; People v. Albany, 11 Wend. 543; McCombs v. Akron, 15 Ohio, 474; Scott v. Hunter, 10 Wright, 192; Davenport v. Ruckman, 37 N. Y. 568.

E. Babbitt, for defendant in error, cited Carr v. N. Liberties, 11 Casey, 324; Fowle v. Alexandria, 3 Pet. 398; Ryan v. New York Central Railroad, 35 N. Y. 210; Pennsylvania Railroad v. Kerr, 62 Penn. St. 353.

SHARSWOOD, J. We consider the principles involved in these assignments of error to have been authoritatively ruled in Carr v. The Northern Liberties, 11 Casey, 324, and unless that decision is to be overruled the judgment below must be affirmed. In that case, a power was conferred by its charter upon a municipal corporation "to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district." The municipality did proceed to build culverts in exercise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice LowRIE, before whom the Cause was tried in the court of nisi prius, at Philadelphia, without hearing any evidence for the defendants, entered a judgment of nonVOL. VIII.

35

Grant v. City of Erie.

suit, and the judgment was affirmed by this court. The same learned judge before whom the case had been tried, ir delivering the opinion affirming the judgment, said: "We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has a right to demand the exercise of a public function, and there is an officer, or set of officers, authorized to exercise that function, there the right and the authority give rise to the duty; but when the right depends upon the grant of authority, and that authority is essentially discretionary, no legal duty is imposed." It is not easy to perceive any ground for a distinction between the facts of that case and of those presented upon this record.

By the ninth section of the act of April 8, 1833, incorporating the borough of Erie, the burgess and councils of the said borough were, among other things, authorized and empowered "to make and establish a sufficient number of reservoirs to supply water in case of fire." In pursuance of this authority, they did make and establish a number of reservoirs, among them the one in questior, at the intersection of French and Fifth streets. This reservoir was allowed to fall into decay was never repaired, and became so leaky that it was insufficient for the purpose for which it was constructed. The plaintiff alleges that, in consequence, a valuable block of buildings, which he owned in the neighborhood, having taken fire was entirely consumed, there being no water in the reservoir to extinguish it. To what extent, if the water had been there, it might have succeeded in arresting the fire, and preventing the entire damage which he suffered, is a matter of conjecture only, but it may be admitted that it would to some extent. But the same reason existed in the

case of the insufficient culvert. To some extent, it probably would have prevented the injury to the plaintiff if it had been sufficient. We do not say, because it is not necessary to say, whether, if a duty had been imposed upon the municipality, and not a mere discretionary authority conferred upon them, that their negligence in the premises would not have constituted a good cause of action. It may be doubted whether it would be a case to which the maxim causa proxima non remota spectatur has any application. The purpose of the reservoir being to extinguish fires, and the fire having been shown not to have been extinguished, in consequence of the onperformance of the duty imposed, it would be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the

Roshi's Appeal.

want of water only the remote cause. If it were made the duty of a municipality to station a police officer at a particular corner, to protect the foot passengers from being run over by passing vehicles, it may be doubted whether it would be an answer to an action, to say that the cause of the injury was the horse and wagon, and not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no one can surely pretend that a foot passenger, run over by a wagon, could sue the corporation for damages, even though he should be able to show that they had formerly kept an officer at that place for that purpose, and had withdrawn him, or that he had been guilty of negligence in the performance of his duties. That would be a case precisely analogous to the one now before us.

Judgment affirmed.

NOTE. - In Wheeler v. City of Cincinnati, 2 Am. R. 368, it was held that a city, authorized by statute to establish a fire department and procure engines, etc., necessary to extinguish fires, is not liable to an individual whose house has been burned, for any defect in the execution of such power, nor for a neglect of duty on the part of fire companies or their officers. — REP.

ROSHI'S APPEAL.

(69 Penn St. 462.)

Ecclesiastical law-title to property, etc., of a divided congregation.

The title and use of the property of a divided congregation, and the offices pertaining thereto, belong to that portion which adheres to the denomination and conforms to its rules.

A classis of the German Reformed church of the United States, sitting as an ecclesiastical court, declared certain offices held by defendants vacant. Held, that this decision was binding on the civil courts. (See note, p. 283.)

BILL in equity filed by Andrew Koehler, Henry Roshi, Henry Shaffer, Conrad Reitz and John Kramer against Peter Roshi, Adam Hill, Jacob Bauer, Adam Sundaker and Robert Koehler, praying that the respondents be declared trespassers and intruders on certain church property and offices, and that an injunction be granted restraining the defendants, and any one under them, from inter

Roshi's Appeal.

fering with the said church property; and for general relief. The case was referred to a master.

The master reported that the congregation had been organized in 1835, by the Rev. Philip Zaiser, as minister of the German Reformed church in the United States, by the authority of the synod, who upon his report accepted it as a member of that church, and the lot was conveyed for their use. St. Paul's classis was formed in 1861, and the church was represented in it by a lay delegate, in each of the years from 1861 to 1867 inclusive. On the 1st of January, 1868, Peter Roshi, Adam Hill, Jacob Bauer and Adam Gundaker were elected elders and deacons; and then Rev. Robert Koehler took charge of the congregation as pastor, and the congregation soon after divided into about equal parts. On the 21st of January, 1869, complaint was made to two of the elders, charging Mr. Koehler with immoral conduct, and demanding an investigation; the investigation was denied. Complaint against this action was made to St. Paul's classis, who appointed a committee to investigate the matter and report such action as might be proper to the next annual meeting of the classis.

"The committee, among other things, reported, that the parties in possession denied the authority of the classis, and were not served by one of her ministers and disregarded the rules of the Reformed church; that those acting with the complainants were a majority of the original congregation, and were faithful to the authority of the church, and had been imposed on by men who improperly style themselves the consistory of Greenwood church, and who had forced on the congregation R. Koehler as a minister, without submitting to an election of the people; the report of the committee set out other failures of duty by the consistory; and further, that they allowed R. Koehler to preach while under a charge for immoral conduct, and the committee had ascertained the charge to be well founded; although the consistory refused to take notice of the complaint, all the consistory but one had been acting without having been regularly installed. Under all the facts, the committee concluded that the Greenwood church had no properly constituted consistory, and that the offices of elders and deacons were vacant. They further reported that the congregation had been founded as a German Reformed congregation, subject to the authority of the German Reformed church," and in that capacity acquired the property; that the church had been served for about twenty-eight years, except three or four

Roshi's Appeal.

years of trouble in the church, by German Reformed ministers; the church had been, on her own application, united by the classis with other congregations to make a change; had participated during that time in the election of delegates to classis and by numerous other acts shown that she regarded herself "a member of our church,” and it would be gross neglect in the classis to permit its destruction "as one of our body by non-interference and silence against the machinations of secession and infidelity." The committee recommended the passage of resolutions by the classis as follows:

"1. That the German Reformed congregation at Greenwood was a member of the German Reformed church in the United States; that St. Paul's classis had jurisdiction of the congregation, and that any one not acknowledging that jurisdiction could not be an officer or member of the congregation.

"2. That the offices of elders and deacons of the church be declared vacant.

"3. That the members adhering to the faith, discipline and doctrine of the German Reformed church be required to meet, on proper notice, on or before the 15th day of July, 1869, to elect elders and deacons, to act as a consistory and a board of trustees in the congregation.

"These resolutions were adopted by the classis, June 7, 1869, and on the 22d of the same month the complainants were elected elders and deacons.

• The congregation was part of the Watson Run charge; Rev. Frederick Wahl was installed pastor over the two congregations in May, 1869, and preached to the Greenwood congregation on three Sundays, the last being on the 5th of September, 1869, since when the defendants took possession of the church and hold it against the plaintiffs."

The master decided "that this church is a member of the German Reformed church of the United States and of St. Paul's classis, and subject to the ecclesiastical jurisdiction of said classis. This congregation became divided in 1868; the division originated in the selection of Rev. Robert Koehler as minister or pastor of the church. The plaintiffs claimed that Rev. Koehler was unfit for the place assigned him, and made complaint against him to the defendants, the elders and deacons of the church, who had been elected January 1, 1868, charging Koehler with immoral conduct, and demanding an investigation of the charge. This demand not being complied with,