
    Joseph McCombs vs. The Town Council of Akron.
    - A municipal corporation, like an individual, is liable for injuries resulting to the property of others from the Sets of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence 'or malice.
    ■ This is a Writ of Error to the Supreme Court'of Summit County, returnable in Bank, brought to reverse a judgment - of that Court, affirming the judgment of the Court of Common' Pleas.
    The original action was iñ' casé against the Town Council ■ of Akron for cutting down a street, whereby the' house and iot of the plaintiff suffered an injury.
    
      In Bank.
    Dec. Term, 1846.
    Plea, the general issue, and notice that the act of incorporation and the ordinances of the town conferred the full power to cut down and grade the street, and that it was done in a legal and judicious manner.
    Verdict and judgment for the defendant.
    The bill of exceptions shows, that the plaintiff’s house and lot were situated on the street and sustained an injury by cutting it down and grading it, but from no other act. The defendant introduced a certain contract of purchase from the proprietor of the town, by the plaintiff, which contemplated a future grading of the street, and proved that he received his deed under said contract, before the street was graded. ■ Proof was also offered tending to disprove the plaintiff’s claim.
    The plaintiff’s counsel asked the Court to charge the jury, that, if the plaintiff’s property had sustained a real and substantial injury by reason of defendant’s act in grading the street, that the plaintiff might recover, even though the corporate authorities had acted strictly within their legal authority and without any intent to injure the plaintiff’s property. The Court refused so to charge, and this was assigned for error.'
    The Supreme Court on the circuit affirmed the judgment of the Court of Common Pleas, and to reverse this judgment this writ of error is brought, the error assigned being, that the Supreme Court erred in affirming the judgment of the Common Pleas.
    
      King Taylor, for the Plaintiff in Error.
    The'case was submitted for the plaintiff without argument.
    
      Lucius V. Bierce, for the Defendant.
    This cause presents a new question. In all the cases bearing any analogy to this, heretofore decided by this Court, there has been “ illegality, excessive use of authority, malice,, or an * indirect injury by the act of the defendant to the land of the c plaintiff, as digging drains and ditches, by which the land of £ the plaintiff was washed away.”
    In the present case, no such injury is complained of, and though the intent to injure the plaintiff is alledged in the declaration, the charge has been submitted to a jury and found for the defendant.
    Another feature in this case, different from any heretofore passed upon by this Court, is the fact that Simon Perkins, the original proprietor of the town plat of Akron, in his contract for the sale of the lot to which the injury is charged to have been done, incorporated into it a clause, that “said Jot should £ be graded according to the directions of the party of the first £ part.” This formed a material part of the contract under which the plaintiff claims title, and, although he has since taken a deed of warranty, yet the original contract being uncanceled, shows that the parties considered themselves still bound by their covenant. The plaintiff purchased with that condition. The contract being uncanceled, he still holds with that condition.
    But aside from-this, the plaintiff cannot recover. From the bill of exceptions, it appears that the only injury complained of is, that the defendant graded the street in front of the lot, without, in any manner, entering upon or interfering with the lot itself, except by cutting down the street in front of it; and all illegality, or malice, or indiscreet or arbitrary exercise of authority has been negatived by the verdict.
    The case, then, bears but little analogy to that of Goodloe v. Cincinnati, 4 Ohio Rep. 500, where the gravamen of the charge is, that the plaintiff had finished his house, “ with an £ express view to the level and grade of Water street, as previc ously made by the defendants, and that the defendants mali- £ ciously and without cause dug up and destroyed said street.” By the demurrer, the defendants admitted the previous grade, established by themselves, the plaintiff building to it, and that they “ maliciously and without cause ” changed the grade, to his injury. The Court say: “In this case, the act is charged ‘ to have been illegal and malicious. When a corporation acts ‘ illegally and maliciously, we conceive it ought to be made di- ‘ rectly responsible.”
    The case of Smith v. Cincinnati, 4 Ohio Rep. 514, is, in all respects, similar, except the act was not charged to have been malicious.
    The previous grade, the building to it, and change of grade without cause, were the gravamen of the charge on which the plaintiff relied and recovered.
    In the case now under consideration, no previous grade had been established — no building with reference to -any grade — and all charge of malice, illegality or want of discretion or good faith is. rebutted by the verdict.
    This view of that decision is confirmed by Scovill v. Giddings, 7 Ohio Rep. 211, where the Court say, in reference to Goodloe v. Cincinnati: “There the Court decided, that ‘ where a public corporation acts illegally and maliciously, or * illegally, without malice, to the prejudice of an individual, an ‘ action on the case may be maintained — a doctrine which is c not controverted here.”
    The Court, also, put the same construction upon that decision In Rhodes v. Cleveland, 10 Ohio Rep. 159, where they say : “We held the corporation of Cincinnati liable for injury done by grading, either illegally or maliciously.”
    Both those cases were decided expressly on the ground of illegality or malice.
    In the present case, the jury having found there was no malice or illegality, and that “ the town council were authorized by 1 law to grade the street, that they acted strictly within their 1 authority, and performed the work judiciously and discreetly, ‘ and for the sole purpose of improving the'street, and without * any intention of injury to the plaintiff or his property;” as appears by the bill of exceptions, the case comes directly within the decision of Scovill v. Giddings, 7 Ohio Rep. 211, where the Court say: “ The principle of law, that when indi- ‘ viduals are exercising a power the law has given them, they c cannot be made answerable for it, in any form of action, ‘ applies. It is a principle of universal application, and is ab- £ solutely necessary to the protection of all those in whom any' ‘ public trust is confided. The case of Callender v. Marsh, £ 1 Pick. Rep. 418, is here recognized by law, in Ohio, which ‘ says, c a scavenger has authority, by law, to dig down or raise c a street, and if he does it with discretion, and not wantonly, c the party injured cannot maintain an action against him nor c any other person.’ ’■’ ■
    The same principle is recognized in Iliekox v, Cleveland, 8 Ohio Rep. 543, where the Court say: “ The corporation { acted under authority of the Legislature, and no action will ‘ lie for what they have done, in the execution of that duty, ‘ unless they exceeded the authority confided to them, or abused £ that authority by acting arbitrarily or oppressively in the mode ‘ .of carrying it into execution.” In-this case, also, the case of Callender v. Marsh is recognized as law, and the Court reiterate the doctrine,-that,if the corporation had exceeded the ■,£ authority intrusted to them, they would subject themselves to ‘ an action.”-
    But it is contended, that all these cases are overruled-by the-decision of. this Court in' Rhodes v. Cleveland, 10 Ohio Rep. 159. ' The Court disclaim any such intention, by saying: “No ‘ decision of our own State goes to deny the right to the pres-e ent action.” It is necessary, then, to examine the cases, and see wherein the difference consists between those cases and this. Those are for grading the street in front of the plaintiff’s premises; and to entitle them to recover, malice or illegality must be charged and proven. This was for “ cutting. ditches ‘ and water .courses in such manner as to cause the water to c overflow and wash away the plaintiff’s land.” '
    The remarks of the Court in this case, though somewhat general, must be supposed to be intended to apply to the facts then before the Court. This is clear, from the concluding remarks of the Court, where they say: “We hold that corpoc rations are liable, like individuals, for injuries done, although £ the act was not beyond their lawful powers.” If, then,, corporations are liable, like individuals, for injuries done,” the whole matter is decided by the simple inquiry as to the right of individuals. They are not liable for grading down their lots adjacent to the land of others, provided, they do not interfere with their neighbor’s land, but, most clearly, are liable, if. as in Rhodes, v. Cleveland, they “cut ditches and watercourses in ‘ such a manner as to cause the watér to overflow and wash £ away another’s land.” .
    If, then, the Town Council of Akron had cut ditches so as to overflow the plaintiff’s land, as in Rhodes v. Cleveland, or extended their authority, or acted arbitrarily or oppressively, as stated in Hickox v. Cleveland, or illegally and maliciously, as in Goodloe &f Smith v. Cincinnati, they would clearly be liable ; but, as the first is not charged against them, and the others are negatived by the verdict, I say with the Court, in Hickox v. Cleveland, “ the corporation acted under the authority of the Legislature, and no action will lie for what they have done, in the execution of that duty, unless they have exceeded the authority confided to them, or abused that authority by acting arbitrarily or oppressively in the mode of carrying it into execution, or by some act have caused an injury to the soil itself.
   Read, J.

The sole question in this case is, whetheí a municipal corporation can be made liable' for an injury resulting to the property of another, by an act of such corporation, strictly within the scope of its corporate authority, and unattended by any circumstance of negligence or malice.

The case of Rhodes v. The City of Cleveland, 10 Ohio Rep. 159, with admirable good sense and strength of reason, answers this question, by asserting that corporations are liable, like individuals, for injuries, although the act was not beyond their lawful powers. The late learned Ch. J. Lane, who pronounced the opinion of. the court in that instance, accounts for the elder cases, upon-the ground that courts were hampered by the mystic notion attached to corporate seals, by which corporations withdrew themselves from responsibility, and cast it uPon their agents. A sort of transcendentalism which' enveloped both the courts and the profession in a mist growing out of the airy nothingness of the subject matter, enabled corporations, like the pestilence which walketh unseen, to do their mischief and escape the responsibility. It is refreshing to the jurist, and important to the rights of individuals, that these confused notions are yielding to a clearer light and more solid reason. The late Chief Justice, in the same case, manfully asserts the freedom of judicial action in matters of this sort, where for ages the professional and judicial mind has been hampered by the declaration that, in cases like the present, he did not look so much for precedents as to the following out of incontestable principles. In pursuance of this declaration he asserts, with unanswerable force, upon the most solid foundations of reason, morality and law, “ That the rights of one should be so used as ‘ not to impair the rights of another, is a principle of morals ‘ which, from very remote ages, has been recognized as a maxim of the law. If an individual, exercising his lawful powers, commit an injury, the action on the case is the familiar remedy. If a corporation, acting within the scope of its authority, should ‘ work wrong to another, the same principle of ethics demands of ‘ them to repair it; and no reason occurs to the court why the < same remedy should not be applied to compel justice from ‘ them.”

We recognize the doctrine of that case, as laid down by this court, as founded in the most solid reason, right and morals, and a majority of the court have not the slightest disposition to impair its obligation, but, by the light of such example and assurance, hope that the whole subject matter of corporations will, in the end, be reduced to the control of incontestable principle.

There is another reason: If a municipal corporation,for the good of all within its limits, see proper to cut down a street, it is nothing more than right that an injury there done to a single individual, should be shared by all.

Judgment reversed, and cause remanded.

Birchard, J.

dissenting. I dissent from the above opinion. The extent to which this Court has ever gone in sustaining an action against a corporation, falls far short of what was necessary to sustain this case. In my opinion, the Court of Common Pleas gave the law to the jury correctly. So thought this Court upon the circuit, and the judgment was affirmed. I should cheerfully retrace that decision, and indeed would desire to do so, if not entirely satisfied of its correctness. The case of Rhodes v. Cleveland, 10 Ohio Rep. 159, established' a new principle, before unknown to the profession in this and our sister States. It was one that justice seemed to demand; and for myself I can here say, that as I understand it, and as it was understood by the learned Judge who delivered the opinion in that case, I have no desire to shake its authority. It goes not further than to subject a corporation to an action, upon a state of facts which, would have subjected a natural person. Apply that principle to this casé, and there was no error. The rights of the public to the highway, for the legitimate purposes of travel, and improving the road, are as perfect and absolute as the rights of a natural person are to his private property in lands. This right extends to all above and all below the surface, and he may use his own as best pleases himself, doing no unnecessary injury to his neighbor. If he choose to erect buildings or fences, so as to throw a- part of his neighbor’s garden adjoining him into the shade, no action can be sustained for the injury. If he sees proper to dig up his own soil, or to grade down his own lot, he may do it, taking cafe not to undermine his neighbor’s structures, or to break the soil of his neighbor’s lot, and no action will lie, although it may make it necessary for that neighbor to accommodate himself to the same grade.

The town council of Akron kept themselves strictly within the powers conferred upon them. They touched not the plaintiff’s soil; did not undermine his houses, fences, or other structures; did nothing wantonly, maliciously, or negligently. Every act was strictly legal. So that no consequences flow from it that would have made a natural person liable, had he the owner and performed the same acts. The injury, and the only injury to the plaintiff in such a case, must have been of the same nature as that which is sustained by the owner of a village lot, whose neighbor has graded down his own adjoining lot without disturbing him in any manner. The Court of Common Pleas charged the jury, in substance, that for such a cause no action could be maintained. The books abundantly sustain them. In a legal sense, there was no injury; nothing which the law recognizes as such. . The amount in controversy in this case is of no moment; but the principle which this decision establishes is of great importance. It is pregnant with mischievous consequences, which, when fully developed, will be too grievous to be borne. They will reach, if carried into practice, every portion of the State, and obstruct the improvement of all public roads, ways, and alleys, in each town, village and city. My hopes are still, that the rule applied in this case may be limited to the office of reversing the judgment before us, that it may live and die with the cause which brought it into being; and if not, that it may be hereafter understood and limited by my brethren as I would now limit it — giving a right of action against a corporation only upon a state of facts that would subject a natural person if committed by him instead of the corporation.  