
    *Philo Scovil v. C. M. Geddings and others.
    'Officers acting in good faith, under an order regularly made by town trustees for grading a street, are not liable for injuries sustained by individuals in such grading.
    
      This cause was adjourned from the county of Cuyahoga. It was a special action on the case, for an injury to a lot of land and house owned by the plaintiff in the town of Cleveland. The alleged injury was committed by the defendants acting under .an order of the trustees of the town for grading the streets. In making this grade, the earth was removed in front of the plaintiff’s house and lot, by which he was put to inconvenience and loss; but no unnecessary damage was done, and no act performed except, in good faith, under the order of the trustees. The court charged the jury that the plaintiff was entitled to recover, and a verdict was rendered for the plaintiff for five hundred dollars damages. A motion was made for a new trial on the grounds of error in the charge and excessive damages.
    Andrews and Port, for defendant,
    and in support of the motion :
    The action is not maintainable. It is a contradiction in terms •to say that an action in tort can be maintained for a lawful act lawfully performed. In all declarations in case, it is or should be averred that the act which constitutes the foundation of the suit, was wrongfully or unlawfully done; and in Callender v. Marsh, 1 Pick. 435, Chief Justice Parker remarks that, “in no case can a person be liable to an action as for a tort, for an act which he is authorized by law to do.” The motion shows that the act complained of in the case before the court was a lawful act.
    The action is not maintainable, because the defendants are public agents, acting lawfully within their jurisdiction. This point was expressly decided in the cases of the Gunner and Company of the Glass Plate Manufacturers v. Meredith and others, 4 Term, 794; Steele v. Western Lock Navigation Company, 2 Johns. 286; Sutton v. Clark, 6 Taunt. 42; Boulden v. Crouther, 2 Barn. & Cress. 703; Callender v. Marsh, above cited, and Harmon v. Tappender and another, 1 East, 555.
    In Boulton v. Crouther, it was decided by the court of king’s bench that trustees under a general turnpike act, who were authorized to grade and repair roads, were not liable for *any consequential injury resulting from an act which they were authorized to do. In delivering the opinion of the court, Chief Justice Abbott expresses himself as follows: “If the act done'be an act which the trustees were authorized to do, the next question is, whether any individual who has sustained some injury from the act done, can maintain an action at the common law; that he can not, is expressly laid down by Lord Kenyon and Justice Buller, in the ease of the Plate Class Company. It seems-to me that the case is a distinct authority upon the point.” Justice Holroyd remarks that “it would be absurd to hold that an action would lie against them (the trustees) for doing an act which they are empowered by act of Parliament to do.” Mr. Justice Little-dale takes a distinction between persons acting for their own benefit, and public agents acting for the benefit of the public.. “I agree (he says) that a private individual must use his own land so as not to injure that of another, but the private individual acts for his own benefit, and ought not to obtain a benefit at the-expense of his neighbor. But where an act of Parliament vests a power in trustees to be exercised by them, not for their own benefit, but for that of the public, and gives no compensation for' damages resulting from an act done by them in the execution of that power, the legislature must be taken to have intended that an-individual should not receive any compensation for the loss resulting to him from an act so done for the public benefit.” It is-confidently submitted that these cases settle the point, that tirsaction is not maintainable against these defendants at common, law, and that no authority can be found in which it has been-decided that public agents are liable in tort for acts done by them within their jurisdiction, and where no negligence or malicious motive are imputed to them. The cases of Goodloe and Smith v. City of Cincinnati, Ohio, 500, 514, do not conflict with those above cited. 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 in the case for damages-may be sustained against such corporation — a doctrine which is-not controverted here. If an action can be maintained at all against a corporation for the consequences of a lawful act, it is-submitted that it should be in assumpsit upon a promise implied by law in consideration of benefit derived from that act to the corporation, and this was the opinion of Justice Littledale, above *referred to. At any rate, if the court should be of. opinion that in this case an action might have been maintained against the corporation upon the ground that the act complained of was-done for their benefit, still it is respectfully submitted that it ' rehould not extend to their agents, acting lawfully, and for whose benefit the work was not performed; that the rule should not ■extend beyond the reason which supports it, and that such an interpretation of the law, by putting an end to .public agencies of this description, would be contrary to public policy and subversive of important public interests. If judgment is rendered against the defendants in this case, they can have no redress against the ■corporation. 2 Wilson, 133; 8 Term, 186.
    Again, it is contended that the action can not be maintained, because, at the time the street was laid out, and the right to alter and grade it was acquired by the public, the plaintiff, or those under whom he claims, was paid for the interest of which he was thus deprived. When the land of an individual is appropriated as a highway, the public are bound to make him compensation for any injury he may sustain. The use of the highway, the right to alter, grade, and repair it, and the effect which the exercise of these rights may have upon land adjoining the highway, are all embraced in the estimate of damages, and these damages being ■once assessed, the question of compensation (while the public use and improve that highway in a lawful manner) is at an end; ■otherwise they might be compelled to pay for the privilege more than once.
    Finally, the suit can not be maintained, because the statutes au- ■ thorizing the improvements complained of, prescribed a particular mode of assessing damages and making compensation. Itds •conceded that where there is a common law remedy, and also a ■ statute remedy, not inconsistent with it, either may be resorted to by the party aggrieved; but where (as in this case) there was .no remedy at common law, and the statute prescribes one, the latter alone must be pursued. See, upon this point, the opinions ■of Justices Buller and Grose, in the case of the Plate Glass Company, 4 Dunf. & East, 794.
    The act amendatory of the act incorporating the village of •Cleveland (23 Ohio L. L. 321, see. 2, and which is the law under which the work was done) appointed three persons to appraise the damage which had accrued or might accrue to the property ■of any person whatever by reason of the grading, *and to assess the amount of such appraisal upon lands in the village according to the benefit derived thereto, from the improvements which might be or had been made — a provision which would be defeated if a suit could be maintained in any other form; as in that event the debt must be paid from the general funds of the-corporation, and not by a discriminating tax as contemplated by the act. The very object of this provision might have been to establish a uniform rule for the assessment of damages, and to relieve the corporation from a multiplicity of suits.
    Whittleset and Newton, for plaintiff:
    In this action it is insisted, by the defense, that no action in tort can be maintained, because the defendants acted carefully. If we-should admit that the defendants acted carefully, and that no injury accrued to the complainant, then no action could be maintained; but it can not but be admitted that the plaintiff has sustained an injury, and that by the advice and direction of those against whom this suit is brought, and the injury does not arise from the breach of a contract.
    If the law under which the earth was pretended to be dug from the door of the plaintiff, does not repeal the common law, it is-manifest that this is the appropriate form of action. By the common law, any one who committed an injury, or advised or directed it to be done, was liable to the party injured. This grading law (and this is a very appropriate term) directs what course may be pursued by the party injured. It does not thereby repeal the common law, but it is merely cumulative. We regard the common law as having the same influence over the acts done by the-defendants as if no remedy had been pointed out by the act under which they profess to act. Whether they are agents or principals-can make no difference if this action can be maintained at all.
   Judge Grimke

delivered the opinion of the court:

There is no question with regard to the authority of the-trustees to execute this work. The act, 33 Ohio L. L. 220, expressly confers it upon them, nor is it pretended that the defendants in doing the act complained of, were not acting within the scope of this authority. Then the principle of law, that where individuals are exercising a power which the law has *given them they can not be made answerable for it in any form of action, applies It is a principle of universal application, and is absolutely necessary to the protection of all those in whom any public trust is confided. The case of Goodloe v. City of Cincinnati does not contradict this position. There it was decided that when the corporation of a town acts illegally and maliciously to the prejudice of an individual, an action on the case for damages may be sustained against them. In Leader v. Moxton, 3 Wils. 461, a special action on the case was sustained against pavers for raising the street in the front of the plaintiff’s houses, by which the passage and lights to the houses were obstructed. In the British Glass Plate Manufacturers v. Meredith and others, 4 Dunf. & East, 789, this case is denied to be law, and Lord Kenyon even doubts the accuracy of the report of it. Prom the language of Gould, who speaks of the defendants having misdevieaned themselves in the trust confided to them, and of having committed an enormous injury to the plaintiffs, it may reasonably be inferred that they had exceeded the powers committed to them, and as the abuse of an authority given by the law renders the party a trespásser ab initio, the case, even as it is reported, is reconcilable with the general principle of law. At any rate, if it is intended to carry any further meaning than this; it can not be considered as law, and it is contradicted by nearly the whole current of English and American authorities. The case last mentioned from Dunford & East was nearly the same as in Wilson. It was an action on the case against commissioners appointed by a paving act; and it was decided that neither they, nor any persons acting under them, were liable for any injury occasioned to the plaintiffs by altering and raising the street. Lord Kenyon said, “if this action can be maintained, every turnpike act, paving and navigation act, would give rise to an ' infinity of actions; some individuals suffer an inconvenience under these acts ; but the interests of individuals must give way to the public welfare.” Callender v. Marsh, 1 Pick. 418, was precisely the same as the ease before the court, and it was there decided that “ a surveyor has authority, by the statute, to dig down or raise a street, and if he does it with discretion, and not wantonly, a party injured can not maintain an action against him nor against any other person.” In the case in Dunford & East, Buller said he was clear the action could not be maintained upon general principles, and he was *also of opinion that the provision in the act for making compensation would also forbid the idea of any action being maintained. The provision for making compensation was nearly the same as in the act of March 7, 1835, amending the charter of incorporation of the town of ■Cleveland. It will be observed that the indirect injury which may be done to private property by lowering or raising a street, ■does not come within section 4, of article 8, of the constitution of ■Ohio. Private property is not taken for public uses, but a damage or inconvenience only is sustained by private property. Ample provision, however, has been made by the law for remunerating the plaintiff, and if he does not choose to avail himself of it, he certainly can not succeed in this action. Infinite mischief would be the consequence if he could. No man could be found •bold enough to engage in any public trust, if the law which invested him with authority were to be converted into a weapon of •defense against himself.

As neither upon precedent nor upon principle, can this action be sustained, a new trial must be granted.  