
    CITY OF ST. LOUIS vs. PETER GURNO.
    A corporation is not liable to an action for damages consequential upon the grading and paving of a street, directed by the corporate authority, in pursuance of an ordinance authorized by its charter.
    
      APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OP THE CASE.
    This was an action on the case brought by the plaintiff against the defendant to recover damages which plaintiff claims he sustained by reason of certain improvements made by the defendant in the grading, paving, &c., of certain public streets in the city of St. Louis, and which improvements caused the overflow of plaintiff’s premises in times of heavy rains, and no adequate means of carrying off said water were provided by the city. Damages were laid at $2000. To this action ihe defendant pleaded the statutory plea of the general issue.
    On the trial, it appeared on the part of the plaintiff that he owned the property in question before the improvements were made by the city. That there was a natural gully through which the water escaped that collected on 7th and Wash streets. That in 1843 ihe city caused 7th and Wash streets and other streets adjacent thereto to be graded and paved, and irr order to carry off the water, they cut a ditch or sewer from the corner of Seventh and Wash to an alley between 7th and 8th streets. That the water increased after the making the improvements, and the sewer made by the city was insufficient to carry off all the water. That the owners of property in that vicinity, including the plaintiff’s, were desirous to have the streets improved, and took steps to have it done, and the whole difficulty arose from the insufficiency of the sewer. That the requisite sewer and such an one as would save the property in that section of the city would cost 330,000 or $40,000. Testimony was also given'to prove the damage sustained by the plaintiff, but which it is not deemed material here to notice.
    On the part of the defendant it appeared by the testimony of Kenry Eeyser, who was City Engineer when the improvements were made, that from St. Charles street northwardly to Wash street, lies in the lowest part of the valley that lies between two elevations on the east and west; that the water from these regions runs down on to 7th street northwardly as far as Wash street, and there turns westwardly in a gully which communicated to sink holes into which the water escapes. That when 7th was paved, the gully was dosed up at its intersections with 7th street, and the water was directed to run northwardly on Was h to its intersection to an alley between 7th and 8Eh streets, and thence carried up ©n that alley until it met again the old gully. When 7th street was paved the water had washed out gullies wide and large from Morgan street north to Wash street, and that before said improvements were made most of the cellars along 7th street, on both sides northwardly from St. Charles to Wash streets were filled with water after heavy rains. That from the elevation of the intersection of 7th and Wash streets, there is a certain descent to these said holes, and that in conducting the water through the alley, in digging the ditch particular care was taken to divide that descent equally the whole length the water had to run to the sink holes, and in establishing the grade in that neighborhood, particular care was taken that not more water be drawn into 7th street than would naturally flow there. That the course of the water was diverted because of the improvement on 7th street, and that the gully went through private property. That the course of the gully, before the improvements, ran from a point about 15 feet north of the intersection of Wash street westwardly to the middle of the block where it now intersects the ditch cut by the city. That these overflows result from the large area that is drained into 7th by the ridges and the natural increase of water by the improvements. That plaintiffj at the time of the construction of the ditch, informed witness it would ruin his property. That the water has been increased by the improvements of the streets.
    On the trial it was agreed that all the streets alluded to are public streets. That the grading and paving of the streets, and the construction and obstruction of the culvert or sewer near the corner of Wash and 7th streets, and the change in the original course of the gully or ravine, was by the city of St. Louis and authorised by it. The foregoing was all the proof in the case.
    At the request of the plaintiff the court gave the following instructions to the jury; “If the jury believed from the evidence that the plaintiff was the owner of the premises in the declaration mentioned, and that the city of St. Louis, the defendant, in the improvements they made upon the streets and alleys leading to and by the premises of the plaintiff, caused mud, water and filth to flow by and along the premises of the plaintiff, and that the works so constructed to carry off said water, filth and mud, was not of sufficient capacity and size to carry off the said water, mud and filth aforesaid, and that the same was thrown upon the premises of the plaintiff, and overflowed his cellar and buildings, and that the plaintiff sustained damages to his house and lot, they will find the defendant guilty, and assess such damages as the said plaintiff has proved he has sustained.”
    “It was the duty of the city in making the improvements above referred to, to make improvements, construct such culvert or sewers as would te sufficient to carry off the water, carried or flowing that way, so as not to damage or injure private property.” To the giving these instructions, the defendant at the time excepted.
    Defendant asked the following instruction: “If the jury believe from the evidence that the improvements made by the city at and adjacent to the property of the plaintiff, were made in a skilful and proper manner by the officers of the city, they will find for the defendant, though the jury should believe that said improvements caused the injury complained of by the plaintiff's;” which instruction the court refused to give, and the defendants then and there excepted to such refusal. And thereupon the jury found the defendant guilty, and assessed the damages at $1675 00.
    
    The defendant then filed a motion to set aside (he verdict and for a new trial, for the following reasons:
    1st. Because the verdict is against law, against the evidence, and against law and evidence.
    2d. The court erred in refusing instructions asked by the defendant, and in giving instructions asked for by the plaintiff,
    3d- The court erred in excluding evidence offered by the defendant.
    4th. The damages are excessive.
    Which said motion was heard by the court, and the plaintiff's having entered a remittitur of $675, the motion to set aside said verdict and for a new trial was overruled, to which de* fendant excepted and took an appeal.
    BlenerhassEtt for appellant.
    1st. A municipal corporation is not liable for injuries to third persons resulting from public improvements. Wilson vs. City of New York; 1 Denio Rep. 595; 4 Sargeant & Watts Rep. 514; 9 Watts 382.
    2d. The court below assumes in the first instruction given for the appellee, and in that refused to be given for the appellant, that a corporation is liable in all cases where improvements made produce or cause injuiy and damage, whether the corporation and its officers and agents were guilty of neglect and unskilfulness or not. Such a doctrine cannot be sustained by any principle of law or reason, and is against public policy.
    3d. A corporation can only be liable in damages where she constructs public works or makes public improvements on her own property, and for her own benefit, and injuries are sus-. tained thereby by third parties, and all the authorities sustaining a recovery under such cir. cumstances are based on principles arising from this fact. 2 Denio Rep. 434.
    4th. And whose damages are sustained by the neglect or unskilfulness, §c., of such agents orofficers, they are not civilly liable, but can only be proceeded against by impeachment or indictment. 1 Denio Rep. 596.
    
      5th. The charter of St. Louis of 1839, and the amendments thereto of 1841, do not make it compulsory on the city to make improvements, or construct works therefor, it merely empowers her to do so. The 8th clause of the firs't section of the 3rd article of the charter of 1839, confers this power; ánd it is as follows: “Sec. 1. The city counsel shall have powers within the city by ordinance ’’ 8th Clause, “To open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues, lanes and alleys.” This power being discretionary, to be exerted or Withheld, according as the council may deem it becessary or proper. It is in it’s nature judicial, and the officer is exempt from all responsibility by action for the motives which influence him, and the manner in Which such duties are performed. It is otherwise where the duty is absolute, certain and imperative. Then he acts ministerially, and he is responsible for his delinquency, an’d is bound to make redress to every person Who suffers by his misconduct.
    6. The plaintiff and appellee complains that the city did hot make suCh a culvert or sewer as would be' sufficient to carry off the water, mud, 4-c., that accumulated at or near plaintiff’s premises, and the court instructed the jury that the city should have done so, and an omission to do this made the city liable. The reasons and principles advanced in the 5th point will apply here, and the grounds assumed come Withifi the principles settled in the case of Wilson vs. The City of New Tork. 1 Denio Rep. 595.
    Fíele & Hall for appellee.
    1st. The city of St. Louis, as a corporátiotí, Was liable to the appellee fdr the construction of an insufficient sewer or culvert on Wash street, whereby the water flowing along and by the premises oí the appellee was darned up, thereby overflowing the cellar of the said appellee, and causing great injury and damage to his house.
    2. The fact that the city o'f St. Louis is a municipal corporation, empowered by its charter and the ordinances of the city to grade and pave the streets, construct culverts, and make 'other improvements, does not exempt it from liability for neglecting to perform that duty in Shell a manner as to occasion no injury or damage to private property. Jh this case it cleaily appears that the property of the appellee has not only been greatly diminished in Value, but bis house and buildings have been partly destroyed by the water thrown back upon his premises by this defective and useless work of the city.
    It is evident the appellee was never disturbed in the enjoyment óf his premises until the •construction of this culvert, and the change of thé channel where the water flowed at the time the appellee made his improvements. If it was necessary for the improvement of the city, and the saving of expense to the property holders' in said corporation to grade the streets in the north wesl part of the city, so as to turn all1 the water flowing along said streets into 7th street, so as to destroy the use and value of property in that street, then there is no reason why the corporation should not be liable.
    There is no force in the proposition that the grading, paving and opening streets and alloys is a discretionary power, and can bé exercised in any manner, however detrimental to private property, without rendering the city liable.
    In the case now before the court, the city did proceed to exercise the power of grading and paving the Streets, in the declaration mentioned, and also to inake and construct a sewer or culvert by the premises of the app'ellee, and in exercising that power they were bound to do it in such a manner as to cause as little injury to private property as possible, and to make the sewer of such size and capacity aS to carry off the Water flowing in that direction.
    If the city undertook to make the sewers or culvert on the corner of Wash and 7th streets; for the purpose of affording a channel for the water flowing down said streets during freshets and rainy seasons, they were bound to make it of sufficient size and capacity for that purpose; and if they failed to do so, and private property was destroyed or damaged in consequence, the city is unquestionably liable in an action for damages.
    Authorities. 19 Pick. 511; 2d Denio, 433; Baker vs. Boston, 12th Pick.; 12 Wheat. 40; 10 Ohio, 159, 4th lb. 613; 1 Adolphus & Ellis, 526; 3rd Louisiana! 46l.
   Judge Narton

delivered the opinion of the court.

The only question presented by this record, is whether the city of St. Louis is liable to an action for damages consequential upon the grading and paving of a street, directed by the city authorities in pursuance of an ordinance authorized by the city charter. The declaration in this case charged that the work was done so negligently that the water, which before the improvement of the street passed off by a natural channel, was thrown upon the plaintiff’s premises, and overflowed his cellars, and otherwise greatly impaired the value of his'building; but upon the trial, the court instructed the jury that the corporation was liable for the injury complained of, whether the grading of the street and the culvert constructed to carry off the water were properly made or not. So that the naked question is presented, whether the corporation is answerable in a civil action for consequential injuries of this charac*ter, however skilfully her agents may have executed the powers en^ trusted to them.

There is, no doubt, great difficulty in legislating so as always to secure a harmonious co-operation of private rights with public convenience, and it will prove a delusive expectation, to hope that any efficient municipal organization, either in states or cities, can be maintained, without an occasional restriction upon the enjoyment of private property. It has long since passed into a maxim, that the safety of the people is the supreme íaw, and as a corollary from this ancient truth, that individual convenience must yield to the public good. How far this principle may be extended, so as not to impair that enjoyment of private property which it is the duty of all just governments to protect, is a question which must be addressed td the political power in a government. The remedy for injuries sustained by acts of local municipal legislation is best obtained by a judicious limitation of the power thus entrusted to corporations, or by suitable provisions in the charter, for equitable compensation to the parties injured. It will be quite obvious, that if actions at law are sustained to adjust these questions, a wide door willlbe opened to speculation; litigation will be grealy increased, and the efficiency of municipal corporations very much impaired. It can scarcely happen that streets and alleys in a city, where there are considerable inequalities of ground, can be constructed upon any uniform plan, without producing considerable inconvenience to the owners of lots adjacent to the streets or alleys so improved. The houses built upon high points of ground, must necessarily be left at an inconvenient elevation above the level of the street, and those built upon low ground be found partially covered up. If both these classes of lot owners can maintain their actions, the municipal corporation must be embarrassed by multiplied suits and heavy damages for the construction of works, which in all probability have been undertaken at the instance of the very persons who thus ask for redress. Moreover, if the damages which result from the improvement constitute a claim against the corporation, it would be nothing more than equitable that the advantages arising therefrom in the increased value of the lots should constitute a counter claim against the owner of the lot, and should to this extent form a set-off against the supposed injury. The difficulty of adjusting such questions, in an action at law, would seem to show the impolicy of such actions, and the greater necessity for providing for their settlement in a more convenient and less expensive mode. Our impression is, that such actions as the present cannot be maintained» The distinction taken by the counsel in the argument of this case between the acts of municipal corporations in the discharge of such legislative functions as have been delegated to them by the State, and those acts which are done by mere private corporations or by municipal corporations, in the prosecution of a mere private enterprise, we take to be a sound one. Where a municipal corporation engages, in an undertaking, having no reference to her municipal duties, or the interests of the public at large, but merely for her private emolument or convenience, she is then upon the same foot with any individual or private corporation* and is unquestionably answerable for her acts precisely to the. same extent that an individual would be. Tliis distinction has been recognised by the adjudged cases to which we shall hereafter advert. At present we shall only observe that the act complained of in this case was clearly one of those done in pursuance of a power vested by the charter in the city of Saint Louis for public purposes. If the city corporation be liable to such actions, the State would be equally liable for similar acts, if the Legislature, in pursuance of the constitution, had provided a mode of sueing the State.

If a fqrt or arsenal be erected upon public ground', but so near to a private dwelling house as greatly to impair its value, no action lies against the State. 4 Term R. 794. If a public road be constructed, the proprietor of an adjoining house, who is injured consequentially, js without remedy, unless the injury be of sucha character as comes within the constitutional restriction against taking private property for public use without compensation, or has been expressly provided for by law. A dwelling house in the country may be situated so near to a rail road constructed by the State as to render it unfit for inhabitation, yet it cannot be pretended that the owner could maintain an action against the State for damages. It would doubtless be good policy to provide in the act authorising the public work, for a compensation to individual citizens for injuries produced in this indirect mode, by the construction of the yoad or canal, but if no such provision is made, the loss of the citizen would be damnum absque injuria, No public work could be constructed, however important to the great interests of the community it might be, without being a source of endless litigation, if it be held that remote and consequential damages will lay the foundation of an action at law against the State ; and a municipal corporation in discharging a portion of the legislative power entrusted to it for public purposes, will occupy the same ground as the State, and its irresponsibility in such cases de-, pends upon the same principles.

The question we have been considering is not a new one, and we are not without authority, both in England and in several of our sister States, fully sustaining the position we have assumed.

In Wilson vs. Mayor, &c., of New York, (1 Denio 597) the action was very similar to the present. The plaintiffs sued the city of New York, for so carelessly grading and paving a street, that the water was prevented from flowing off from the plaintiff’s premises, and for omitting to construct a drain or sewer by which the water could be carried off. The court held that the action would not lie. They considered the corporation of the city as not responsible for damages occasioned by the construction of works of this character, which the charter of the city expressly authorized them to make, and that, although it was the duty of the city authorities to build the sewer or drain, the want of which was camplained of, yet for a neglect qf this duty the corporation was not responsible in a civil action.

The case of Mayor of New York vs. Bailey, (2 Denio 433) which was determined in the court of errors about the same time with the de-. cisión of the supreme court in Wilson vs. Mayor, &c., we do not understand as at all conflicting with the principles determined in the latterpase. The court of errors held, as the supreme court had held pre-, yiously, that the corporation of New York was liable for the negligence and unskilfulness of its agents, in so constructing a da.m across the Croton riyer, where that stream is diverted for the purpose of' supplying the city with water, that a freshet swept away the dam and with it the buildings and other property of the plaintiff, situated on the stream below the dam. The liability of the city in a case of this sort, supposing that the work had been, b.uilt under the superintendence of its own officers, was not questioned, Jt was a case where the municipal corporation engaged in. a private enterpirse. Although the work was undoubtedly, to some extent, a great benefit to the community at large, yet it was not properly undertaken by the city in its municipal character, but as a mere private corporation for the sole convenience and benefit of the corporate body. A corporation may be authorised to engage in works of this description ; and when it does so, it is responsible to the same extent as an individual. It is no longer exercising a portion of the sovereign power which has been delegated to it for municipal purposes. The court of errors therefore held, that this corporation, though not liable for acts requiring the exercise of discretion, when those acts are for the benefit of the public, yet was liable for the acts of the agents it voluntarily employed to do business for its own private benefit, the same as any other corporation or individual.

The principal difficulty in that case arose out of the fact that the commissioners appointed to superintend the erection of the work were appointed by the legislature of New York and not by the city ; and it was-upon this ground mainly that the case was contested and gave rise to> some difference of opinion among the members, of the court. This point however has no bearing upon the subject now under consideration.

In Pennsylvania the liability of' municipal corporations in cases like the present, has been considered by the courts, and their repeated adjudications are against the liability of the corporations. In Green vs. The Borough of Reading, (9 Watts 382) the action was brought by a citizen of the Borough to recover damages against the corporation for filling up the street in. front of his house, whereby he lost the use of an alley, and the use and occupation of his house and lot. The court held, that the action would not lie; that the corporation, having the power by charter to pass ordinances for improving the streets, was not responsible for exercising that power, although it might produce temporary inconvenience to individuals.

The same doctrine was fully recognised by the supreme court of Pennsylvania in the case of Mayor, &c. vs. Randolph, (4 Watts & Terg 516.) This was an action against the city corporation of Philadelphia for causing a lot belonging to the plaintiffs to be áverflowed by stopping up a water course, which had been previously drained off by some natural channel, and the court held, that the action would not lie, although the obstruction complained of in this case was produced by the city in an attempt to improve their own private property. The court, however, declared that the only question was, whether the city had authority for making the improvement, and refused to permit any enquiry into the purposes which might have been i,n contemplation in making such improvement. Whether the principle thus asserted would not conflict with the doctrine maintained in the case of the Mayor, &c. vs. Bailey, (2 Denio 433) is not material to be considered, as the case is only cited in support of the general position heretofore taken, and it will not weaken the force of the decision that the court carried the general principle to an unwarrantable extent in applying it to the facts of that case.

In Massachusetts the same general principle is distinctly recognised in the case of Callender vs. Marsh, (1 Pick. 418) and strongly enforced and illustrated by argument and authority. That was an action against a surveyor of the highway for digging dovm the streets by the plaintiff’s dwelling house, and taking away the earth, so as to lay bare the foundation1 walls of the house, and endanger its falling; in consequence of which the plaintiff was obliged, at great expense, to build up new walls, and otherwise secure his home. After determining the question that the surveyor, under the laws of that State, had power and authority to dig down streets, about which question there was much discussion, the court held that the surveyor was not liable, unless indeed his acts, were ihe result of a malicious and wanton exercise of power. They declare that a person cannot be liable to an action as for a tort, for an act which he is authorised by law to do. It is manifest that there is no principle upon which the surveyor of roads in that S'tate could be exempted from responsibility for an act done in pursuance of law, which would not have applied to a municipal corporation, had the same duties been entrusted to it.

The case of Thayer vs. city of Boston, (16th Pick. Rep.) merely decided that the city corporation was liable to an action on the case for acts done by its authority, it being conceded that the acts done were illegal and wrongful.

• The case of Goodloe vs. city of Cincinnati, (4 Ohio R. 600) has been supposed to be an authority in support of the doctrine that corporations in cases of consequential damage are liable to actions on the case,. The opinion of the court in that case is very brief, and see«ns merely to maintain the doctrine that municipal corporations are liable to-actions on the case for damages consequential upon illegal and malicious acts of their officers, such illegal and malicious acts having been authorised by the corporation. The question in that case came up on a demurrer to a declaration, and although the liability of municipal corporations in such cases upon general principles was largely and ably discussed by the counsel, the decision of the court was confined to very narrow grounds. “All corporations,” say the court, “act by agencies, and those agencies are composed of men who may be influenced by reprehensible motives, or tempted to do acts not warranted by law. In this case the act is charged in the declaration to have been illegal and malicious.When a corporation acts illegally and maliciously, we conceive it ought to be made directly responsible. Such is the plain dictate, of justice, and we see no technical rule of law that forbids us to act upon it.” It will be obvious tiiat this opinion does not touch the present case; that it has no application to the question wjiere the corporation is admitted to have done an act which the law authorised, and where the act is done for public benefit, and in the discharge of functions purely municipal. The distinction between municipal corporations and private corporations or individuals is not adverted to; and the whole case seems to have turned upon a question, at that time much discussed in courts, whether corporations could be sued at all in actions of tort.

The case of Rhodes vs. city of Cleveland (10 Ohio Rep. 159) is still more unsatisfactory. The facts of the case are not stated, but the court maintain the responsibility of the corporation in the most unqualified terms. “If an individual” say the court, “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.” Upon this reasoning the court came to the conclusion, that “justice and good morals required that a corporation should repair a consequential injury, which ensues from the exercise of its functions.” Whatever may be thought of the moral obligation resting upon a municipal corporation or a State to redress injuries to individuals occasioned by an exercise of lawful and constitutional power, the question to be determined is, whether upon principles of law there is a liability in such cases to an action, and in determining the question it is manifest that the supreme court of Ohio, did not advert at all to the distinction between the liabilities ■of individuals and those of a State or municipal Corporation. That such a distinction had been taken in all the English CaSes, seems to be conceded} and I am aware of nothing in the policy of our form of government to prevent its application here. The decisions in New York, Pennsylvania, and Massachusetts, we hav'e seen, are in conformity to this principle, and the supreme court of the United States in Gossley vs. Corporation of Georgetown (6 Wheat. 593) indirectly -sanction th© same principle.

In the case of the governor See. vs. Meredith and others, (4 D. & G. 794,) it was held, that where an act of parliament authorized commissioners to pave, by re&s'ó& of which an individual was injured in his property, and there was no excess of jurisdiction oh the part of the commissioners, neither they nor their servants were liable for such acts. The same point was determined in Sutton vs. Clark (6 Taun. 42) and Harman vS. Tappenden (1 East. 555.)

A question has been suggested, although it does h'C't arise here, Whether a wanton and malicious or negligent and unskillful exerbiSe of powers belonging to a corporation, would not render the corporation liable. That the agents of a municipal corporation rvbuld be responsible for Wanton and malicious injuries to individuals, under the pretext of discharging duties imposed on them by law, cannot be doubted, and Under Certain Circumstances} the corporation who appoints them will be equally liable. Harman vs. Tappenden 1 East. 555; Chesnut H. Co. &c. vs. Rutler 4 Serg. & Rawle 6 ; 3 Wils. 561. Such acts, from their very nature, must be either the assumption of powers not granted by law} or the abuse of Such as have been granted, and are therefore o longer within the protection of the general principle.

Judgment reversed*

Judge Bírch

dissenting*

Municipal Corporations having beeii ulmbSt cotemporary with the earliest institution of political sovereignty, no sufficient reason is perceived why the rule applicable to iheir transactions should not have been moulded into cotemporary consonahce with the radically opposite and progressive systems of government, which} amongst us, are held even farther to have overshadowed the advances of freedom once marked by them, than those advances were renowned and cherished for having supplanted in their early day} the assumed prerogatives of princes and the odious exactions of the feudal systeffi* Being but “sovereignties within a sovereignty,” the idea would seem, even at first perception too implausible to be entertained, that in this State, at least, they are either more or less than the constitution and the laws of their creation expreSsly permit them to be ; and as it is the master maxim of the noble science we afe called to ádmihister, thát “ rules cease with the reaso?i’s which gave them being” the mind need pause but littlé to scan either the conflicting definitions of English commentators, or the doctrines of English judges, when seeking to ascertain either the nature of the duties of such institutions originating here. Being, moreover, without the means of accurately comparing with our •own the statutory enactments of the older Atlantic states, the deference which is usu&lly rendered to the decisions of their courtá, may be at least respectfully waived in the consideration of the case before us. It may bé, that the legislatures of those states (like the British parliament) háve felt themselves indued with an “ omnipotence” so far transcending the constitutional authority of ours, as to justify them in investing the corporations bf th'eir creation with the exemptions asserted for them by their judicial tribunals. With us, however, the case is conceived to be not only radically different, but too plain and unambiguous to require, in the elucidation of the point in issue, any other authority than the guaranty of the constitution, to which the act incorporating the city seems to have been strictly and intelligently conformed.

By the 7th sub-division of the 13th article, it is declared that “courts bf justice ought to be open to every person, and certain remedy Afforded for every injury;” and, whilst it may be admitted that the language is but declaratory, it is nevertheless maintained, that, consistently with its sworn duty, the legiéíatuf e could not have authorized an “ injury” to be done, either directly or indirectly, in such a manner as to exclude the injured citizen from “certain remedy ?” Nor has it done so. The law incorporating the inhabitants of the city not only does not exempt, but expressly subjects them to be “sued,” and to “defend” themselves just as an individual or “ natural person;” and as it will not be pretended that for such an injury as the one complained of, one citizen would not be liable to the suit of another, it is respectfully submitted that the legal stature of this corporation, in respect to the immunity which is 'claimed for it, is as definitely fixed as that of the humblest or the proudest man within its limits, and that the act complained of, can have no analogy to the c'ommon láw exemptions, “ damnum absque injuria.”

If we descend, br rather ascend, from what is deemed to be the lavó in this case to the reason of it, it will be deducible from such reflection as commences at the right point, that the constitutional declaration which is relied upon as a guaranty here, was but the proper recognition of a great and all-embracing political truth which had been long dawning upon mankind, and which (when permitted) should be no less respected in their courts than in other departments of their government. It is that “ upon no just principle do we commence the exercise of public power, for the general benefit, except at the point where experience or reflection may have demonstrated or suggested that ordinary private regulations are inadequately adapted to the necessary end—and it follows, as a consequence, that the public power thus invoked and moulded into action, can only be exercised for the public benefit, by the public agents, at the public expense.” All beyond or below this is public usurpation, or unmitigated public aggression—and the latter, in this case, seems too glaring and fundamental to be sanctified even by a judicial misapplication of the maxim which has been translated from our shield, to vindicate here the public right to commit, and unredress, a public wrong !

As to the impolicy, therefore, of subjecting corporations to suits of this character, if it were even an open judicial question, no sufficient reason occurred why a citizen who may sue his neighbor, should be restrained from similarly suing 6 or 7,000 (incorporated) for an injury which, as was proven in this case, despoiled him in contempt of his most earnest and admonitory protest, of atleast half the value of his property in a manner so unqualified and absolute, as to be redressed by a jury the vicinage, with all the facts before them, in a verdict of $1,675. That suits for smaller injuries might be brought by others, is conceived to be no more a reason for denying the right in respect to a corporation than as between individuals, and unless words have strangely lost their meaning, the constitutional injunction would seem to be as inoperative in the one case as in the other—leaving to the every day discretion and prudence of the injured party, whether for damages comparatively slight, he will incur the trouble and expense of asserting his rights.

From these premises, predicated upon our own system of constitutional [guaranties and just government, it may be readily admitted, without at all impairing the reasoning applicable here, that all the more ancient doctrines and “ authorities” (?) sustain amply and even redundantly the conclusions arrived at by the seinor members of this court. It is relied, however, on the other hand, that the more enlightened adjudications of later years, had been gradually adopting principles more congenial to the policy of our governments, and the changed condition of the age in which we live, until it may be proudly heralded, that in one of the states at least, American jurisprudence has nobly disentangled itself from the iflnex labyrinths of English precedents, and the great moral and political truth, that “ corporations like individuals should be liable in a suit for consequential damages, caused by a lawful act,” has been enstamped with the wonted dignity of a legal principle. Rhodes vs. the city of Cleveland, 10 Ohio 159. In reasoning to this conclusion, the eminent chief justice who declivered the opinion of the court remarked, that he did not look so much for precedents, as to the following out of ineontestible principles ; and as the opinion in that case, and in a previous one before the same tribunal, constitute the principal official concurrence which can be referred to in support of this dissent, the language and conclusions of those judges, in lien of the inferior originality of a less practised and more diffident judicial pen, will be interwoven, and as far as practicable adopted in conclusion here.

It did not appear to the court there, to be a sufficient reason against sustaining such a verdict as this, that in other states the remedy against corporations had not been carried so far. So long as it was kept apparent to a cool and enlightened investigation, that they did not transcend the line to which they were conducted by acknowledged principles, the mere fact that they might be going farther than adjudged cases had gone before, occasioned them no disquiet. It was in fact their duty to add the weight of precedent to the scale of right—and had they faltered, under such impressions as they seem to have entertained, no epithet would have been too severe to have applied to so great a derelection, as having foregone the convictions of a deliberate judgment to the mere numerical preponderance of previous decisions. It was admitted then, as now, that in the elder cases, whilst courts were hampered by the notion that corporate acts were to be performed under the authority of their seals, no suit like the present could be entertained. The agents, only, were regarded as responsible to persons injured. It was argued, however, with conclusive force, that since the great increase of corporations, and since so much of the business of the world is transacted through their agency, it becomes necessary that courts should meet their expanding poioers by an extension of the limits of their liability; and that one of the peculiar benefits which our system of jurisprudence possesses, is its capacity of enlargement and adaptation to the exigencies of the varying forms of social life.

££ 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 law. If an. individnal, 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.”

Whilst the reasoning in the Ohio case, just quoted, is deemed; to be irrefutable, and should consequently dispose of this case, there remains ^mother, and perhaps to many minds, even a plainer view to be taken of it. In the conclusion of the constitutional sub-division already referred to, it is declared that no private property ought to he taken or applied to public use without just compensation”—and it will not be pretended that the legislature co.uld authorize to be done, by a cowardly indirection, what the permanent will of the State had decreed, and written down in its constitution, ought not to be done in any spanner. In the case of Hooker vs. a canal company, the supreme court of' Connecticut held (note in U. S. Digest, vol. 1 p. 401) that ££ an injury to land which deprived the owner of the ordinary .us.e of it, is equivalent to a ££ taking” of the land ; and whpreno compensation is provided for, pr made to the owner for the injury sustained, he is entitled to recover damages for such injury.” In the case now under consideration, the testimony was plain, abundant and unequivocal, that in consequence of' the manner of paving the streets, and of the, insufficiency of the sewer, the water and filth of that part of the city was, thrown upon and into the lower story of the plaintiff’s house—sometimes rising even into the rooms of the second floor—undermining, sinking and throwing down portions of the foundation, cracking the walls and (altogether) rendering the property comparatively uninhabitable and valueless. The Connecticut case, which simply ££ deprived the owner of the ordinary use of his property”* could scarcely have been stronger than this; and if the judge of the court of' common pleas had given to the jury an additional instruction, in the words of that decision, it is imperceivable how, upon the principles of common sense or common justice (the only true foundations of common law) it could have been objected to as erroneous. 4s little could it.be objected to, if, in our courts, as in others, 9 Dana 114; 14 Ohio 147, 541; 5 Blackf’d 384, any benefit confered upon property thus injured or “ taken,” was allowed to be equitably set off’ against the damage complained of. Even in this case, the main Ipody of the testimony touching the measure of damages, seems to have. liad specific relation to the comparative value of the property before and after the city improvements which caused the injury ; and the instructions of the court, when applied to the evidence, could have left to the jury no improper discretion as to any other measure of assessment. That instruction, was in these words :

“ If the jury believe, from the evidence, that the plaintiff was the owner, of the premises, in the declaration mentioned, and that the city of St. Louis (the defendant) in the improvements they made upon the streets and alleys, leading to and by the premises of the plaintiff, caused water, mud and filth to flow by and along the premises of the plaintiff,, and that the. works so constructed to carry off said water, filth and mud, was not of sufficient capacity and size to carry off the said water,, mud and filth as aforesaid, and that the same was thrown upon the premises of' the plaintiff, and overflowed his cellar and buildings, and that the plaintiff sustained damage to his house and lot, they will find the defendant guilty, and assess such damages as the said plaintiff has, proven he has sustained.

That this, is substantially the rule which ought to be applied in cases like the present, and that it would in no just sense impair the necessary-efficiency of city corporations, may be restated in. the recapitulation, which will close this paper.

1. The public alone, who judge of the necessity, and who enjoy the-convenience and reap the benefit of public improvements, should bear-whatever damage is thereby occasioned to pre-existing private rights. If, therefore, this case were referable, even in a greater degree than, has been supposed, to thq jurisprudence of other states and countries, the deference ordinarily paid to the opinions of those who have merely written before us, should ever be subordinate to the conviction, that as the judicial edifice which they have been rearing is but the work of finite and discordant minds, it becomes the duty of each tribunal, in its turn, to contribute to the symetry and perfection of its proportions, by no less firmly resisting and modifying such rules as are clearly erroneous, than by respecting and conforming to those which are hallowed by reason as well as by time.

2. As a judicial decision upon such a subject as this, however, should be based somewhat upon the political science of the country where it is rendered, and as with us, the constitution records that science, we should construe, if possible, as in unison with the spirit of that instru_ ment, all subsequent emanations.' of the. legislative will; and, as the act of 1843 contains nothing, even, by rational implication, to exempt the corporators from the ordinary liabilities of an individual, hut on the contrary expressly renders them liable just as a natural person” would have been, the verdict of the jury who simply found the fact, and assessed the damages, under proper instructions from the court, should not be disturbed for any reasons upon the face of the record here.

These considerations, which might be greatly amplified and extended, have restrained a reluctant diseoncurrence both with the ethics and the law, which, having driven a citizen from his home now drives him from the halls of justice with the abasing humiliation confirmed to him in the shape of a judicial decision, that if the authorities of his great and growing city, to the treasury of which he renders his yearly proportion, see fit to employ the aggregate taxes thus accumulated, to empty upon him, instead of carry to the river, the wash and offal of all the neighboring streets and alleys, the saving to the city renders it an injury” of that class, for which the policy of the law allows him no “ remedy /”

Such a citizen (it is as respectfully as earnestly submitted) is but tantalized when told, that under certain circumstances” if he can establish that the corporation acted “maliciously,” ho can make them pay. That question was not in issue, and perhaps will never be, under the advice of any lawyer, who appreciates intelligently the difficulty of technically sustaining such an allegation. So long, therefore, as the city is subject alone to a rule like that, its corporation will be comparatively omnipotent, its inhabitants, by turns, oppressors and vassals.  