Green v. Borough of Reading , 9 Watts 382 ( 1840 )

The opinion of the court was delivered by

Huston, J.

The plaintiff in error was plaintiff below, and brought this suit to recover damages from the borough of Reading, for filling clay and gravel in one of the streets of that borough, opposite the dwelling house of the plaintiff. None of the facts or of the testimony was brought up; and we have the naked question, whether in one of our boroughs, where by the act of incorporation the power of improving and repairing the streets is given to the corporate officers, they can fill up a hollow place or dig down a hill which is too steep for convenient use. By an act of assembly passed the 29th of March 1813, concerning the borough of Reading, among other powers given to the corporation in the 6th section, they are empowered “to make such ordinances as by a majority shall be deemed necessary to promote the peace, good order, benefit and advantage of said borough, particularly providing for the regulation of the markets; improving, repairing, cleansing and keeping in order the streets, lanes, alleys and highways of said borough; 'for making ditches, drains and sewers, to dispose of and cany off the water of said borough.” In the language of the president of the common pleas, “the law confers th„e power to improve the streets: this involves that which was done by the defendants. In the improvement of streets, it is often necessary to cut down some places and to fill-up others. No town (except one on a nearly level site) could be improved unless the streets could be thus graded.” There was not, as appears from the opinion of the court, any allegation of malice, or even of wanton disregard of private right; it also appears that it was done in pursuance of a regulation, made some time since, and which has been carried into effect in different parts of the borough.

Every man sees when he purchases or builds, whether his lot is on high or low ground, whether the street is level or steep opposite to his property : and he is bound to know, that every highway or street may by law, be made more convenient for public use, than it was in a state of nature. That hills may be cut down, and low or swampy places raised; that if one side of the road or street is higher than the other, it may be made level from side to side, though in doing this, a house on one side may be left somewhat more above the level than could be wished, and on the other somewhat below it.

Although this power has not, so far as we know, been controverted in this state, yet it seems to have undergone judicial decision in other places. It came before the court of King’s Bench in 4 Term Rep. 794, and was decided in favor of those who raised the road. It again appeared in the common pleas, Sutton v. Clarke, 6 Taunt. 29, where it was decided on the point, that defendant was acting under the authority of an act of parliament, deriving no emolument to himself personally, and acting to the best of his skill, and within the scope of his authority and so not liable for consequential damage; this case, says C. J. Gibbs, is totally unlike that of an indvidual, who, for his own benefit, makes an improvement on his own land according to his best skill and diligence, not foreseeing it will produce injury to his neighbour; if he thereby though unwillingly injure his neighbour, he is liable. The resemblance fails in this most important point, that his act is not done for a public purpose, but for private emolument; here' the defendant executes a duty imposed on him by the legislature, which he is bound to execute.

The matter did not rest here, it came again before the King’s Bench, 2 Barn. & Cres. 703. An act of parliament had authorized certain persons to make, alter and improve a road. The court observed that digging down and filling up, were the most ordinary and most effectual way of improving roads; the case in 4 Term Rep. 794, is cited and approved, as also Sutton v. Clarke, and it is laid down, that if those appointed by law to make or improve a road act within their jurisdiction, and with their best skill, they are not answerable for consequential damages; that they may be answerable if they act arbitrarily, carelessly or oppressively: and this disposes of the case in 3 Wils. 461, where for so acting they were held liable; and also of 4 Ohio Rep. 500, where it was said to be done oppressively and maliciously.

There is also a case in 7 Peters 443. The supreme court of the United States decided that they had not jurisdiction, but the case was an action against the city of Baltimore, for damages consequent on certain improvements of the streets, and in the city court damages were recovered, but on a writ of error this was reversed in the court of the last resort in Maryland, and they refused to grant a venire de novo, because no action lay.

In the commencement of the opinion of Chief Justice Gibson, in 3 Penn. Rep. 259, where the point was not precisely the same as here, yet he recognizes the power of improving and making safe and convenient the streets, and it is treated as a power incident to every incorporated borough or city. If I am not mistaken in my recollection, the same matter has been decided in the same way in Massachusetts.

On authority, then, and on principle, the decision of the common pleas was right, and I suspect though there may be a temporary inconvenience, the plaintiff will find he has not been injured ; no one thing which can be effected by man, tends more to increase the growth and prosperity of a town or city than good streets. The advantage to the whole town soon raises property in every part of it, and is to the advantage of every inhabitant.

Judgment affirmed.