domestic purposes is distinct from the right to use it as a means of propelling machinery. A city must provide other means for elevating water to its reservoirs, if the use of the water of a river for such purpose will impede navigation.1 Neither can a city impede the navigation of a river by drawing off water to sell to its citizens, to be by them used for the supply of manufacturing establishments, for baths, and other purposes of business or pleasure, outside of the domestic wants of its citizens, without paying damages to persons suffering special injury by the obstruction of the navigation.2

VI. Nor permit it to be done. Neither can a municipal corporation permit one person so to use property over which it has control as to create a nuisance injurious to another, without answering in damages. This doctrine has frequently been applied to nuisances in connection with streets, high ways, and bridges.3 But, as elsewhere seen, it does not apply to nuisances arising from the non-exercise of its governmental powers.5

VII. Rule in Ohio, Illinois, Wisconsin, Minnesota. — In these States, the broad rule-more analogous to the maxims of the civil law, and more consonant with the principles of justice — obtains, that a municipal corporation, in respect of its conduct, stands on the same footing as individuals; if it commit an injury, albeit in the exercise of its lawful powers, it must pay damages, even though it acts without malice or negligence. The maxim Sic utere tuo ut alienum non lædas

1 Philadelphia v. Collins, 68 Pa. St. 106; Philadelphia v. Gilmartin, 71 Pa. St. 140.

3 Lawrence v. Fairhaven, 5 Gray, 110; Aurora v. Reed, 57 Ill. 29; Damour v. Lyons, 44 Iowa, 276; Wendel v. Troy, 4 Keyes, 261; Baltimore v. Marriott, 9 Md. 160. Contra, Stackhouse v. Lafayette, 26 Ind. 17; post, XX. 4 Ante, II.

5 Levy v. New York, 1 Sandf. S. C. 465; Kelley v. Milwaukee, 18 Wis. 83. 6 Rhodes v. Cleveland, 10 Ohio, 159

7 Akron v. McComb, 18 Ohio, 229; s. c., 15 Ohio, 474.

applies to it as well as to a natural person, and it is entitled to no greater privileges in the use of its property than is accorded to a private corporation or to an individual. If, therefore, in constructing any of its public works, it artificially turns surface-water upon the land of a conterminous proprietor, it must pay him damages, just as a private person would, under like circumstances, be bound to do; and this wholly irrespective of the question whether the injury result from the necessity of the work, the plan of it, or the execution of it. This rule commends itself for its common sense, its simple justice, and the ease with which it may be understood and applied.

VIII. Non-liability for Ultra Vires Acts. If an act from which an injury results be wholly beyond the powers conferred on a municipal corporation, the latter cannot be held responsible in damages for the doing of it.3 Thus, where the selectmen of a town, without a corporate vote, erected an embankment some distance from the highway, for the purpose of turning all the waters of a stream into one channel, to obviate the necessity of building more than one bridge, the town was not liable in damages to a land-owner whose land was flooded thereby. So, where the officers and agents of a corporation assumed to build a bridge, under authority of a statute not constitutionally passed for want of a two-thirds vote, and, in consequence of its negligent construction, the bridge fell, the corporation was not liable to a person thereby sustaining injury. But if it be within the scope of such powers, and be authorized by the munici

1 Nevins v. Peoria, 41 Ill. 502; Rhodes v. Cleveland, 10 Ohio, 159; Pettigrew v. Evansville, 25 Wis. 233. See Hoyt v. Hudson, 27 Wis. 656. 2 As to non-liability for acts ultra vires its officers or agents, see post, IX.

3 Schumacker v. St. Louis, 3 Mo. App. 298, per Lewis, P. J.; Anthony v. Adams, 1 Metc. 284, 286; Albany v. Cunliff, 2 N. Y. 165 (reversing 2 Barb. 190). See Stetson v. Kempton, 13 Mass. 272; Norton v. Mansfield, 16 Mass. 48; Parsons v. Goshen, 11 Pick. 396.

+ Anthony v. Adams, 1 Metc. 284.

5 Albany v. Cunliff, 2 N. Y. 165 (reversing 2 Barb. 190).

pal officers invested with jurisdiction to act upon the subject, or be afterwards ratified by the corporation, even impliedly, a liability will arise in like manner as if the act had been done by an individual. A mere technical departure from the mode in which a power is directed to be exercised will not, in such a case, discharge the corporation.2

IX. Application of the Doctrine of Respondeat Superior to Municipal Corporations. — Upon grounds already stated,3 courts have frequently denied the liability of municipal corporations for acts of their officers pertaining to public matters. In such cases the officer is looked upon, not as a servant of the corporation, but as a public officer, responsible directly to the laws. But the general rule is, that municipal corporations, in cases where they are liable at all, are held to the same liability, in respect of the negligence of their officers and servants when acting about their official employment, which attaches to private corporations and to individuals.5 This does not, in general, make the corporation liable for the acts of its officers done in excess of their authority, although it is liable for their trespasses upon property of individuals when acting about its private business, unless they act

I Schumacker v. St. Louis, 3 Mo. App. 298; Thayer v. Boston, 19 Pick. 511; Lee v. Sandy Hill, 40 N. Y. 442.

2 Schumacker v. St. Louis, 3 Mo. App. 299; Pekin v. Newell, 26 Ill. 320. 3 Ante, III

4 Maximilian v. New York, 62 N. Y. 160 (affirming 2 Hun, 263); Detroit v. Blackeby, 21 Mich. 84 (Cooley, J., dissenting); Barney v. Lowell, 98 Mas s. 570; White . Phillipston, 10 Metc. 108; Bigelow v. Randolph, 14 Gray, 543; Hafford v. New Bedford, 16 Gray, 297; Child v. Boston, 4 Allen, 52.

5 Hilsdorf v. St. Louis, 45 Mo. 94, 97; Ross v. Madison, 1 Ind. 281; Cotes v. Davenport, 9 Iowa, 227; Templin v. Iowa City, 14 Iowa, 59; Deryoe v. Saratoga Springs, 1 Hun, 341; Bailey v. New York, 3 Hill, 531; s. c., 2 Denio, 433; Delmonico v. New York, 1 Sandf. S. C. 222; Lloyd v. New York, 5 N. Y. 369; Carman v New York, 14 Abb. Pr. 301; Cincinnati v. Stone, 5 Ohio St. 38; St Paul v. Seitz, 3 Minn. 297.

6 Mitchell v. Rockland, 41 Me. 363; 45 Me. 496; 52 Me. 118. See Lee v. Sandy Hill, 40 N. Y. 442; Hanvey v. Rochester, 35 Barb. 177; Hilsdorf v. St. Louis, 45 Mo. 94; Gilmartin v. New York, 55 Barb. 239.

7 Buffalo Turnpike Co. v. Buffalo, 1 N. Y. Sup. Ct. 537; Carman v. New York, 14 Abb. Pr. 301; Hanvey v. Rochester, 35 Barb. 177; Lee v. Sandy

from motives of private malice or revenge,' although the law does not, in general, take into account the motives with which such persons act. From this doctrine it follows that exemplary damages will not, in general, be awarded against a municipal corporation.3 It has been held by some courts,+ and denied by others, that a municipal corporation may make itself liable for the tortious acts of its agent by ratifying them. A municipal corporation is not, however, liable for the negligence of an independent contractor, or his employees, unless the acts which caused the injury were done in pursuance of the contract itself, or otherwise under the direction of the city;7 or unless the city, through its officers, Hill, 40 N. Y. 442; Quinn v. Paterson, 27 N. J. L. 35; McGary v. Lafayette, 12 Rob. (La.) 66, 674; s c., 4 La. An. 440; Walling v. Shreveport, 5 La. An. 660; Wilde v. New Orleans, 12 La. An. 15.

1 McGary v. Lafayette, 12 Rob. (La.) 668, 674; s. c., 4 La. An. 440. Contra, Bennett v. New Orleans, 14 La. An. 120.

2 Benjamin Wheeler, 8 Gray, 409.

3 McGary v. Lafayette, 12 Rob. (La.) 668, 674 (Bullard, J., dissenting). But damages in this case were finally given upon the principle "that the actual loss sustained is not the measure of damage, and that the jury had a right to take into consideration the violent and illegal proceedings of the officers of the corporation." McGary v. Lafayette, 4 La. An. 440.

4 McGary v. Lafayette, 4 La. An. 440; Ross v. Madison, I Ind. 281; Thayer v. Boston, 19 Pick. 511.

5 Mitchell v. Rockland, 52 Me. 118, 125; McGary v. Lafayette, 12 Rob. (La.) 676. Paying for work has been considered evidence that the work was done under corporate authority. Ross v. Madison, I Ind. 281.

Painter v. Pittsburgh, 46 Pa. St. 213; Erie v. Caulkins, 85 Pa. St. 247; Reed 7. Allegheny City, 79 Pa. St. 300; Pack v. New York, 8 N. Y. 222; s. c., Seld. Notes, 94; Kelly v. New York, 11 N. Y. 432; Barry v. St. Louis, 17 Mo. 121; Gent v. New York, Seld. Notes, 240; Nevins v. Peoria, 41 Ill. 502; Hilsdorf v. St. Louis, 45 Mo. 94, 98. Contra, Nashville v. Brown, 9 Heisk. 1; Bush v. Steinman, 1 Bos. & Pul. 404; Delmonico v. New York, I Sandf. S. C. 222; Buffalo T. Co. v. Buffalo, 1 N. Y. Sup. Ct. 537. Bush v. Steinman, I Bos. & Pul. 404, holding the contrary, is one of the most distinctly overruled cases in the books. Hilliard v. Richardson, 3 Gray, 363. Nashville v. Brown, 9 Heisk. 3, which follows Bush v. Steinman, is entirely out of the line with the current American authority.

7 Nevins v. Peoria, 41 Ill. 502, 515, per Lawrence, J.; Robbins v. Chicago, 4 Wall. 657, 679; s. c., 2 Black, 418. To the same effect, see Hole v. Settingbourne, etc., R. Co., 6 H. & N. 497; Ellis v. Gas Consumers' Co., 2 El. & Bl. 767; Newton v. Ellis, 5 El. & Bl. 115; Lowell v. Boston, etc., R. Co., 23 Pick. 24; Storrs v. Utica, 17 N. Y. 104; Palmer v. Lincoln, 5 Neb. 137; Scammon v. Chicago, 25 Ill. 424; Clark v. Fry, 8 Ohio St. 379; Buffalo v.

reserved a general control over the contractor;' but a mere reservation of power to direct changes in the work, or the taking of a bond of indemnity,3 will not have this effect.

X. Injuries from Establishing and Changing Grade of Streets. Municipal corporations are not liable at common law for injuries necessarily resulting from grading or changing the grade of their streets, when the work is done in a careful and skilful manner.5 Thus, it has been held that a city may, in the exercise of its discretion, raise the grade of a street so as to compel adjacent property-owners to raise their buildings at great expense, and yet will not be answerable to them in damages. But, as in other cases of the exercise of statutory powers, if its officers and agents, in doing the work, act negligently, and thereby inflict damage on a property-owner, it must pay for it.?

Holloway, 7 N. Y. 493; s. c., Seld. Notes, 25; St. Paul v. Seitz, 3 Minn. 297; Lockwood v. New York, 2 Hilt. 66.

1 Schwartz v. Gilmore, 45 Ill. 455; Chicago, etc., R. Co. v. McCarthy, 20 Ill. 385; Chicago v. Joney, 60 Ill. 387; Chicago v. Dermody, 61 Ill. 431; Harper v. Milwaukee, 30 Wis. 365, 374; Hannon v. St. Louis County, 62 Mo. 313.

2 Erie v. Caulkins, 85 Pa. St. 247; Reed v. Allegheny City, 79 Pa. St. 300; Pack v. New York, 8 N. Y. 222; Nevins v. Peoria, 41 Ill. 502. Contra, Harper v. Milwaukee, 30 Wis. 365. Compare Blake v. Ferris, 5 N. Y. 48. 3 Erie v. Caulkins, 85 Pa. St. 247. 4 Wilson v. New York, I Denio, 595; Murphy v. Chicago, 29 Ill. 279.

5 St. Louis v. Gurno, 12 Mo. 414; Taylor v. St. Louis, 14 Mo. 20; Radcliff's Executors v. Brooklyn, 4 N. Y. 195; Nebraska City v. Lampkin, 6 Neb. 27; Schattner v. Kansas City, 53 Mo. 162; Wegmann v. Jefferson City, 61 Mo. 55; Ellis v. Iowa City, 29 Iowa, 229; Cole v. Muscatine, 14 Iowa, 296; Creal v. Keokuk, 4 Greene (Iowa), 47; Callender v. Marsh, 1 Pick. 417; Thurston v. Hancock, 12 Mass. 220; Quinn v. Paterson, 27 N. J. L. 35; Tate v. Missouri, etc., R. Co., 64 Mo. 149; O'Connor v. Pittsburgh, 18 Pa. St. 187; Reynolds v. Shreveport, 13 La. An. 426; Benden v. Nashua, 17 N. H. 477; Green v. Reading, 9 Watts, 382; The Mayor v. Randolph, 4 Watts & S. 514. The same doctrine of immunity extends to individuals or private corporations authorized by statute to improve roads. Governor, etc., v Meredith, 4 Term Rep. 794; Sutton v. Clarke, 6 Taun. 29; Boulton v. Crowther, 2 Barn. & Cress. 703; Henry v. Pittsburgh, etc., R. Co., 8 Watts & S. 85.

6 Murphy v. Chicago, 29 Ill. 279.

7 Nevins v. Peoria, 41 Ill. 502; Bloomington v. Brokaw, 77 Ill. 194; Indianapolis, etc., R. Co. v. Hartley, 67 Ill. 439; Dixon v. Baker, 65 Ill. 518 (modifying Moses v. Pittsburgh, etc., R. Co., 21 Ill. 516, and Murphy v.