App. Div.] may have been in the insecure foundation. The insecurity would exist in the dangerous combination, and the negligence in the imprudence which created it without the exercise of that ordinary care in prior inspection which it may be presumed would have disclosed the fact of the risk. The action is properly brought in the name of the town. (Town of Fort Covington v. U. S. & C. R. R. Co., 8 App. Div. 223; affd., 156 N. Y. 702; Town of Palatine v. Canajoharie W. S. Co., 90 App. Div. 548.) I think also that the proof is prima facie sufficient to establish the plaintiff's corporate interest in the highways and bridges which are the subject of the action with respect to the damages sued for. A more difficult question is presented by the appellant's claim that inasmuch as the supply of water to the defendant municipality is a governmental function, no action will lie for the consequences of negligence in any feature connected with its discharge. I do not think, however, that any case can be found in this State which absolves a municipal corporation from the duty of exercising ordinary care in the management of its property, even where the property is devoted to a governmental purpose, or which permits such corporation under the guise of governmental use to negligently invade and destroy the property of another. The plaintiff has the same rights in the premises as would a private citizen whose building might be carried away in a flood negligently created by the defendant, and as the only express authority in the State at present is in favor of the right of action, under such circumstances, I am inclined to the view that the suit may be maintained. The authority referred to is the case of Mayor, etc., of New York v. Bailey (2 Den. 433). It was therein held that an action lies against the corporation of the city of New York for injuries occasioned to the property of third persons by the negligent and unskillful construction of a dam on the Croton river, although such dam was a part of the works which were built pursuant to an act of the Legislature for the purpose of supplying the city with pure and wholesome water. The general principles were recognized that a property owner in the construction of a dam is bound to use that degree of care which would be proportionate to the extent of the injury which would be likely to result to others should the work prove insuffi SECOND DEPARTMENT, JULY, 1904. [Vol. 96. cient, and that a municipal corporation is responsible for the negligence or unskillfulness of its agents and servants when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. The first trial of that case resulted in a judgment of nonsuit, which was reversed on appeal to the Supreme Court. (Bailey v. Mayor, etc., of New York, 3 Hill, 531.) The dam had been constructed by persons who were employed for that purpose by water commissioners appointed under the act, and the legal question considered on that appeal was whether the city was so connected with the work as to be liable for the wrong. The reversal of the judgment was based upon the assertion that the powers conferred upon the municipality were not granted for public purposes exclusively, but also for purposes of private advantage and emolument, and that, therefore, the corporation, quoad hoc, was to be regarded as a private company, notwithstanding the fact that the public might derive a common benefit from the exercise of such powers. The doctrine of that decision has been often criticised in its application to the facts of the case, and may be considered as finally overthrown by the decision of the Court of Appeals in Fire Insurance Co. v. Village of Keeseville (148 N. Y. 46), where it was expressly held that in the construction and maintenance of a system of water works the legislative grant of power to a municipal corporation is to be regarded as exclusively for public purposes, and as belonging to the corporation in its public, political or municipal character. That action was brought, however, not for damages resulting from the invasion and destruction of private property, but for the nonuser or misuser of the power conferred upon the corporation by its failure to keep the water system in an ample and effective condition for the extinguishment of fires. The same principle was enforced for the benefit of counties in Hughes v. County of Monroe (147 N. Y. 49) and Markey v. County of Queens (154 id. 675), where recoveries were sought for personal injuries resulting from negligence. In the more recent case of Lefrois v. County of Monroe (162 id. 563) there was, it is true, a nuisance created to the damage of the plaintiff's land and stock, but the property of the county where the mischief was done was under the control of county officials by whom the nuisance was created App. Div.] SECOND DEPARTMENT, JULY, 1904. and against whom it was declared the action would be maintainable. The court said (p. 567): "It is also to be remembered that the responsibility of this defendant for the acts of its officials is not the same as that which obtains in the case of ordinary municipal corporations." The basis of the decision was the fact that the defendant as a corporation did not commit the wrong against which the litigation was aimed. In Maxmilian v. Mayor (62 N. Y. 160) and Ilam v. Mayor (70 id. 459), cited by the court in Lefrois v. County of Monroe (supra) as authority for the proposition that municipal corporations when performing governmental functions are not liable for negligence to third persons whose property rights are invaded, it will be found that each decision is based upon the fact that the persons by whom the damage was occasioned were independent officers, not subordinate to the city, and for whose negligent acts as officials the city was not liable. Moreover, in the Maxmilian case, Mayor, etc., of New York v. Bailey (supra), as reported in Denio, was cited with apparent approval, and Judge FOLGER said (p. 170) that where the city "authorizes a use of its corporate property, which use itself makes that property harmful to others, it is liable." On the second trial of the Bailey case the plaintiff recovered a large sum for the injury done to his land by the breaking of the defendant's dam, and the judgment was sustained in the Court for the Correction of Errors, not upon the doctrine advanced by the Supreme Court, which, as I have said, has since been overruled, but upon the general proposition that the owner of real estate, although a municipal corporation, and although the real estate has been acquired for the construction and maintenance of a municipal water works system, is nevertheless responsible for injury done to the property of others by its negligent acts and the negligent acts of its employees in the management of such property. Attention has not been directed to any case in which that proposition has been held to have been misapplied in the case of a dam constructed so negligently and unskillfully by a municipal corporation as to cause the property of others to be swept away and destroyed on the ground that in the general construction and maintenance of its water works system the corporation is discharging a governmental function. In the Bailey case the defendant was the corporate predecessor of this defendant, the water works system was the same, and SECOND DEPARTMENT, JULY, 1904. [Vol. 96. the injury was of the same character as that now under consideration. The question of exemption upon the ground of sovereignty was suggested by counsel upon the second appeal in that case, but was not considered by the court, the main question discussed being whether the relation of principal and agent existed between the corporation and those by whom the dam was constructed, and the liability was finally based upon the duties and responsibilities incident to the ownership of property. It is to be noted in the case at bar that the erection of the flashboards was no part, so far as appears, of the original legislative scheme of construction, but was the voluntary act of the defendant. It was admitted on the trial that the work of placing the flashboards upon the crest of the dam was done by the defendant, so that no question is presented such as arose in several of the adjudicated cases relating to the defendant's freedom from liability because of the acts of independent officials over whom it had no control. The many cases in which a municipal corporation has been held exempt from liability to respond in damages for personal injuries, occasioned in the negligent exercise of governmental functions, have no controlling application to the case, because the property of the citizen is protected by a constitutional provision from the assault even of the sovereign unless just compensation is made for the taking involved. Neither the State nor any political division can take the property of others for public use without just compensation. (Const. art. 1, § 6.) It can hardly be claimed that an act which results in a trespass upon and the actual injury to or destruction of the property of a citizen is not the taking of such property at least pro tanto, and such an act cannot be defended as an exercise of sovereign power which may not be redressed by action. It certainly could not be defended by legislative sanction, if at all, without express legislative authority for the performance of the specific act complained of (Morton v. Mayor, etc., of New York, 140 N. Y. 207); and where the act is of such a nature as to constitute a positive invasion of the individual rights guaranteed by the Constitution, legislative sanction is insufficient as a protection. (Seifert v. City of Brooklyn, 101 N. Y. 136.) If this action cannot be maintained the plaintiff is apparently without adequate remedy, and on the principle for which the appel App. Div.] lant contends a private citizen whose property should be injured or All concurred. Judgment and order affirmed, with costs. NOTE. The rest of the cases of this term will be found in the next volume, 97 App. Div.- [REP. |