The Chesnut Hill and Spring House Turnpike Company against Rutter.
In Error.
THIS was an action of trespass on the case, in the Common Pleas of Montgomery county, for stopping a water course.
The declaration stated, that the defendants below, the plaintiffs in error, were incorporated by an act of assembly, Passe<* on the 5th day of March, 1804, entitled, “an act to enable the Governor of this Commonwealth, to incorporate a company to make an artificial road, from the top of ChesnUt EiHi through Flourtown, to the Spring House tavern, in Montgomery countythat the plaintiff was seised of a messuage> tanyard, and tract of land, through which a rivulet from time immemorial, had flowed, &c.; and that the de- ¶ , . ' 77 iendants contriving, and wrongfully, and injuriously intend-to injure the said plaintiff, and to deprive him of the ^>ene^t working and tanning leather, in the said tanyard, and of the profit that might accrue therefrom, did -wrongfully and unjustly erect and set up, certain jetties or piers, on *7each side of the said rivulet, by reason whereof, the said rivulet was thrown back, and overflowed the said tanyard, and destroyed a great quantity of hides, &c.
*6Monday, March 30.
poration aggregate for a tort. An action of trespass on the case, lies against a cor-
that ¡fthenarr. actoompíained of, was nnmonjfuiiy settmg'f(M’th.U<: negatively, within the scope of the corporate powers of the sufficient! 'lAt goocTafter ^ *S verdict.
*7By the 9th section of the act of incorporation, the company had power “ to erect permanent bridges over all the waters crossing the said road.”
The jury found a verdict in favour of the plaintiff, for 305 dollars.
The errors now assigned were, 1. That the Court below permitted an action to be maintained against a body corporate for a tort.
2. That the declaration, if such an action could be maintained, set forth no cause of action.
E. Ingersoll and Jngersoll, for the plaintiffs in error.
A recurrence to the history of actions will shew, that as early as the time of Bracton, a distinction existed between those which arose ex contractu, and those which arose ex delicto. Anciently the action of debt, was almost the only remedy for the recovery of money. Trespass was confined to cases of force. In the time of Edward I. debt was the form of action in which money was recovered, whether due on parol con-< tracts or by specialty; specific chattels in detinue, while trespass was restricted to cases of direct and immediate injury to person or property, In the reign of Edward III. debt continued to be the usual remedy for the recovery of money on most contracts, but actions of account, annuity, and covenant, were also in use. Trespass became in this reign more general, but was usually confined to the redress of injuries to the person, as by battery or assault, .and to property, as by taking goods and entering into houses and lands ;• it was never held, however, to extend to corporate bodies. About the middle of the reign of Edward III. the statute of Westminster 2d, authorised writs to be framed in consimili casu, under which the action of trespass was greatly enlarged in its scope, and so modified as to be adapted to every man’s own case. The first action of this description, occurred in the 22d . ear of this reign, and was brought against a man who undertook to convey the plaintiff’s horse across the Humber, and so overloaded his boat, that the horse was lost. *8During the reigns of Richard II. Henry IV. and Henry V. actions on the case became very frequent. In the time of Henry IV. the term trespass on the case, was in familiar use. Before that period, this action, though applied to cases of consequential damage, was called an action of trespass simjts nature and character were then better understood, ancj tjje distinction between trespass and trespass on the case, was marked by a more nice discrimination. Whether it could be maintained on an executory promise, was much discussed at this time; it was, however, discountenanced, and did not receive the sanction of the Judges until the reign of Henry VII. Reeve’s History of English Law. Part i. 230. Part ii. 28. 36. 158. 179. 182. 297. 346. Part ii. 22. Hen. 7. It was never, however, pretended, that an action of trespass yi et armis, would lie against a corporation, which, from its nature, is incapable of committing a tort; nor can the same thing in effect be done, by changing the form of action, and calling it an action on the case. Corporations can no more be guilty of torts than executors; the analogy between them,' in this respect, is strong, and it has been decided, that trover does not lie against an executor for a conversion by his testator. Hambly v. Trott. Indeed, it was once doubted, whether assumpsit would lie against a corporate body, because it could make no promise without affixing its seal, and the Supreme Court of this state, went so far on one occasion as to decide, that it would not. Breckbill v. Turnpike Company. The remedy for a tort is not against the corporation, but against the individual who commits it, who may have his action over against those who employed him. The relation of master and servant, as it exists between individuals, does not hold between corporations and those who act under their orders. Kyd on Corp. 223. 260. 450. If the servant of a corporation commit an assault and battery, it will not be pretended, that the corporation is responsible. If it be not responsible for an assault and battery committed by its servant, the relation of master and servant does not exist; because nothing is more clear than that a master is responsible for the torts of his servant, committed in the course of his master’s business. How can a distinction be drawn between an assault and battery, and injuries of the nature of *9that complained of in this suit ? It is impossible to say whére the line should be placed.
Corporations are the creatures of the law, of a highly refined and intangible nature, whose properties and attributes, lawyers alone can understand. Deriving their existence from the law, they must be governed by the terms of the law which creates them. They must proceed and be pursued in the path prescribed by the law. If the corporators do an act, beyond their corporate powers, they, as individuals, and not the corporation of which they are members, must answer it. If the corporation itself enter into a- contract not authorised by its charter, no action founded on the contract can be sustained, though the individual members may-be sued. Suppose an insurance company should undertake to make a turnpike road, or to build a church,'could those who were employed by them, recover against the corporation as such ? Every principle of the ..law of corporations forbids it. Now, a corporation never was ..and never can be authorised by law to,commit a tort; they can invest no- one with power for that purpose. If, therefore, an agent constituted for a-legal purpose, inflict an injury, the corporation.' is no- more answerable, than it would be for an act of that agent, done without any authority whatever derived from it, because being unauthorised to commit awrong,"itis out of the, :scope of its corporate powers. The act of the law, like the act of •Godj can work a wrong to no one, and if a-man sustain damage by it, it is damnum absque injuria. The plaintiff in this case, therefore, must look to the individual from whose acts he sustained an injury, who never was, and never could be authorised to commit a tort. The principle that a body corporate can only act in strict pursuance of the objects of its incorporation, is stated and exemplified in the-conclusion of the Lord Chancellor’s opinion, in the. casé- of Child v. Hudson’s Bay Company. It is also established by the cases of Beatty v. Marine Insurance Company and Head v. Providence Insurance Company Steele v. President &>’c. of Lock Navigationj M'-Clenachan v. Curwen .
Between nonfeasance and malfeasance, a marked distinction exists. It is not denied, that for nonfeasance, actions *10of trespass on the case have been sustained, as in the case of the Mayor of Lynn, (in error) v. Turner, where the action was against the corporation of Lynn Regis, for neglect of duty, in not keeping a creek in repair ; in the case of Toxvnsend v. Susquehannah Company for neglecting, to repair a , . , _ _ . , bridge, and in several similar cases. Gray v. Portland. Bank, Stephens v. Middleton Canal. In Riddle v. Proprietors of locks and canals on the Merrimac, Parsons C. J. lavs down the law more broadly than by his authorities he is warranted in doing, yet he does not go so far as to assert the general proposition, that trespass will lie against a corporation. He merely says, that in certain cases, trespass may be maintained ; and it is to be observed, that the action in which the opinion was delivered, was for a nonfeasance; a neglect of a corporate duty in not keeping the canal in order.
On recurring to ancient authorities, it will appear, that trespass against a corporation for a tort, has never been sustained. Thorpe J. in the Book of Assizes, 22 Edw. 3. p. 100. expressly says,, that trespass never lies against a corporation. A corporation and an individual cannot be joined in trespass as defendants. 8 M. 6. 1. pi. 2. A corporation cannot commit a disseisin except for its own use. Mich. 8 H. 6. pi. 34. p. 14. Mich. 9. H. 6. pi. 9. p. 3,6. Hil. 22. H. 6. pi. 36. p. 46. Trespass does not lie against a corporation in its corporate name. Fin. Corp. pi. 15. p. 300. Nor will an attachment lie. Id. B. A. pi. 3. p. 311. Nor replevin. Id. X. pi. 17. p. 308. In trespass against an abbot he shall be named by •his name of baptism. Id. Q. pi. 9. p. 300. An action for a false return to a mandamus, must be against the individual members of the corporation. Id. Q. pi. SO. p. 303. A corporation cannot beat or be beaten. Id. Z. pi. 2. p. 309. If a corporation disseise, it is in their natural and not in their corporate capacity. Bac. Ah. Corp. E. pi. 5. Trespass does not lie against a corporation. Com. Pig. Plead. 2. B.p. 196.
2. If the plaintiffs in error, be capable of inflicting the injury imputed to them, the declaration sets forth no cause of action. The object in incorporating the company was to make a good artificial road in the place of the old one. The *11company, therefore, succeeded to all the rights previously possessed by the public. It is the duty of the company to keep the road in good order, and to erect bridges over all streams crossing it; and in the prosecution of this duty, they are not responsible for consequential damages to individuals. Besides, the persons over whose property the road is carried, are amply remunerated for their land, not only by having a turnpike road passing through it, but by the allowance of six per cent, for roads by the proprietary or the Commonwealth. The declaration alleges the injury to have arisen from jetties and piers. What_/eíízes are, it is difficult to say, and piers were probably necessary for the proper construction of the bridge. As to what defects are cured by verdict, the cases are contradictory. The rule may, however, be laid down to be,' that where the gist of the action is informally stated, it is cured, but where the ground of the action itself is not well set forth, it is not. In this instance, the declaration sets forth no ground of complaint. It does not state, that the jetties and piers were unnecessarily and improperly placed. It is not enough to aver that the water was thrown back upon the plaintiff, it should also have been shewn, that this was not done in the prosecution of the legitimate powers of the company; a mere allegation of malice, and that the act was wrongfully done, amounts to nothing. The predicament in which the Company is placed, is unfortunate indeed. If they do not build bridges their tolls cease ; if they do, they are liable for consequential damages.
Binney, for the defendant in error.
This case presents three questions. 1. Whether a corporation can commit a tort ? 2. Whether, if it can, this is the proper form of action ? 3. Whether the cause of action is well set forth ?
It must now be taken as proved, that the company gave authority to their servants to do the act complained of. The rule between corporations and their servants, is substan-* tially the same, as between individuals and their servants, ji If, therefore, they give their servants power to do an act inj pursuance of their corporate character, and they do it im- i properly, the corporation are responsible in the same manner | as any other master. Why should a difference exist, and* why should a corporate body be protected in the commission ©f wrong ? If a corporation be the intangible being it is *12asserted to be,'a'greater and more mischievous monster cannot be imagined. According to the doctrine contended for, if they do an act within the scope of their corporate powers, it is legal, and they are not answerable for the consequences. ^ the act be not within the rang'e of their legitimate powers, they had no right by law to do it; it was not one of the objectg for which they were incorporated, and; therefore, it is no act of the corporation at all. This doctrine leads to absolute impunity for every species of wrong, and can never be sanctioned .by any Court of justice. The master is responsible for the acts of the servant, not because he has given him an authority to do an illegal act, but from the relation subsisting between them. If the servant exceed the power he has received, the master must answer it. So if the company give their servant authority to make a road, in pursuance of their power, to do so, and he exceed that authority, they are answerable, because he is their servant. The.rule which makes the master responsible for the acts of the servant, is declared by Sedgwick J. in delivering the opinion of the Court, in the case of Gray v. Portland Bank, to apply with peculiar force to corporations and their agents. The position that a corporation can do no wrong, is pernicious in its consequences, and unfounded in law. If I put a note in bank, and wish to get it out, to put it in suit, and the bank refuse to deliver it, surely the remedy is an action of trover. If. I refuse an exorbitant toll, in consequence of which, my horse is taken from me, and I cannot .get him from the toll gatherer, can it be doubted, that I may have an action, of trover against the company ? If I cannot-look to the company, there is no remedy, because the toll gatherer may be.worth, nothing, or may have gone off; nor can the individual members be resorted to, unless they were guilty of malice. If a quagmire or any other nuisance exist, the supervisors where there is no turnpike company may be inydieted ; and where a company are invested with the duties of supervisors, they may be indicted. The corporators as individuals cannot be indicted, because it is not within the line of their duty as such.
ÍAs to the form of action, it is difficult to point out any pther remedy for injuries of this description than trespass on *13the case, and if there b.e no other remedy, this is the right one! Assumpsit certainly,would not lie, because there was no contract; nor would trespass vi et armis, because the damage. was consequential. The old authorities which, have been referred tof^belong to a period, when the English lawyers were more distinguished for subtlety than for sound sense ; and when the nature of corporations was greatly refined upon. It. appears, however, .from 2 Inst. 697. 703, that a corporation Vas then, considered as substantially an inhabitant or occupier ; and subsequently in Rex v. Gardener, it was held, that ,a corporation seised of land for their own profit in fee, are, within the statute of 43 El. c. 2, inhabitants or occupiers of such, lands, ¡and -liable in respect thereof, to be rated, in. their, corporate capacity to the poor. In the Supreme Court of the United States, it has been decided, that a corporation may sue in the Circuit Court of the United States. as .a citizen, Deveau v. Bank of United States, The.law on the subject of corporations has of late been greatly and beneficially altered. It was formerly held, that they could do nothing except' under- their seal, and for that reason assumpsit would not lie against them. All these niceties, however, are now repudiated, and they may enter into contracts either express or implied, without seal. When a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorised agents, are express promises by the corporation, and.all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, on which an action lies. Bank of Columbia v. Patterson's administrators.
Tbe opinion of Thorpe J.
which is much relied on, was nothing more than a dictum, and was grounded upon the necessity which then existed of a eapiatur pro fine and exigent, which could not be entered against a corporation. These, however, are now exploded, and giving to the assertion of Thorpe, all the weight to which it 'can possibly be entitled, the authority must fail, because the reason of it no longer exists. The distinction taken between a misfeasance and a nonfeasance is altogether ideal; it has no solid foundation.
*14The authorities all shew, that the action will lie in either case. If a company be guilty of a tort by neglecting a road or bridge, how can they be reached but in this form of action ? That this is the proper form, is proved by the cases adduced on the opposite side. The Mayor of Lynn v. Tur~ ner, was clearly an action of trespass on the case, for a tort; gQ wag Townsend v. Susquehahnah Turnpike Company, and Riddle v. Proprietors of Locks, Es?c. on Merrimack. In two of these cases the point was not made, and in the third, it was overruled. As respects the form of action, there is no difference between nonfeasance and misfeasance ; trespass on the case, is the general form. We are, therefore, brought back to the point from which wé set out, whether a corporation can commit a misfeasance, which is clearly proved, not Only by the late, but by the ancient authorities, and even by some of those which have been cited for the plaintiffs in error. Trespass against the Mayor and Commonalty of York; plea that all the inhabitants had right of common, in the place where the trespass, &c.; not good,, because the action is against the corporation, and the plea is a justification as to individuals. Plea altered, and the corporation said to be aiding in the trespass ; adjudged that they cannot be aiding, nor can they give a warrant to commit a trespass without writing. 4 H. 7. pi. 11. p. 13. A corporation cannot authorise a wrong to be committed, except by writing under their common seal. Brook. Corp. pi. 34. p. 189. These authorities prove the capacity of a corporate body to commit a wrong, and shew the position said to have been laid down by Thorpe, to be erroneous. Trespass against the Mayor, Bailiffs, and Commonalty of Ipswich, and one Jabez. Objection was taken, that a corporation and an individual cannot be joined in one writ, but no objection taken, to trespass having been brought against a corporation. 8 H. 6 pi. 2 p. 1. Id. pi. 34. p. 14. An assiize of novel disseisin was maintained against the mayor and commonalty of Winton. Lib. Ass. 31. Ass. pi. 19. In trespass against a corporation, if defendant plead a misnomer, plaintiff may reply, known by one . name or the other. 6 Vin. pi. 42. p. 303. The result of these authorities is, that even in ancient times, trespass could be sustained against a body corporate.
The objection to the declaration, is susceptible of an easy answer.' It states, that a stream of water had, immemorially *15flowed through the plaintiff’s land, without injury to his tan-yard, and that the defendants unlawfully and wrongfully erected piers, &c. which threw the water back and injured his tanyard. This would sufficiently set. forth a cause of action against an individual, and does so equally against the company, unless' they can shew an authority fpr such an act. If they can, justify, they should shew their authority, either by pleading, or in evidence ; for it would reverse the order of pleading, if the plaintiff were to set out negatively, the defendants’ want of authority.
Gibson J.
Should you not in your narr. shew the general authority to make the road, and negative the authority to do this act?
That is done-. The narr. states, that the act was wrongfully and unjustly done. These are not .mere words of form, but constitute the very gist of the action. It is, therefore, sufficiently set forth, that the act in question, was not in pursuance of .the necessary powers of the corporation. The power to build bridges over streams, negatives the power to dam them up. If, however, any defect existed in the declaration, it was cured by the verdict, which being for the plaintiff, proves that the act in question was unauthorised. 1 Sound. 228. Note, where ‘all the law on this subject is collected.
The opinion of the Court was delivered by
Tilghman C. J.
This is an action on the case, brought by James Rutter against The Chesnut Hill & Spring House Turnpike Company, for an injury done to the plaintiff’s land and tanyard, in consequence of certain piers erected by the defendants, on each side of a stream of water, by which the stream was .obstructed and thrown back, and overflowed .the plaintiff’s land.
The defendants below, who are plaintiffs in . error, rely off two objections. 1. That a corporation is not suable in this kind of action. 2. That the declaration does not state a good cause of action, even if the defendants were liable to an action in this form.
1. Corporations have lately been so multiplied in the United States, that they stand a very prominent part, in. the *16business, of the country. It has, therefore, been necessary to consider, with great attention^ their nature, and their rights, both as to suing and being sued. And as it would be extremely . , . . inconvenient, that they should do wrong without being amenable to justice, the inclination of the Court has been, to hold t*16111 responsible. ’ There was a time, when'it seems to have been supposed, that, they could make no contract, but by writing under their common seal. The reason assigned was, that, being incorporeal, and consequently incapable of speaking, it was impossible that they should enter into a parol contract. But upon reflection, this reason has been thought insufficient ; for if pursued to its Sail extent, it would prove, that a corporation could not act*all. It has no hand to affix a seal, and must therefore emplSy an agent for the purpose. But this agent must receive his authority previous to his affixing the seal, It is necessary, therefore, that the. corporation should have the power to act without seal, so far as respects the appointment of a person to affix the seal. Now if it can appoint an agent without seal, for one purpose, there is no reason why it may not for- another. Accordingly, in the case of The King v. Biggs, 3 P. Whis. 419, on a special verdict in a case of capital felony, it was held, that the Bank of England might, without seal, authorise a person to sign notes in its behalf. And it was decided by the Supreme Court of the United States, in the case of The Bank of Columbia v. Patterson’s administrators, 7 Cranch, 299, that a corporation may, without seal, enter into a contract, express, or even implied. In the words of Judge Story, by whom the opinion of the Court was delivered, “ when- á corporation is acting “ within the scope of the legitimate purpose of its institution^ “ all parol contracts made by its authorised agents, are express promises of the corporation, and all duties imposed' si on them by law, and all benefits conferred, at their request, “raise implied promises, for which an action lies.” By this decision, I consider the law as settled. It does, indeed, seem to have been the opinion of this Court, in the ease of Breckbill v. The Lancaster Turnpike Company,.3 Dali. 496, that an action of assumpsit would not lie against a corporation. But the law had not been at that time fully considered, and I may say, that our late brother Ye atés, .who was on the bench when Breckbill v. The Lancaster Turnpike Copipany was decided, was satisfied as to the propriety of acquiescing in the *17authority of The Bank of Columbia v. Patterson's administrators.
But it is objected that the present action is not on contract but on tort, and a very refined argument is brought forward, to prove that a corporation cannot be guilty of a tort. A corporation, say the defendant’s counsel, is a mere creature of law, and can act only as authorised by its charter. But the charter does not authorise it to do' wrong, and therefore it can do no wrong. The argument is fallacious in its principles, and mischievous in its consequences, as it tends to introduce actual wrongs and ideal remedies; for a turnpike company may do great injury, by means of labourers who have no property to answer the damages recovered against them. It is much more reasonable to say, that when a corporation is authorised by law to make a road, if any injury is done in the course of making that road by the persons employed under its authority, it shall be responsible, in the same manner that an individual is responsible for the actions of his servants, touching his business. The act of the agent is the act of the principal. 'There is no solid ground for a distinction between contracts and torts.1 Indeed, with respect to torts, the opinion of the Courts seems to have been more uniform than with respect to contracts. For it may be shewn, that from the earliest times to the present, corporations have been held liable for torts. Many cases have been cited from the year books. Upon examination, they do not all answer the citations, but enough appears to shew that the law was so understood. In 4 Hen. 7. p. 13, pi. 11, we find an action of trespass against the Mayor and Commonalty of Tork, Plea, that all the inhabitants had a right of common in the land where the trespass is supposed to have been committed: held, not good, because the action is against the corporation, and the plea is a justification as to individuáis. In a subsequent part of this case, it is said that a corporation cannot give a warrant to commit a trespass without writing. • This, if it be. law. proves that a warrant may be given by writing, which is sufficient for the plaintiff’s purpose, the point being, whether a corporation can commit a trespass. In 8 Sen. 6. p. 1. pi. 11. and p. 14i.pl. 34, trespass was brought against the Mayor and Bailiffs, and Commonalty of Ipswich, and one f. yabez. It was objected, that a corporation and an indi*18vidual cannot be joined in one action; but it was not object-that trespass does not lie against a corporation ; and the objection is said to have been overruled in 14 Hen. 8. 2. In the book of assises (31. Ass. pi. 19.) it appears that an assise °f novel disseisin was maintained against the Mayor and Commonalty of Winton. Brook lavs it down, that if the j a > Mayor and Commonalty disseise one who releases to several individuals of the corporation, this will not serve the Mayor and Commonalty, because the disseisin is in their corporate capacity. In the old books of entries are numerous precedents of writs of qucere impedit against corporations, and in Vidian3s Ent. 1. is a declaration in an action on the case, (16 Car. 2.) against the Mayor and Commonalty of the city of Canterbury, for a false return to a mandamus. To come to more modern times, it was held in the Mayor of Lynn, fife, (in error,) v. Turner, (Cowp. 86,) that an action on the case lies against a corporation for not cleansing, and keeping in repair, a stream of navigable water, which it was bound to do by prescription, in consequence of which the plaintiff was injured. This was in the year 1774, a little before our revolution. ' The laws of the Commonwealth forbid my tracing this point through the English Courts, since the revolution, but we shall find abundant authority in the Courts'of our own country. In Gray v. The Portland Bank, 6 Mass. Rep. 364, it is laid down, that the bank was responsible for wrongs done by itself or its agents. In Riddle v. The Proprietors of the Locks, &c. on Merrimack river. 7 Mass. Rep. 169, an action was maintained against the company for damage suffered by the plaintiff in consequence of the locks not being kept in repair. And in Townsend v. The Susquehana Turnpike Company, (6 Johns. 91,) an action was supported for the loss of a horse, killed by the falling of a bridge, which the company had built of bad materials. These authorities put it beyond doubt, that the form of action, in the present case, is good.
objection to the declaration remains to be considered. It is said, that the act of assembly, by which this company is chartered,gives them power to ereetbridges over all the streams which cross the road, and, therefore, they are not responsible for any damages which maybe suffered in consequence of these bridges. But this is too broad a proposition: for, granting that they would not be responsible for damages unavoidably *19resulting from a bridge built in the best manner, and obstructing the passage of the water, no more than was necessa- | ry for its proper construction, it would not follow that they should not be answerable for damages arising from a bridge I so carelessly or inartificially built, as to occasion an unneces'sary and wanton obstruction. Now, the declaration alleges, that the defendants contriving, and wrongfully and injuriously intending to injure the plaintiff, &c. did wrongfully and unjustly set up certain piers, £s?c. So that we are bound, after verdict, to suppose that it was proved the defendants were in fault, in the manner of erecting the piers. To say, now, that they were guilty of no wrong, would be to declare that it is impossible for them to be made answerable for any injury which may arise from any kind of bridge, oj'.piers. This is going farther than I can permit myself to do,.being satisfied that the law never intended to authorise d a ni-ág e.; ' jv i t h o u t necessity. Whether the company would be answerable for damages occasioned by a bridge or piers, of proper construction, is- a point of great importance, on which I give no opinion, as it does not arise in this case. I am of opinion, on the whole, that the judgment should be affirmed.
Judgment affirmed.