Tatman v. City of Benton Harbor , 1898 Mich. LEXIS 621 ( 1898 )

Grant, C. J.

(after stating the facts). After this court had decided that at the common law municipalities were not liable for neglect to keep their highways in a safe condition, a statute was passed imposing a liability. The act at present in force is Act No. ¿64, Pub. Acts 1887 (3 How. Stat. § 1446c et seq.). Many decisions are cited in the briefs of counsel under this and previous acts. They, however, have no bearing upon this case, for the reason that the statute fixes the liability only for injury to persons and property upon the public highway. It imposes no liability for injury to abutting lands. If, therefore, the defendant is liable, it is because such liability exists at the common law. Cases holding that municipalities cannot avoid liability by letting contracts, and that they are liable for the negligence of the contractors, do not apply, because the railway company and the city do not occupy that relation. The railway company is not doing any work for the city, but solely for itself. Authorities holding that municipalities are liable for erecting and maintaining obstructions which cause the water to overflow the lands of abutting owners, as in Rice v. City of Flint, 67 Mich. 401, are not applicable, for the city itself has committed no act causing such a result. The city, under authority received from the State, granted the railway company a franchise, and the use of its streets to erect the necessary plant. The rail why company, under authority received from the State, accepted the franchise, and was erecting its plant. The railway company was not the agent of the city. The city was engaged in no act of a private character or for private gain. In granting this franchise it was exercising a public function, from which it was not to derive any benefit. Was it under obligation to watch the railway company in its work, to see that it did no damage to the property abutting the street ? Township boards are now authorized by the legislature to grant rights of way over the public highways to street-railway companies. Is tbe township liable if the railway company, in laying its track and erecting its plant, by its negligent acts injures the property of the abutting owner? If so, it follows that the township must, through its officer or agent, superintend the work, and see that it is properly done. No such duty is imposed by statute, and no authority is cited sustaining it. The railway company was lawfully in possession of the street, engaged in lawful work, and no duty was imposed upon the defendant city to be on the watch to prevent trespasses by the railway company to abutting lands. In Frith v. City of Dubuque, 45 Iowa, 406, it is said:

“It [the city] may, by ordinance, permit the use of a street for a railway. The railway company accepts the grant subject to liability for any damages which .may be sustained by individuals by an improper construction of the road or unauthorized use of the street. The use of the street under such permission or grant cannot make the city liable in damages.”

The court was correct in directing a verdict.

Judgment affirmed.

The other Justices concurred.