City of Cincinnati v. Evans , 5 Ohio St. 594 ( 1855 )

Ranney, C. J.

But two questions have been pressed upon our attention in the argument of the plaintiff’s counsel — the one going to the defendant’s right of action, and the other to the measure of his damages. The action in the court below, was brought against the city to recover for injuries sustained in the removal of the front of a store building by the order of the council, and the consequent interruption to the business of the defendant, which he was prosecuting in it, until the injury could be repaired. On the part of city, it was claimed that the part of the building which they caused to be removed, was within one of the public streets of the city, and they attempted to justify its removal for that reason. This was met with proof on the part of the plaintiff below, tending to show that he had in good faith placed his building upon the apparent and reputed line of the street, as it was shown him by the city surveyor when he commenced its erection ; and that he had from that time, and during a period of more than twenty-one years, continued in the uninterrupted, exclusive, and adverse possession of the ground upon which it was located. The court instructed the jury that if they “ should find these facts true, then the plaintiff had a right as claimed by him, to remain undisturbed in his property, and the city authorities had no right to remove or destroy it in a summary manner.” It is very far from being clear, that the naked proposition argued by counsel, that municipal corporations are within the provisions of the limitation act, and that an adverse holding of streets or squares for the statutory period, will bar all remedy for their recovery, can be fairly said to arise from the charge given to the jury. This proposition is so connected with other material considerations, as, perhaps, to require us to give effect to them all, in passing upon the correctness of the instruction as a whole. Rut as we find no difficulty in fully approving the charge, in the absolute form in which it has been presented, we are content so to consider it. In treating this question, we need do no more than refer to the case of the Lessee of the City of Cincinnati v. The First Presbyterian Church, 8 Ohio Rep. 298, and make our own, the conclusions to which the court then arrived: that municipal corporations are subject to the operation of the statute of limitations, in the same manner, and to the same extent as natural persons; and, as a consequence, that notorious and uninterrupted possession by a private individual, under a claim of right of land dedicated to a city for streets or public squares, for more than twenty-one years, will bar the claim of the city to its use. This case was decided in 1838 ; was fully argued by eminent counsel, and carefully considered by the court. In following it now, we not only yield the respect due to a decision of the court of last resort, which has so long been supposed to have settled the law, but with a full approval of the principles upon which it is founded.

2. The remaining question is one of more difficulty; and after a careful examination, we find ourselves unable to concur in the views expressed by the learned judge who presided at the trial.

Against the objection of the counsel for the city, the plaintiff below was allowed to give evidence of a loss of profits and permanent custom by means of the acts of the defendantand the court, with a view to this evidence, instructed the jury, that “ they might allow the plaintiff damages for the loss of profits in Ms business, occasioned by its interruption by the acts of the defendant.” The jury having found such damages, which, under the instruction of the court, they have separately assessed, the question arises, whether this part of the judgment can be sustained.

There is, perhaps, no subject so important in the practical administration of-justice', about which so much doubt and uncertainty exists, or such confusion is to be found in the adjudged cases, as that which concerns the rules for assessing damages in actions for torts. Some principles, however, are well settled; and by carefully attending to the analogies they afford, we shall be much more likely to arrive at a correct conclusion, than by placing entire reliance upon particular adjudications. One of these principles, applicable to cases like the present, where neither fraud, malice, or other circumstance, justifying the recovery of exemplary damages, exists, is that which limits the recovery' to the natural and proximate' consequences of the illegal act. These, it is fairly presumed, the party committing the injury in good faith, or under a claim of right, may foresee and expect to compensate, should he be found in the wrong. But the principle necessarily excludes all those consequences of the act which are remote and indirect, and all investigation of losses which are purely speculative. It is very true, that the simple statement of this principle, falls very far short of determining what are the direct, natural, and proximate consequences of a particular act, or what are too remote, speculative, or contingent, to be taken into the account. In the language of Mr. Sedgwick, “ Even this is vague enough, for language confesses itself incompetent to depict the nicer shades of right and obligation, and all rules will be found valueless unless applied and expounded by tribunals as sagacious as they are learned.” Sedg. on Dam. 115. But this rule has been repeatedly and constantly applied in a class of cases, which it seems impossible to distinguish from this, and in each of which the claim for profits has been refused. The cases to which we allude, are those in which it has been uniformly held, that the damages to be recovered in marine trespasses, resulting in the illegal breaking up, or interference with the voyage, could not cove;;, the profits of the voyage. Debol v. Arnold, 3 Dall. 333 ; Anna Maria, 2 Wheat. 327 ; Amiable Nancy, 3 Wheat. 546 ; L'Amistad, 5 Wheat. 385 ; Smith v. Coudry, 1 How. 28 ; Boyd v. Brown, 17 Pick. 543. A necessary extension, perhaps, of the same principle, was allowed in the case of Williamson v. Barrett, 13 How. 101, where the owners of a steamboat, in a suit brought to recover for injuries sustained by a collision, in addition to the amount necessary to raise and repair the boat, were allowed to recover a further sum to compensate them for her use, during the time she was being refitted. In the case before us, there is no reason to suppose that the city officers knew they were acting illegally, or intended anything else than to discharge what they supposed a public duty. In this, however, they have been found mistaken. The plaintiff below has been injured, and ought to be compensated so far as he can be, and preserve the integrity of salutary rules. It must have been evident to those who deprived him of the use of a building in which he -was prosecuting his business, that the simple rentable value of the property during the period of interruption, would not compensate him for the interference. They could not fail to have contemplated a further injury, as the necessary consequence of their act, and for that further injury he is entitled to recover. But the supposed or contemplated profits of his business during the period, does not measure this injury. Such an issue cannot be proved without indulging in suppositions and conjectures which the law does not permit; and in so far as it involves his capital and personal services in the result, includes matters not within the scope of the action. Upon the whole, we are of opinion, that, in addition to the damages done to the building, he was entitled to recover such further sum as would compensate him for the loss of its enjoyment while the interruption continued; and that for the purpose of showing how much this Avas, it was competent to prove the nature and extent of his business, the necessity of using the building for its prosecution, and the value of sueh use to him. during the period of interruption.- But that in the absence of fraud, or malice, or other circumstances justifying the recovery of exemplary damages, the amount of profits which might have been realized by employing bis personal services and capital in the prosecution of his business in the injured building, during the period for which he was deprived of its use, cannot be recovered. That, in such case, the loss of profits does not furnish a proper criterion for estimating the damages; but the loss of the use of the property, and the value of such use to,the injured party, is all that can be recovered.

Judgment reversed as to damages for loss of profits, and affirmed as to the balance.

Bartley, J., dissented, being in favor of reversing the entire judgment.