insufficient culverts or passage ways obstructing the free flow of the water, without incurring a liability therefor. Gardner v. Newburgh, 2 Johns. Ch. 162; Stetson v. Faxon, 19 Pick. 147, 158; Town of Union v. Durkes, 38 N. J. Law, 21; Dill. on Mun. Corp., § 797. And see Dayton v. Pease, 4 Ohio St. 80; Rochester Lead Company v. Rochester, 3 N. Y. (3 Comst.) 463; Sleight v. City of Kingston, 11 Hun (N. Y.), 594; Parker v. Lowell, 11 Gray, 353. Thus, in building a highway across a natural stream the corporation should provide for, and maintain, a free passage of the water, in order that it may not be obstructed and pent up so as to flow back on land belonging to the riparian proprietors. Haynes v. Burlington, 38 Vt. 350. See, also, Mayor of Helena v. Thompson, 29 Ark, 569. But the corporate authorities of a city are not liable for an injury to private property, caused by the insufficiency of erections to resist an extraordinary flood, if they had proved sufficient for all purposes for a number of years previous, and ordinarily careful and thoughtful men, and skillful engineers, would not have contemplated that such a flood would ever occur. City of Madison v. Ross, 3 Ind. 236; Sprague v. Worcester, 13 Gray, 193.

As it regards surface water, different principles are applicable, and it is held that no one has such an interest in mere surface-water arising from rains and melting snow, as to maintain an action for the diversion thereof from its ordinary course. Wilson v. Mayor of New York, 1 Denio, 597; Bastable v. City of Syracuse, 8 Hun (N. Y.), 587; Town of Union v. Durkes, 38 N. J. Law, 21. And where a city repairs its streets and constructs drains and sewers with proper skill and care, and without malice, it is not liable for any consequential injury, such as the flowing of waste water upon a citizen's land. Vincennes v. Richards, 23 Ind. 381 And see Bangor v. Lansil, 51 Me. 521; Pontiac v. Carter, 32 Mich. 164; Pettigrew v. Evansville, 25 Wis. 223; 3 Am. Rep. 50; Ellis v. Iowa City, 29 Iowa, 229; Smith v. Mayor, 66 N. Y. (21 Sick.) 295; St. Louis v. Gurno, 12 Mo. 414; Adams v. Walker, 34 Conn. 466. Nor will an action lie against a city for injury occasioned to land bounding on a public street, from the accumulation of water on the surface of the street which the city has neglected to drain. Flagg v. Worcester, 13 Gray, 601. See, also, Aurora v. Pulfer, 56 Ill. 270; Roll v. Augusta, 34 Ga. 326; Atchison v. Challiss, 9 Kans. 603.

It has, however, been held, that, if in grading a street the municipal corporation turns a stream of mud and water upon the premises of an adjoining property holder, or creates in the immediate neighborhood of his premises a pond, offensive and unwholesome to him or his

So, if

family, the corporation thereby becomes liable to him in damages to the extent of his injury. Nevins v. Peoria, 41 Ill. 502. surface-water be collected into a single channel and cast in a large volume upon the land of an adjacent owner, it is held that he may maintain an action to recover the damages sustained thereby. Bastable v. City of Syracuse, 8 Hun (N. Y.), 587; Kobs v. Minneapolis, 22 Minn. 159; Ashley v. Port Huron, 35 Mich. 296. And see on this point Foot v. Bronson, 4 Lans. (N. Y.) 47; Bentz v. Armstrong, 8 Watts & Serg. 40; Livingston v. McDonald, 21 Iowa, 160; Brine v. Great Western Railway Co., 110 Eng. Com. Law (2 Best & Sm.), 402.

§ 11. Damage by fires. A municipal corporation is not liable in damages to the owner of property consumed by fire, on the ground that it failed to keep cisterns filled with water, fire-hooks, etc., in repair, whereby a fire, which communicated with owner's property and occasioned the loss, might have been extinguished. Patch v. City of Covington, 17 B. Monr. (Ky.) 722. To authorize the recovery of damages for an act of omission or commission, the injury sustained must be the direct, or at least the proximate and natural consequence of the act complained of. Id. So, the power conferred upon a municipal corporation by its charter, to organize and regulate a fire department for the purpose of preventing and guarding against damage by fire, is a legislative or judicial one, and the failure of the corporate authorities to exercise the power to the full extent necessary to protect the citizens from such damages, does not render the corporation liable to an action therefor. Brinkmeyer v. Evansville, 29 Ind. 187; Grant v. City of Erie, 69 Penn. St. 420; S. C., 8 Am. Rep. 272; Wheeler v. City of Cincinnati, 19 Ohio St. 19; S. C., 2 Am. Rep. 363; Heller v. Sedalia, 53 Mo. 159; S. C., 14 Am. Rep. 444.

Nor is a municipal corporation liable, unless by express statute, for the destruction of a building torn down to arrest the progress of a fire, no matter whether done under the direction of the municipal officers who had no authority so to direct, or by the by-standers of their own motion. McDonald v. Red Wing, 13 Minn. 38. And see Respublica v. Sparhawk, 1 Dall. (Penn.) 357; Field v. City of Des Moines, 39 Iowa, 575; S. C., 18 Am. Rep. 46; American Print Works v. Lawrence, 3 Zabr. (N. J.) 590; affirming S. C., id. 9; 1 id. 248, 714; Mayor of New York v. Lord, 17 Wend. 285; S. C. affirmed, 18 id. 126. Nor, in the absence of express statute, is a municipal corporation liable for injuries occasioned by the negligence of a fireman while engaged in the discharge of his duties, although such fireman is employed and paid by the corporation (Jewett v. City of

New Haven, 38 Conn. 368; S. C., 9 Am. Rep. 382. And see Fisher v. Boston, 104 Mass. 87; S. C., 6 Am. Rep. 196; Hayes v. Oshkosh, 33 Wis. 310; 14 Am. Rep. 764); nor is it liable for damages caused by the acts of a voluntary association of firemen while engaged in extinguishing a fire within the corporate limits. Torbush v. City of Norwich, 38 Conn. 225; S. C., 9 Am. Rep. 395.

§ 12. Liability for torts or wrongs. No rule can be so precisely stated as to embrace all the torts for which a private action will lie against a municipal corporation. All that can be done with safety is to determine each case as it arises. Lloyd v. Mayor of New York, 5 N. Y. (1 Seld.) 369. And see Richmond v. Long, 17 Gratt. 375; Little Rock v. Willis, 27 Ark. 572; Mersey Docks and Harbour Board v. Penhallon, 7 H. & N. 329. It is, however, well settled that such corporations fall within the operation of the general rule of law that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another is injured. Johnson v. Municipality No. One, 5 La. Ann. 100. But, to create such a liability, it is essential that the injurious act done must be within the scope of the corporate powers as prescribed by charter or positive enactment; in other words, it must not be ultra vires. Mayor of Albany v. Cunliff, 2 N. Y. (2 Comst.) 165; Morrison v. Lawrence, 98 Mass. 219; Horn v. Baltimore, 30 Md. 218; Mitchell v. Rockland, 52 Me. 118; Cumberland, etc., Canal Co. v. Portland, 62 id. 504; Cole v. Nashville, 4 Sneed (Tenn.), 162. See ante, tit. Master and Servant.

An action of tort lies against a city by the owner of land through which its agents have unlawfully made a sewer (Hildreth v. Lowell, 11 Gray, 345), or for trees destroyed and injuries done by them. Wall ing v. Shreveport, 5 La. Ann. 660. And, in general, a city is liable for special damages, inflicted upon private property by reason of the negligence or want of skill of persons employed by it to perform such duties and labor as are properly within its corporate province (Templin v. Iowa City, 14 Iowa, 59; Memphis v. Lasser, 9 Humph. [Tenn.] 757; Lloyd v. Mayor of New York, 5 N. Y. [1 Seld.] 369); and for damages occasioned by the tortious acts of municipal officers, done within the scope of their employment and ratified by their superiors. Thayer v. Boston, 19 Pick. 511; Wilde v. New Orleans, 12 La. Ann. 15. And see Lee v. Sandy Hill, 40 N. Y. (1 Hand) 442; Soulard v. St. Louis, 36 Mo. 546; Sheldon v. Kalamazoo, 24 Mich. 383; Chicago v. McGraw, 75 Ill. 566.

But a municipal corporation is not liable for the misfeasance of its offi cers, when the misfeasance is in respect to a duty specifically imposed by

statute on the officer; nor when the misfeasance is by officers over whom it has no control, and whose duties are to be performed as the representatives and for the purposes of the State government. Ham v. Mayor of New York, 5 Jones & Sp. (N. Y.) 458; Sutton v. Board of Police, 41 Miss. 236. And see Connors v. Mayor, 11 Hun (N. Y.), 439; Maxmilian v. Mayor, 62 N. Y. (17 Sick.) 160; S. C., 20 Am. Rep. 468; Mead v. New Haven, 40 Conn. 72; 16 Am. Rep. 14. Nor is a city liable for the negligence of its officers or agents in executing sanitary regulations adopted for the purpose of preventing the spread of contagious disease, or in taking the care and custody of persons afflicted with such disease, or the houses in which such persons are kept. In executing these legislative functions the city acts as a quasi sovereignty, and is not responsible to individuals for the negligence or non-feasance of its officers or agents. Ogg v. City of Lansing, 35 Iowa, 495; S. C., 14 Am. Rep. 499. And see Russell v. Mayor of New York, 2 Denio, 461; Small v. Danville, 51 Me. 359; Rielly v. Philadelphia, 60 Penn. St. 467. Nor is a city liable to an action for damages for the illegal arrest of a citizen by one of the police officers of the city (Cook v. Mayor of Macon, 54 Ga. 468; Pesterfield v. Vickers, 3 Coldw. [Tenn.] 205); nor for an assault and battery committed by its police officers (Kimball v. Boston, 1 Allen, 417); nor for their unlawful acts of violence (Stewart v. New Orleans, 9 La. Ann. 461; Dargan v. Mobile, 31 Ala. 469); nor for the act of the recorder in wrongfully refusing bail (Ready v. Mayor, etc., 6 Ala. 327); nor for the neglect of the board of police commissioners, not appointed by, or responsible to the corporation. Altvater v. Baltimore, 31 Md. 462. See, also, President, etc., of Odell v. Schroeder, 58 Ill. 353; Judge v. Meriden, 38 Conn. 90. The remedy in such cases must be sought against the officers personally. Cook v. Mayor of Macon, 54 Ga. 468. Nor is a city corporation liable for injuries occasioned by the negligence of a contractor, in doing work under a contract between him and the city government (Painter v. Pittsburgh, 46 Penn. St. 213; Pack v. New York, 8 N. Y. [4 Seld.] 222), unless the relation of master and servant exists between them. Barry v. St. Louis, 17 Mo. 121. And where a city employed a contractor to grade a street, and in performing his contract he threw dirt, stone, etc., on a lot abutting the street, it was held that the city was not liable to the lot-holder for the injury. Reed v. Alleghany City, 79 Penn. St. 300.

Municipal corporations are not liable at common law to pay for the property of individuals destroyed by mobs or riotous assemblages (Mayor of Baltimore v. Poultney, 25 Md. 107); Western College v. Cleveland, 12 Ohio St. 375); but the legislature may constitutionally give a remedy, applicable in such case, and may regulate the mode of

assessing the damages. Wing Chung v. Los Angeles, 47 Cal. 531; Sarles v. Mayor of New York, 47 Barb. 447; Atchison v. Twine, 9 Kans. 350; In re Pennsylvania Hall, 5 Penn. St. 204; Underhill v. Manchester, 45 N. H. 214. See City of Richmond v. Smith, 15 Wall. 429.

A person who sustains a personal injury while aiding the police officers of a city at their request made in accordance with a city ordinance, in arresting violent disturbers of the peace, cannot sustain an action against the city for such injury. Cobb v. Portland, 55 Me. 381. Nor can a city corporation be held responsible for the negligence of its police officers in not taking proper care of a horse and carriage, where the driver has been arrested for fast driving. Elliott v. Philadelphia, 7 Phil. (Penn.) 128.

The general result of the numerous adjudications upon the liability of municipal corporations for the acts and omissions of their officers and agents is stated to be that where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence and misfeasance of such officer or servant, the corporation is liable in the case of private corporations or parties. But when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for the consequences of such acts or omissions on the part of its officers and servants. Murtaugh v. St. Louis, 44 Mo. 479. See, also, Richmond v. Long, 17 Gratt. 375; ante, 595, art. 1, § 1. As to the remedy against municipal corporations, by writ of mandamus, see ante, tit. Mandamus.

In some cases, equity will interfere to prevent municipal authorities from transcending, or from making an illegal use of their powers, and will grant relief against their unauthorized or illegal acts; and this on the same principles by which it is guided in other cases. Att.-Gen. v. Corp. of Plymouth, 9 Beav. 67. And see tit. Equity, ante, Vol. 3. It has accordingly been held, that a court of equity possesses jurisdiction to give relief, where the owner has conveyed his property to a city corporation, for public purposes, in the confidence of receiving a compensation, which the corporation has failed to make. Walker v. Charleston, 1 Bailey's (S. C.) Eq. 443. So, in respect of property held by municipal corporations in trust, or clothed with public duties, equity has always asserted its jurisdiction to see that the trusts were performed and the public duties discharged. Att.-Gen. v. Liverpool, 1 Myl. & Cr. 171; Dill. on Mun. Corp., § 729. And see Att.-Gen. v. Dublin, 1 Bligh N. R. 312; Att.-Gen. v. Detroit, 26 Mich. 263; Hatheway v. Sackett,