McCombs v. The Town Council of Akron. Dec. Term, 1846. BIRCHARD, J. dissenting. I dissent from the above opinion. IN BANK. The extent to which this Court has ever gone in sustaining an action against a corporation, falls far short of what was necessary to sustain this case. In my opinion, the Court of Common Pleas gave the law to the jury correctly. So thought this Court upon the circuit, and the judgment was affirmed. I should cheerfully retrace that decision, and indeed would desire to do so, if not entirely satisfied of its correctness. The case of Rhodes v. Cleveland, 10 Ohio Rep. 159, established a new principle, before unknown to the profession in this and our sister States. It was one that justice seemed to demand; and for myself I can here say, that as I understand it, and as it was understood by the learned Judge who delivered the opinion in that case, I have no desire to shake its authority. It goes not further than to subject a corporation to an action, upon a state of facts which would have subjected a natural person. Apply that principle to this case, and there was no error. The rights of the public to the highway, for the legitimate purposes of travel, and improving the road, are as perfect and absolute as the rights of a natural person are to his private property in lands. This right extends to all above and all below the surface, and he may use his own as best pleases himself, doing no unnecessary injury to his neighbor. If he choose to erect buildings or fences, so as to throw a part of his neighbor's garden adjoining him into the shade, no action can be sustained for the injury. If he sees proper to dig up his own soil, or to grade down his own lot, he may do it, taking care not to undermine his neighbor's structures, or to break the soil of his neighbor's lot, and no action will lie, although it may make it necessary for that neighbor to accommodate himself to the same grade. The town council of Akron kept themselves strictly within the powers conferred upon them. They touched not the plaintiff's soil; did not undermine his houses, fences, or other structures; did nothing wantonly, maliciously, or negligently. Dec. Term, 1846. McCombs v. The Town Council of Akron. IN BANK. Every act was strictly legal. So that no consequences flow from it that would have made a natural person liable, had he been the owner and performed the same acts. The injury, and the only injury to the plaintiff in such a case, must have been of the same nature as that which is sustained by the owner of a village lot, whose neighbor has graded down his own adjoining lot without disturbing him in any manner. The Court of Common Pleas charged the jury, in substance, that for such a cause no action could be maintained. The books abundantly sustain them. In a legal sense, there was no injury; nothing which the law recognizes as such. The amount in controversy in this case is of no moment; but the principle which this decision establishes is of great importance. It is pregnant with mischievous consequences, which, when fully developed, will be too grievous to be borne. They will reach, if carried into practice, every portion of the State, and obstruct the improvement of all public roads, ways, and alleys, in each town, village and city. My hopes are still, that the rule applied in this case may be limited to the office of reversing the judgment before us, that it may live and die with the cause which brought it into being; and if not, that it may be hereafter understood and limited by my brethren as I would now limit it—giving a right of action against a corporation only upon a state of facts that would subject a natural person if committed by him instead of the corporation. Harrington v. Heath. JONATHAN HARRINGTON vs. ELIPHALET W. HEATH. A Justice of the Peace has not jurisdiction in actions on the case for nuisance upon lands. If suit for such cause of action be commenced before a Justice, appealed to the Common Pleas, and issue joined in that Court by declaration and plea, it is too late to object the want of jurisdiction on the part of the Justice, and the Court of Common Pleas may proceed to trial and judgment. The proceedings of the Justice are wholly void, the case stands in the Common Pleas as though issue had been joined without process, and the costs before the Justice should not be taxed. THIS is a WRIT OF ERROR to the Court of Common Pleas of LAKE County. The original action was in case, brought by the defendant in error against the plaintiff in error, for erecting a dam across a certain water course, and causing it to flow back upon the land of the defendant in error. The action was commenced before a Justice of the Peace, and the plaintiff below had judgment for three dollars damages, and $10.59 costs. The case was appealed to the Common Pleas, and issue joined upon declaration and plea of the general issue. After issue joined, the defendant below submitted a motion to dismiss the cause for want of jurisdiction, which was overruled, and the cause submitted to a jury, who found a verdict for the plaintiff of one dollar, for which the Court gave judgment, as well as for $69.48 costs-the defendant's own cost being taxed at $8.65, for which no judgment was rendered. The plaintiff assigns for error First: That the Justice had no jurisdiction. Second: That the Court of Common Pleas had no jurisdiction. Third: That the Court of Common Pleas erred in refusing to dismiss the cause, for want of jurisdiction. Fourth: That the judgment was given for defendant in error when it should have been given for plaintiff in error. IN BANK. Dec. Term, 1846. IN BANK. Dec. Term, 1846. Harrington v. Heath. Fifth: The Court erred in rendering judgment against plaintiff in error for costs. Perkins & Osborn and Phelps & Riddle, for Plaintiff in Error. Hitchcock & Wilder, for Defendant in Error. READ, J. This case presents two questions — First: Whether a Justice of the Peace has jurisdiction of an action upon the case for nuisance, in flowing back water upon the lands of another. Second: And if not, and such an action has been commenced before a Justice of the Peace, and appealed to the Common Pleas, a declaration and plea filed, whether the Court of Common Pleas has jurisdiction, The 105th section of the Justices' act (Swan's Stat. 525) reads: "The jurisdiction of Justices of the Peace shall extend to 'actions of trespass on real estate, in cases where the damages ' demanded for such trespass shall not exceed the sum of one 'hundred dollars; and no claim of title to such real estate, set up by the defendant, shall take away or affect the jurisdiction 'hereby given." Does this section confer jurisdiction upon Justices of the Peace over injuries to real estate, resulting from nuisance? In construing statutes, words are to be taken in their usual and ordinary signification, unless they be technical, and have a fixed legal meaning. In the latter case, it will be presumed they were employed in their technical signification, and will be so taken unless there be something growing out of the subject matter, or the plain intent of the Legislature, showing that they were employed in their ordinary, and not in their legal sense. The words trespass and case both, in their ordinary and legal sense, have a different meaning; the word trespass applying to injuries resulting from direct force, and case to such as Harrington v. Heath. Dec. Term, 1846. are consequential. True, the word trespass, in its broadest IN BANK, signification, as embracing every species of injury, would include case; and, giving it that meaning, would, by the express words of the section above referred to, confer jurisdiction upon Justices of the Peace, over cases of injury to land, resulting from nuisance, where the damages demanded for such injury did not exceed one hundred dollars. It is contended that this word ought to be construed in its largest signification, in order to confer jurisdiction. It will not bear such construction, unless it be taken for granted that the Legislature intended to confer the broadest jurisdiction, or unless it is plain that such was the object, as manifested by the act. In examining the act, and observing the cases in which jurisdiction is conferred and forbidden to Justices of the Peace, it is plain that the Legislature intended to confer upon Justices of the Peace precisely such jurisdiction as the statute prescribes, and nothing more. There was no intent to confer a general jurisdiction. Original jurisdiction already existed in the Court of Common Pleas, where trial by jury was secured; and this right of trial by jury not existing at the time of the act, in trials before Justices of the Peace, and it being a common right favored by the law, and guarantied by the constitution to a certain extent, the presumption arises that all cases, not especially conferred upon Justices, were to be tried in the Common Pleas. This view would lead to a strict construction of the Justice's act, and would affix the most limited meaning to the word trespass that it would bear. But statutes are to be construed together, so that all shall take effect if possible. The seventh section of the judiciary act, regulating the practice of the Courts, declares, that in all actions for libel, slander, malicious prosecution, assault and battery, action on the case for nuisance, or against justices of the peace for misconduct in office, if the jury on the trial of the issue, or on inquiry of damages, shall find and assess the damages under five dollars, the plaintiff shall not recover any costs. |