Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-01
COURT DECISIONS.
pIcESTEp BY w. q. MARTIN. :.
Exclusively for virginian-Plotl
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
DUNCAN ". LYNCHBuRG.

Supreme Court of Appeals of Virginia.
February s, 1900
a CITY is NOT LIABLE FOR THE
TORTS OF ITS AGENTS UNLESS
THE ACT IS COMMITTED IN THE
EXERCISE OF SOME POWER
OR OTHER POSITIVE ENACT
MENT
The case appears in the opinion of the
court.
The Court says:
This an action On the case against the
City of Lynchburg for continuing a
nuisance near the premises of the plain
tiff. to the damage of the health and
comfort Of himself and family.
1t is averred in the declaration that
the defendant. whilst operating Il rock
quarry outside the limits of the city,
erected Drivy for the use of its en-
ployees, including Its chain gang, over
stream of water which runs under
the front porch of the dwelling house
occupied by the plaintiff, situated near
by and Just below the quarry, and so
polluted the stream as to render his
premises unfit for habitation and TO
cause serious sickness in his family.
Inc defendant demurred to the de-
claration upon the ground that the in
Jury complained of was not caused by
an act done within the scope of the
power and authority of the city, but
was the result of an ultra wires act,
for which the city was not liable.
The trial court sustained the de-
murrcr and gave judgment for the
defendant. To that judgment this
writ Of error was awarded.
The question presented for our de-
termination is whether the nuisance
complained of was created or continued
In t-
fendant city whilst engaged in a work
which was within Its corporate limits
In order to render a municipal cor
poration liable in damages for the torts
OF Its agents and employees. it is neces-
sary. among other things, that the in
jury complained of be caused by, or
result FROM an act done In the exercise
or some power conferred upon 1t by Its
charter or other positive enactment.
None Of the provisions of the char
ter. nor OF the general statutes eX-
pressly confer upon the City the right
to acquire and operate q rock quarry
III such power can be necessarily or
fairly implied from the powers express
ly granted, it must be under subsec-
tons and 80 Of section Z, chapter vi.
of the charter. The power given by
subsection g. which authorizes the city
to purchase. hold, sell and convey all
real and personal property necessary
for It's uses and purposes, must, I ap-
prehend, be exercised within, and not
without. the limits of the city. For the
general rule is that the mower of a
municipal corporation is confined 10 its
own territorial limits, and without
some special provision authorizing it,
1t cannot possess any control or rights
In or over lands lying without these
limits.
If it be true that n municipal cor
poration without special authority may
purchase and hold lands without its
limits for some purposes, it must be
because the lands are Indispensable
necessary to enable it to protect the
health and well being of it's people.
IL might be convenient for q NUM-
cipal corporation to own and operate n
rock quarry. but 1t is manfestly not
indispensable that 1t should do so in or
der that 1t may accomplish the objects
of It's creation.
The contention of the plaintiff in err
ror that the question OF whether or not
the work in which the city officials
were engaged when the nuisance COM
planned Of was created was within it's
powers could not be raised by demur-
rer. but only by a plea. is wholly I'M
tenable. The courts take judicial no.
tlce OF the charters OF municipal cor
Dorations and If the cause of action
stated in the declaration is one for
which the CORPORATION Is not liable n
demurrer is the usual and proper way
10 raise the question. Affirmed.