under consideration must be regarded as the act of the corporation. Herein lies the error in the opinion of the court below. It is, if I properly appreciate the arguments, that this is not to be regarded as the act of the corporation because it was an unauthorized act; an act which the corporation had no right to do, and that it shall not be deemed the act of the corporation, although done by the managers, who are the proper representatives of the corporation. This will hardly do, as it would, carried to its legitimate result, always excuse the corporation. The act, if an unauthorized one, would not render them liable, and if an authorized one, then it is to be the act of the trustees, and not the corporation.

It certainly would be difficult to charge a corporation for a misfeasance under such a rule, as the corporation can only act through some representative, and if it is not liable for wrongful acts of its principal representatives or managers, much less would it be for any act of its subordinate agents.

The verdict in this case should not have been interfered with, and the judgment of the General and Special Terms must be reversed and a new trial granted or judgment rendered for the plaintiff on the verdict. The verdict was not set aside as against evidence, but upon legal grounds solely, and the decision of the general term is properly reviewable in this court.

HUNT, CH. J., Woodruff, GROVER and DANIELS, JJ., concurring.

Lorr, J., thought there was a mis-trial, and that the court had no power to order a verdict for one party, and, on reserving the case for further consideration, direct judgment for the other. It could only set aside the verdict and order a new trial, if satisfied, on further consideration, the action could not be maintained.

JAMES, J., was for affirmance. Judgment reversed, and judgment ordered for the plaintiff upon the verdict.

AN ACTION MAY BE MAINTAINED AGAINST A MUNICIPAL CORPORATION FOR A TORT, ALTHOUGH DONE COLORE OFFICII.

THIRTY-FIRST SELECTED CASE.

THAYER ET AL. v. CITY OF BOSTON.

AN action sounding in tort may be maintained against a municipal corporation.

A municipal corporation may be liable in an action of the case for an act which would warrant a like action against an individual, provided that such act is done by the authority of the corporation, or of a branch of its government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or that after the act has been done, it has been ratified by the corporation by any similar act of its officers.

As a general rule, a municipal corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii.

It must further appear that the officers were. expressly authorized to do the acts, by the corporation, or that they were done bona fide in pursuance of a general authority to act for the corporation, on the subject to which they relate, or that, in either case, they were adopted and ratified by the corporation.

THIS action was argued in connection with the case of Stetson v. Faxon, ante, p. 147. It was an action on the case, brought by Rufus Thayer and Amara Stetson.

The declaration contained two counts: The first sets forth that the plaintiffs are seized in fee, as tenants in common, of a messuage in Boston, bounded southerly on Market Square or North Market street, and along, and over, and by the southerly front of the messuage there long has been, and of right ought now to be, a free and open paved space, public street or passage-way to and from the messuage, extending from the westerly end of Dock Square along the range of buildings standing in line with the messuage and running eastwardly to the street called Roebuck alley, which way the plaintiffs, by reason of their seizure and ownership of the messuage, had a right to enjoy; that the defendants, on the 1st of September,

19 Pick. (36 Mass.), 511 (1837).

1825, took up the pavement in front of the messuage and range of buildings and dug up the soil, etc., and erected stalls, benches, etc., on the passage-way, and obstructed the communication with the messuage, etc., per quod, etc.

The second count avers that the defendants erected and caused to be erected certain fences, buildings and obstructions in and upon that part of the passage-way lying easterly of the messuage and of an alley running by the easterly side of another messuage belonging to Stetson, adjoining the messuage described in the declaration, by means of which this messuage has been obscured and darkened, and access to it is obstructed, etc., and also deposited large quantities of earth, brick, stones, etc., per quod, etc.

The defendants pleaded the general issue.

It appeared at the trial that the removal of the pavement, etc., and the depositing of earth, etc., in front of the plaintiff's messuage, were acts done by the officers of the city, having authority over streets and public lands, and claiming to act by authority of their office, and that the persons employed were paid from the city treasury; and that the erection of stalls, booths, etc., and the occupation of the land in front of plaintiff's messuage were by persons under permission from officers of the city, claiming authority as such; and that the city received rent therefor, claiming title to the locus in fee.

The defendants objected that this action could not be maintained against them, for any of the acts alleged to have been done in the public street in question, because they were performed, not by the city, but by the surveyors of highways and other officers duly authorized by law; and if the officers were not so authorized, they, and not the city, were responsible for their unlawful acts; that the corporation could not be made answerable for any unauthorized trespasses of its officers, and that in fact it was incapable of committing a trespass. But for the purposes of the trial it was ruled that the defendants were responsible for the acts of the officers of the city.

The jury rendered a verdict in favor of the plaintiffs, in which, by the consent of the parties, the damages were apportioned among the several causes of complaint.

If for any one or more of the causes of action set forth this

suit would be maintained against the defendants, judgment was to be entered for the plaintiffs for such sum as the jury assessed for such cause or causes of action; but if the city was not responsible for any of them, the plaintiffs were to be nonsuited.

J. Pickering and C. P. Curtis, for the defendants, cited Riddle v. Locks and Canals, etc., 7 Mass. R., 169; Russell v. The Men of Devon, 2 T. R., 667; Mower v. Leicester, 9 Mass. R., 247; Baker v. Boston, 12 Pick., 184, and the New York cases there cited.

Metcalf and C. G. Loring, for the plaintiff, cited Lynn v. Turner, Cowp., 86; The King v. Bank of England, 2 Doug., 524; Sutton v. Bank of England, Ryan & Moody, 52; 3 Dane's Abr., c. 74, art. 9; Chesnut Hill Turnpike Co. v. Rutter, 4 Serg. & Rawle, 6; Smith v. Birmingham, etc., Gas Light Co., 1 Adolph. & Ellis, 526; Yarborough v. Bank of England, 16 East, 6; Clark v. Washington, 12 Wheat., 40; 4 Amer. Jurist, 303.

SHAW, C. J., delivered the opinion of the court:

This case, by consent, has been argued in connection with the case of Steatson v. Faxon pending in Suffolk, and involves many of the same facts which were presented in that case, and depends, to some extent upon the same principles.

The passage-way lying in front of the plaintiffs' estates and constituting part of what was formerly denominated Dock Square, is variously described, in different counts in the declaration, as a passage-way appurtenant to these estates, and as a public highway. We are apprehensive that some confusion has been thrown upon the case by treating this right of way as a private right, enjoyed by the plaintiffs in consequence of being seized of adjoining estate, instead of regarding the way as a public highway. It appears that it has been used by all the citizens of the commonwealth, to pass with their horses, carriages and teams for all purposes, for a period of more than forty years, from a time beyond legal memory, and this proves it to be a highway.

Many of the most important highways stand upon this basis and no other; and it would greatly endanger the public interests if a doubt could be raised whether the public have an easement in such highways, for the same purposes, and to the same extent, as in those which are proved by the records of the courts, by whom, in the legitimate exercise of their authority, they have been established. Indeed the law proceeds upon the presumption that at a period anterior to legal memory these highways were legally laid out, of which the evidence has been lost. It is doubted whether any other title for the public could be found to the use of the most frequented streets of the city.

The action is an action of the case against the city in its corporate capacity, for special damage, alleged to have been done to the plaintiffs, in their estate, by the officers of the city, having authority over the streets and highways of the city, by acts which they professed to do by virtue of their offices, and for the use and benefit of the city. It is a well settled rule of law, that if an individual suffer special damage, by any unlawful act, in obstructing a highway, he shall have his action although the party doing the act is liable to an indictment. But without such damage, although the act is unlawful, and although more injurious to one proprietor on account of his proximity to the highway than another, still he cannot have an action, because actions would thereby be multiplied indefinitely; but the offender shall be prosecuted by indictment, by which the offense shall be punished, and the wrong redressed once for all. What is special damage to sustain the per quod and enable one to have his several action, for an injury common to a whole community, is often a difficult question. It seems to be settled by authorities that it must be something not merely differing in degree, but in kind, from that which must be deemed common to all. But as this subject has been fully considered in the other case alluded to, it is not necessary in this, to discuss more at large.

Supposing this to be a public highway, and the plaintiffs to have sustained a special damage, so as to enable them, upon general principles, to maintain an action, then it is argued that such an action, sounding in tort, cannot be main