legalized by an express act of the Legislature. But unless so legalized, a nuisance erected and maintained by a public corporation may be proceeded against, criminally or otherwise, the same as if erected by private persons." [The court here cited and quoted from the following decisions: Mayor v. Wilson, 49 Ga. at 478; Wartman v. Philadelphia, 33 Pa. St. at 210; Richmond v. Smith, 148 Ind. at 296; McDonald v. Newark, 42 N. J. Eq. at 138.] Many cases could be cited, but they all follow the trend of the original cases, and all are in harmony with the cases from this State, reviewed in State ex rel. v. Wabash Railroad, supra. A municipal corporation has no right to obstruct a public highway, by ordinance or otherwise, in the manner in which this highway is obstructed. What the city cannot do, it cannot by ordinance authorize individuals to do. The ordinances in this case upon which plaintiffs rely are void. They exceed the granted power of the city. Something is said as to the statute of limitations, but this does not and cannot apply, for the reason that the plaintiffs throughout recognized that the building in question was one within a dedicated street. Plaintiffs claim under and through the city by reason of these ordinances and not otherwise. They have never asserted an independent right of possession and do not in the pleadings assert it now. From first to last their claim has been one under the grant made by these two ordinances. The judgment of the trial court which dismissed plaintiff's bill should be and is affirmed. All concur. Public Easements: How Established. VANN, J., IN CITY OF COHOES v. DELAWARE, 134 N. Y. 397, at 402. 1892. PUBLIC highways may be created in four ways: 1. By proceedings under the statute. (2 R. S., 8th ed., p. 1372, et seq.; also p. 1383, § 100.) 2. By prescription, or where land is used by the public for a highway for twenty years, with the knowledge, but without the consent, of the owner. The presumption of a grant of the right of way springs from the mere lapse of said period of time in connection with the adverse user by the public. 3. By dedication through offer and implied acceptance, or where the owner throws open his land intending to dedicate it for a highway, and the public use it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment. This rests upon the principle that the owner is estopped from revoking his offer after the public have acted on it for so long a period that it would be a fraud upon them if he were permitted to do so. No particular length of time is required to effect such a dedication, as every case of an estoppel in pais necessarily depends upon its own facts. 4. By dedication through offer and actual acceptance, or where the owner throws open his land and by acts or words invites acceptance of the same for a highway, and the public authorities, in charge of the subject, formally, or in terms accept it as a highway. In the absence of an actual conveyance the owner does not part with his title to the land, but only with the right to possession for the purpose of a highway. CHAPTER VI. TORTS. For the Torts of Officers and Employees, under the Rule Respondeat Superior. DARGAN v. MAYOR, ETC., OF MOBILE. 31 Ala. 469. 1858. APPEAL from the Circuit Court of Mobile. Action for damages for the loss of a slave, which, the plaintiff alleges, was negligently killed by police officers of the city while attempting to arrest the slave for violating the city ordinances. The ordinances concerned are adverted to in the opinion of the court. A demurrer to the complaint was sustained by the Circuit Court. WALKER, J. The corporation of the city of Mobile had authority to pass ordinances providing for the arrest and punishment of slaves abroad in the city, after nine o'clock at night, without written permission; or assembling in numbers of four or more, off the owner's premises, without the permission of the mayor or one of the aldermen. This power was purely political in its character, and exclusively for the benefit of the public. As to that power, the corporation was a government, imperium in imperio. The employment of the officer for whose negligence in the discharge of his duty the corporation is sued, was the necessary, proper, and authorized means for the execution of that power; and the action of the officer, from its nature, was not susceptible of supervision by the corporation. See 37th section of charter. In the legislative adoption of the ordinances described in the pleading, and in the appointment of the officer, the corporation exercised a lawful authority. It is not alleged that the corporation was guilty of any negligence or misconduct in the selection of the officer. The question here is not as to the liability of a corporation for the omission to discharge its duty; nor for the performance of an unlawful act by it or its authority; nor for the exercise of a power not delegated; nor for the negligence of its agents, or officers, in the performance of an act for the private benefit of the corporation, or done under the immediate supervision of the corporation. The question of this case is, whether a municipal or public corporation is liable in damages, for an injury resulting from the careless or negligent official conduct of one of its officers, in whose selection there was no negligence, and whose employment was the lawful and necessary means of executing a governmental power vested in it for the public benefit, and whose acts are not done under the supervision of the corporation. This question we decide in the negative. Because the corporation is, as to the passage of the ordinances and the appointment of the officer described in the pleadings, a government, exercising political power, it is irresponsible for the official misconduct alleged, upon the same principle which generally protects governments and public officers from liability for the misfeasances and malfeasances of persons necessarily employed under them in the public service. Story on Agency, §§ 319, 319a, 319b, 320, 321; Dunlap's Paley's Agency, 376. Municipal corporations, quoad hoc stand upon the same foundation with public officers, counties, townships, and other quasicorporations, charged with some public duty, or invested with some portion of the authority of the government, where the employment of officers is necessary and lawful. [The court then reviewed a number of early decisions.] * The judgment of the court below is affirmed. BAILEY ET AL. v. MAYOR, ETC., OF NEW YORK. 3 Hill 531 (N. Y.). 1842. CASE, to recover damages for the destruction of plaintiff's mill property on the Croton River by the bursting of a dam on that river. The plaintiffs allege that the bursting of the dam was the result of the negligence of agents and servants of the defendant in charge of constructing and maintaining it. At trial it appeared that the dam had been built under the direction of water commissioners, appointed by the governor for the purpose, in pursuance of certain special statutes. These statutes provided that the commissioners should prepare and submit to the city council a plan for supplying the city with water; and that upon the favorable vote of the city council, and of the electors of the city, and the furnishing of funds therefor by the city council, the commissioners should construct the works. Under the ordinance which instructed the commissioners to proceed with the work, securities of the city were to be issued to provide funds; and revenues, which were to be derived from furnishing water to the inhabitants, were to be devoted first to redeeming the securities. The compensation of the commissioners was to be paid by the city. Plaintiffs excepted to the rejection of evidence that the dam was negligently and unskillfully constructed. NELSON, C. J. The principal ground taken at the circuit against this action, and the one upon which it is understood the cause there turned was, that the defendants were not chargeable for negligence or unskillfulness in the construction of the dam in question; inasmuch as the water commissioners were not appointed by them, nor subject to their direction or control. In other words, the commissioners not being their agents in the construction of the dam, the rule respondeat superior could not properly be applied. Another ground is now taken, which I will first notice, viz., that admitting the water commissioners to be the appointed agents of the defendants, still the latter are not liable, inasmuch as they were acting solely for the State in prosecuting the work in question, and therefore are not responsible for the conduct of those necessarily employed by them for that purpose. We admit, if the defendants are to be regarded as occupying this relation, and are not chargeable with any want of diligence in the selection of agents, the conclusion contended for would seem to follow. They would then be entitled to all the immunities of public officers charged with a duty which, from its nature, could not be executed without availing themselves of the services of others; and the doctrine of respondeat superior does not apply to such cases. If a public officer authorize the doing of an act not within the scope of his authority, or if he be guilty of negligence in the discharge of duties to be performed by himself, he will be held responsible; but not for the misconduct or malfeasance of such persons as he is obliged to employ. Hall v. |