taken for public purposes without just compensation. That being so, it is clear that if the public corporation occupies my premises with a physical structure, it is to that extent taking my property, and must pay me for it. Upon some such an idea as this are based decisions in cases like that of Miles v. Worcester (50) in which the city erected the wall of its high school on the plaintiff's land. To deny a recovery on the ground that the city, in managing the school, was a public agent, would be to permit a taking of the plaintiff's property without compensation, and accordingly a recovery ought to be and is permitted. In another case the city negligently constructed a privy upon school property so that the plaintiff's cellar was flooded with sewage, and a recovery was properly allowed (51). It would seem that decisions of this kind cannot determine the rule of liability where the plaintiff is injured while on city property because of the unsafe condition of the latter.

§ 62. Failure to provide adequate public works. Great confusion exists in the cases dealing with this subject; and again this is due, in part at least, to a failure on the part of many judges to distinguish between what are really different situations. Obviously it would not do to hold public corporations liable for failing to exercise all their powers to provide public works, if the injury to the plaintiff was one which would have resulted even if the municipality had not acted at all. We have seen above that for a failure to exercise its ordinance power the municipal corporation is never liable, and the same reason

(50) 154 Mass. 511.

exempts the corporation for injuries resulting from the failure to supply public works. Such a case is that of Mills v. Brooklyn (52) in which the plaintiff's property was flooded with surface water, the city sewer and drainage system being insufficient to carry it off. Clearly, if the city had never had any sewer system at all, the same or a worse injury would have taken place, and accordingly the city should not be liable. The decision was, therefore, in favor of the city.

§ 63. Affirmative damage caused by defective public works. It is a different matter, however, if the city plans a public work, carries it out, and so changes the situation that damage is caused which would not otherwise have been inflicted on the plaintiff. For example, in Seifert v. Brooklyn (53) the city planned a sewer which did not have sufficient capacity to carry the sewage, the result being that sewage came up through the manholes of the sewer and flooded plaintiff's property. The city was very properly held liable. The difference is between omitting to prevent injury to plaintiff in the first case, and actively causing injury to the plaintiff in the second. This very obvious distinction has not been kept in mind, and a general statement that a city is not liable merely because it failed to adopt a plan for adequate public works, true enough when applied to proper cases, has been used to deny liability when the city has acted in constructing a public work so as to damage the plaintiff in a way in which he would not have been injured if the city had not acted. For ex

(52) 32 N. Y. 489.

ample, in Johnston v. District of Columbia (54) foul water from a sewer escaped into plaintiff's land, because of the inadequacy of the original plan in failing to provide for a sewer of sufficient capacity to carry the water and sewage. A recovery was denied, on the ground that the municipality was vested with a discretion in providing public works and the court could not undertake to supervise their exercise of that discretion. The result of such a decision is that if an inadequate plan for a sewer is adopted and injury results, even from a physical invasion of plaintiff's premises, the city is not liable, but if an adequate plan is adopted and defectively executed, the city is liable if the same kind of an injury results. This is hardly a satisfactory result, and the better view seems to be that taken in other cases, that, for acts of commission such as this, the city is liable, even if the injury result from a defective plan. It is assumed, of course, that in all these cases the public work is of a private and local character, and not purely public and governmental. As previously stated, the cases are conflicting in their decisions upon these questions and it is difficult to state the law with any degree of accuracy. In Detroit v. Beckman (55) the injury complained of resulted from the adoption by the city of a defective plan for a culvert, the plaintiff driving off the end of the culvert into a ditch. The city was held not liable, on the ground that the adoption of a plan was legislative in character and its adequacy could not be reviewed by the court. The same court, however, holds the city liable if the act results in a physi

(54) 118 U. S. 19.

cal invasion of another's property, as in Ashley v. Port Huron (56); but it seems that the rule ought to be that if the city creates a dangerous situation which did not previously exist and injury results from that, it should be responsible therefor. That was the view taken in Gould v. Topeka (57) in which the injury for which plaintiff recovered resulted from being thrown over the side of an embankment built by the city without any railing or lights, the original plan calling for none. The tendency of the later cases seems to be in the direction of compelling the city to adopt a reasonably safe plan as well as to execute it without negligence after it has adopted it (57), though many still follow the older rule (58).

§ 64. Liability of public corporations in tort for ultra vires acts. Since a corporation of any kind is not a natural person, the law has always had considerable difficulty in dealing with the question of the responsibility of the artificial legal person for acts done in its name by its members or officers. On the one hand it is urged that since the corporation is only an artificial and not a natural person, it can do only those things it is authorized to do; on the other, it is argued that in reality the law simply treats the group of persons who are members of the corporation as one person for convenience, and that the group really constitute the corporation. Space fails us to go into this discussion, and we must content ourselves with noticing that today private corporations are held to a very wide responsibility in tort, even for acts involv

(56) 35 Mich. 296.

(57) North Vernon v. Voegler, 103 Ind. 314.

ing malice, such as malicious prosecution. In dealing with public corporations, in addition to the difficulties arising in connection with private corporations, we have the additional fact to deal with that usually the members of the corporation, the voters, do not authorize the doing of particular things, as do the stockholders of a private corporation at the stockholders' meeting, but merely elect representatives who do all that is done in the name of the city (59). The usual problem is whether the city or other public corporation is liable for wrongful acts committed by their representatives in conection with undertakings not authorized by the charter of the corporation. To begin with, it is clear that all torts are in a sense ultra vires, i. e., beyond the powers of the corporation. It is clear, however, that any sensible system of law must hold the corporation responsible for injuries wrongfully inflicted on other persons by their representatives who are engaged in carrying on undertakings which are duly authorized by the charter and are of a private and corporate character. In fact, we have up to this point assumed that to be the rule, and the discussion in the preceding sections shows that it is. The real difficulty begins when the officials of the city or other public corporation undertake a work not authorized by the charter and in carrying it on injure some one. In the space at our command we cannot go fully into a discussion of the cases dealing with this subject. If any general rule can be formulated, it amounts very nearly to this: If the work undertaken and in the course of which the injury occurs be within the

(59) The introduction of the initiative and referendum will, of