Smith v. Corporation of Washington. By the appeal from the former decree, the time within which the money was required to be paid was necessarily suspended. But that decree having been affirmed by the supreme court, and remanded to the circuit court to be carried into effect, nothing further was required to be done. The tender and deposit of the money in court was all that Perin was required to do, to authorize the court to attach McMicken for a contempt, in refusing to make the conveyance. This involved no new question or decision, but was the ordinary means of enforcing the original decree. In no sense was this a final decree on which an appeal could be sustained. It is, in effect, the same as ordering an execution on a judgment at law, which had been affirmed on error, and remanded for execution to the circuit court. It has been held that an order of sale in execution of an original decree is not a final decree, on which an appeal will lie. (Keene v. Warren, 13 Peters, 439.) There are cases in which a second appeal may be taken, but it must be founded on a procedure subsequent to the original decree, and in a matter not concluded by it. This appeal is dismissed, at the costs of appellant. ANN C. SMITH, Plaintiff in Error, v. CORPORATION OF WASHINGTON. · 20 H. 135. DAMAGES FROM GRADING STREETS. 1. The power to open and keep in repair streets and alleys given to a city includes the power to establish a grade, and to change it when established. 2. For the exercise of this power, when carefully and skillfully done, no right of action accrues to proprietors of adjoining property by reason of this change of grade of the streets. THIS is a writ of error to the circuit court for the District of Columbia. The case is sufficiently stated in the opinion. Mr. Gillett and Mr. Cushing, for plaintiff in error. Mr. Carlisle, for defendant. * Mr. Justice GRIER delivered the opinion of the court. [*146] The declaration in this case alleges, in substance, that the plaintiff is owner of a lot in the city of Washington, fronting on K street; that this street was opened in front of her lot in the year 1831, and became a traveled street; that a wall had been erected in front of the lot, to protect it; that shade trees had been Smith v. Corporation of Washington. planted in front it; that a sidewalk had been laid; "that defendants unlawfully, wrongfully, and injuriously," cut down the shade trees, took down the wall, removed the pavement, and dug down the street in front of the premises, thereby obstructing and injuring the ingress and egress to plaintiff's lot and the buildings thereon -injuring their value, depriving her of the shade and ornament of the trees, and compelling her to pay large sums of money to enable her to use and occupy her house. It must be observed that the gravamen of this case is not a trespass on the property of the plaintiff, or the taking down a wall or removing shade trees thereon; nor the erection of a nuisance on the public highway; nor a willful, malicious, or oppressive [* 147] abuse of authority, in order to injure the plaintiff. * But the declaration charges that these acts of defendants, in reducing the level of the street, removing trees, pavement, &c., were done "unlawfully, wrongfully, and injuriously." On the pleadings and evidence in the case, the only questions of law that did or could arise on it, were 1st. Whether the corporation, defendant, had power to change the grade of the street, or acted "unlawfully and wrongfully" in so doing; and, 2d. If the act was lawful, were the defendants bound to compensate the plaintiff for the injurious consequences to her property? 1. First, then, as to the authority of the corporation. It is unnecessary, in the consideration of this point, to recur to the early history of the foundation of the city of Washington; suffice to say, the land was originally conveyed to trustees, "to be laid out as a federal city, with such streets, &c., as the President shall approve." It has been so laid out, and the streets dedicated to the public. As in all other cities and towns, the legal title to the public streets is vested in the sovereign, as trustee for the public; and consequently in this District they can be regulated only by congress, directly, or by such individuals or corporations as are authorized by congress. The act to incorporate the city of Washington, passed May 15th, 1820, among other specific powers and duties enumerated in the seventh section, has the following: "To open and keep in repair streets, avenues, lanes, alleys, &c., &c., agreeably to the plan of the city." It has been contended that this power, "to open and keep in repair," does not include the power to alter the grade or change the level of the land on which the streets, by the plan of the city, are laid out. Smith v. Corporation of Washington. But we think such a construction of this clause of the charter is entirely too narrow, and cannot be supported as consonant either with the letter or spirit of the statute. It is the evident intention and policy of this statute to commit to this corporation, as a municipal organ of government, whose members are chosen by the citizens, the care, supervision, and general regulation of the streets, as in other cities and boroughs. Where sums of money have been specially voted by congress for the improvement of the city, it is usual to order it to be expended under the supervision of the President. But no inference can be drawn from such legislation, that congress intended to retain the whole police and regulation of the streets to itself, so as to require a special act to alter the grade of a street, or that the President, in addition to his other duties, has imposed on him that of * street commissioner of Washington. The city corpora- [148] tion has the trust confided to them, and the duty imposed upon them, not only of opening the streets of Washington, but of "keeping them in repair.” Streets cannot be opened and kept in repair, or made safe or convenient for public use, without being made level, or as nearly so as the nature of the ground will permit. Hills must be cut down and hollows filled up, or, in other words, the road must be "graded" or "reduced to a certain degree of ascent or descent;" which is the proper definition of the verb "to grade." If the duty imposed on the corporation requires this to be done, the power must be coextensive with the duty. If charged with neglect of their duty, as public officers bound to keep the streets in repair, it would not be a sufficient excuse to allege that the fences and obstructions are removed, and therefore the street is "opened," or that it has been kept in as good "repair" as it was found. A court of quarter sessions would probably not receive a defense founded on such astute philological criticism of the terms of the statute. Nor could the allegation be admitted, that having once fixed a grade, which is now found improper and insufficient, the corporation has exhausted its power, and has no authority to change the level or grade, in order to keep the street in repair. As the duty is a continuing one, so is the power necessary to perform it. 2. Having performed this trust, confided to them by the law, according to the best of their judgment and discretion, without exceeding the jurisdiction and authority vested in them as agents of the public, and on land dedicated to public use for the purposes of a highway, they have not acted "unlawfully or wrongfully," as charged in the declaration. They have not trespassed on the Smith v. Corporation of Washington. plaintiff's property, nor erected a nuisance injurious to it, and are, consequently, not liable to damages where they have committed no wrong, but have fulfilled a duty imposed on them by law as agents of the public. The plaintiff may have suffered inconvenience and been put to expense in consequence of such action; yet, as the act of defendants is not "unlawful or wrongful," they are not bound to make any recompense. It is what the law styles "damnum absque injuria.” Private interests must yield to public accommodation; one cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience, at the expense of that of the public. The law on this subject is well settled, both in England and this country. The cases are too numerous for quotation; a reference to one or two more immediately applicable to the questions arising in this case will be sufficient. [* 149 ] * In Callender v. Marsh, (1 Pick. 417,) the defendant, as surveyor of the highways, was charged with digging down a street in Boston, so as to lay bare the foundations of plaintiff's house, and endanger its falling. The authority under which he acted was given by a statute which required "that all highways, townways, &c., should be kept in repair and amended from time to time, that the same may be safe and convenient for travelers." "This very general and exclusive authority," say the court, "would seem to include everything which may be needed towards making the ways perfect and complete, either by leveling them where they are uneven and difficult of ascent, or raising them where they should be sunken and miry." It was held, also, that the law does not give a right to compensation for an indirect or consequential damage or expense, resulting from a right use of property belonging to the public. In Green v. The Borough of Reading, (9 Watts, 282,) the defendants, by virtue of their authority to "improve and repair," graded the street in front of plaintiff's house five feet higher than it had been before, and it was held that the corporation was not liable to an action for any consequential injury to plaintiff's property, by reason of such improvement or change of grade in the public street. In the case of O'Connor v. Pittsburg, (18 Penn. Rep. 187,) a church had been built according to the direction of the city regulator, and by a grade established in 1829. Afterwards, in pursuance of an ordinance, the grade of the street was reduced seventeen feet; the church had to be taken down and rebuilt on a lower Lyon v. Bertram. foundation, at a damage of $4,000. The authority given to the city was "to improve, repair, and keep in order the streets," &c. The court say, "We had this case reargued, in order to discover, if possible, some way to relieve the plaintiff consistently with law, but grieve to say we can find none. The law is settled, not only in Pennsylvania, but by every decision in the sister States, except one.” We are of opinion, therefore, that the instructions given by the court below on these points were correct, and affirm their judgment. JOSEPH H. LYON, Plaintiff in Error, v. JOHN BERTRAM et al. 20 H. 149. RESCISSION OF CONTRACT-STATUTE OF LIMITATION-PARTIES TO SUIT ON JOINT CON TRACT. 1. The statute of the State requiring suits to be brought in the names of the real parties in interest is complied with when all the parties are joined as plaintiffs, though the specific interest of each is not set out in the petition or declaration. 2. A plea of two years' limitation is not good where the contract may not be barred under three years, unless it sets out such a contract (namely, parol) as will be barred by two years. 3. A contract for the purchase of a cargo of wheat is so far an entire contract that the receipt and payment for a part of it will prevent the purchaser from refusing to receive the balance, because it is of a different brand from that mentioned in the memorandum of sale. If it is not so good, he may sue for recoup in damages. THIS is a writ of error to the circuit court for the district of California. The special verdict and pleadings on which the alleged errors are founded are sufficiently stated in the opinion. Mr. Brent and Mr. Poe, for plaintiff in error. Mr. Fessenden, for defendants. *Mr. Justice CAMPBELL delivered the opinion of the court. [* 150 ] This suit was commenced by the defendants in error, to recover the price for a cargo of flour, bargained and sold to the plaintiff in error, in the city of San Francisco. The judgment of the circuit court was rendered upon a special verdict in favor of the plaintiffs in that court. The verdict finds that on the 13th January, 1853, the plaintiffs, and Flint, Peabody & Co., were, jointly, the owners of a cargo of flour, consisting of two thousand barrels, branded, and which were in fact Gallego, then being on the bark Ork, lying at a public wharf in San Francisco, and com |