Justus R. Fortune v. City of Tallahassee

Justus R. Fortune v. City of Tallahassee

Lower Court

  • Leon County


  • 1849


  • 473


  • 854


The neglecting to do a thing which the public good requires. We can have little difficulty, in asserting, that the large ditch, gully or chasm situated in the East end of the street named in the declaration, which street was a common highway as asserted by the declaration and admitted by the demurrer, was a common nuisance that the corporation of the city of Tallahassee, is an aggregate corporation, which has or may be supposed to have a common fund, as it has the power of assessing and collecting taxes, and the power to purchase and hold real personal and mixed property. It has also the power to prevent, and remove nuisances, and provide for the interior police and good government of the City, It was contended by Plaintiff in argument and not denied by Defendants, as we think with much property that the legal power to remove nuisances having been conferred on the corporation by statute, carried with it the implied legal obligation to remove them.

It is therefore the opinion of the court, that the city of Tallahassee was guilty of a nonfeasance, in permitting the nuisance mentioned in appellees declaration to remain, And that the Plaintiffs having lost his mare by reason of her falling into the said common nuisance and being thereby bruised so that she died, He is entitled to have an action of trespass on the case against the said corporation for said special damage unless it occurred by his own gross negligence and this brings to consider that seemed objection of appellants