Robert Cooper Grier

“ That the statute of Congress authorizing said corporation to open and grade streets in said city, is not a continuing power, but, when once opened and graded, that such corporation is not authorized to regrade the same in a manner whereby private property is injured; and that if they do so, they are liable to those injured for all damages sustained thereby. ”

“ 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 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. ”

“ That if the jury find that the fall between the north and south sides of K street in front of plaintiff's premises, by the first grading or first regrading, was not greater than that in one or more of the grades in the city of Washington made or suffered by the defendants in opening and grading said streets, that such fact will raise the presumption that said regrading was not a work of necessity, and was therefore illegal and unauthorized, and renders them liable to all such damages as the plaintiff sustained by such regrading. ”

“ 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. ”

“ The grades having been previously established, the power conferred in relation to streets and avenues was 'to open and keep in repair,' and not to grade. The intention of Congress was to authorize the city government to carry into effect the plan of the engineers who laid out the city, and of General Washington, who approved of it. It was not the intention to authorize that elaborate work to be broken up and defeated, in conformity to the caprices which might at any time spring into existence in the city government. Hence the limitation of the power conferred. ”

“ In the present case, there being no express power to grade streets, it is claimed that the authority to open streets not only confers that power, but that it continues, and may be exercised without limit, except upon proof of malice. But the power to open is not a continuing power, because when once opened a street cannot be opened again. The power to repair does not include that of establishing a new grade. ”

“ 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. ”

“ Such a rule would work mischief without end. It would be a justification of nearly or quite all the acts of public functionaries, if not of private individuals, of which so much complaint has been made. ”

“ It neither authorizes the opening a street, nor fixing its grade, but permits opening 'agreeably to the plan of the city,' which contained the grade of every street, avenue, &c. The city cannot lay out a new street, nor fix the grade of an old one. Its power does not extend to either. ”

“ THIRD.-The payment of damages to a portion of those injured residing in Franklin Row, authorized the presumption that the defendants did not act in good faith.
The defendants, as a corporation, derive their powers under the seventh and eighth sections of the act of 1820. (3 U.S. S., 586, 587.) There is no power conferred upon them to make gratuties ”