Town of Galen v. Clyde & Rose Plank Road Co.

By the Court, Johnson, J. A very important, if not controlling question, lies at the threshold of this case, which is, whether the plaintiff can maintain the action, conceding a cause of action to have accrued against the defendant. Unless it can be shown that the contract, which the plaintiff asks to have annulled, is the contract of the town, or the right to the highway, which the defendant claims to have acquired, under it, was the property of the town, it is difficult to see how this _ action can be maintained. Bach town as a body corporate has capacity to sue and be sued. (1 R. S. 337, § 1.) Biit such capacity is, necessarily, I think, restricted to cases where the assertion of their corporate rights, or the enforcement against them of their corporate liabilities, require such proceedings. [551] Beyond that, as was said in Lorillard v. Town of Monroe, (1 Kernan, 392,) towns are not bodies corporate, but mere political divisions for the convenient exercise of portions of the political power of the state. As such they could have no standing in court, for any purpose. The only rights which the defendant could acquire under the contract, in the highway in question, was the easement which the public before had. The title to the lands over which the highway passed, remained in the respective owners, as before. Did this right of passage belong to, or was it in any sense the property of, the town, as a body corporate ? I think not. The right was in the public, and not in the town. At common law, in England, every highway was said to be the king’s, but the right was only a right of passage, for himself and his subjects. Here it must be in the people, not of any particular town or county, but of the whole state. Although by law the damages for lands taken for highways, are to be levied and collected in the town within which the highway shall be situated, it does not follow that the right acquired by the appropriation vests in the town and becomes part of its corporate property. Assessing the damages upon the town is only a convenient mode adopted for distributing the public burthens. The statute does not vest the right, when acquired, in the town, and it must, consequently, belong to the sovereign or body politic. It has been shown, I think, most clearly and conclusively, by Selden, J., in Morey v. The Town of Newfane, (8 Barb. 643,) that towns, as such, have no control over the highways, within their respective boundaries, and are in no respect liable for their unsafe condition. The commissioners of highways, to whom the statute commits exclusively the care and superintendence of highways and bridges in their respective towns, although town officers, in respect to their powers and jurisdiction, are not agents of their towns, in the sense of having charge of town property. They are public servants, charged with the care and superintendence of interests in which all the people are equally interested. The right is taken for public use, and does [552] not vest in any mere local corporation. This being so, it would seem to follow that the contract entered into between the defendant and the supervisor and the commissioners of highways of the town, was in no respect the contract of the plaintiff. It was not made in the name of the town. The parties to it are the defendant on the one side and the supervisor and the commissioners of highways of the town on the other. They are the persons designated by the statute to make the contract on behalf of the public, but they are not declared to be agents of the town, in the act, nor are they deemed to be, unless the subject of the contract is the property of the town. They are simply constituted public agents, for the purpose of transferring a right vested in the public. I am aware that it is said incidentally, in the opinion of the learned judge who delivered the opinion of the court in the case of Palmer v. The Fort Plain and Cooperstown Plank Road Co. (1 Kern. 376,) at page 391, that these officers conveyed to the corporation as agents of the town; and that the conveyance was “ virtually the act of the town through them.” This however was not the point decided, and is only a remark made in discussing the question before the court. The court did not in that case decide what party should properly bring the action. They only decided that it could not be maintained by the officers by whom it was executed, as they only acted in the capacity of agents. But the question whether they acted, in making the contract, in the capacity of ágents for the people of the state, or as agents for the town as a body corporate, was not before the court, and was neither discussed nor passed upon. It is to be observed in this connection, that the damages agreed upon, or assessed in case of disagreement, are to be paid not to the town, but to the commissioners of highways, who are themselves a quasi corporation. And they receive such damages, not for the benefit of the town, in its corporate character, but to be expended upon the highways in such town, in which, as I have undertaken to show, all the people in the state have an equal interest. I am clearly of [553] opinion, therefore, that the plaintiff has no right of action whatever, in the premises, against the defendants. In this conclusion I am strengthened and confirmed by the elaborate and well reasoned opinion of Emott, J., in The Town of Fishkill v. The Fishkill and Beekman Plank Road Company, (22 Barb. 634.) [Cayuga General Term, June 7, 1858. Welles, Smith and Johnson, Justices.] Having come to this conclusion, it is wholly unnecessary to discuss the other questions which are presented in the case, and which were passed upon by the referee. It will be in time to examine and decide those questions when a party shall be found competent to come into court, and claim the sweeping relief demanded by the plaintiff in his complaint in this action. It is enough for this case that the plaintiff, having no interest in the right, can maintain no action. Judgment affirmed.