Hicks v. Dorn

By the Court, Ingalls, J. It was the duty of the defendant, as superintendent of repairs on the Erie canal, to remove obstructions which hindered or prevented navigation thereon. (Adsit v. Brady, 4 Hill, 630. Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. Rep. 648.) It was not only made his duty by law, but he was expressly instructed by the canal' commissioners to discharge that duty. The referee finds that the defendant acted in, good faith in all that he did, and the injury to the plaintiff’s property was no greater than the act necessarily involved. The defendant properly determined in regard to the necessity and propriety of removing the defendant’s boat as an obstruction, and can only be held responsible upon the ground that he was chargeable with negligence, or improper con [177] duct in executing the work. The rights of an individual in regard to his property should.be respected; and even public officers are not at liberty to disregard such rights, unless there is a clear and urgent necessity therefor, to subserve an important and pressing public necessity. Mere convenience on the part of the public in regard to the mode to be adopted in accomplishing a result, would not, in my judgment, create such a necessity as would justify a material injury to or destruction of the property of an individual. Certainly not, if any other legitimate mode could be resorted to and produce the same result without serious injury to public interests. In other words, there must exist a pressing necessity, both in regard to the work to be performed and the manner in which it should be executed, to justify such an act. Ho other rule would be safe or furnish adequate protection to the citizen against the encroachment of superior power. It is not pretended that the plaintiff was guilty of negligence or improper conduct in the management of his boat. The question therefore presented for the determination of the referee was, whether, in view of the circumstances, it was necessary for the defendant to destroy the plaintiff’s boat, in order to remove it, as an obstruction to navigation. In determining this question, it became necessary for him to ascertain from the evidence, whether the defendant could not reasonably have adopted some other method to accomplish the same result, and thereby avoided doing the plaintiff such serious injury. If the defendant could have repaired the breach occasioned by the water, by a resort to ordinary means, and thereby continued navigation without material interruption or serious detriment to the public welfare, it certainly was his duty to have done so, instead of adopting this extraordinary measure, so fraught with injury to the plaintiff. The evidence discloses, and the referee has found, that there were several methods by which the obstruction could have been removed and the difficulty obvi [178] ated, which were brought to the attention of the defendant before he entered upon the work. One was by constructing a coffer-dam in the basin of the canal, around the stern of the boat, and raising the water so as to float the boat, which could have been accomplished in two or three days, at an expense of $900, and $250 or $300 to remove the dam. Another was to repair the banks of the dry dock, which could have been done in two days. Another, by damming up the culvert, and thereby raising the water so as to float the boat and close the gates. It appears that from eight to ten hours were expended in cutting the boat, and about twelve hours to restore navigation, and the plaintiff was damaged to the extent of $1500. There is considerable evidence bearing upon the feasibility of the several methods. In my opinion a fair question of fact was presented for the determination of the referee, whether, in view of all the circumstances, the defendant exercised reasonable prudence in executing the work in question; whether he was justifiable in pursuing an extraordinary rather than an ordinary method in removing the obstruction. The evidence shows pretty clearly that, with possibly some additional delay and expense, the work could have been accomplished, and the plaintiff’s property preserved. Is it just or reasonable to conclude, in this case, that there existed, what Senator Sherman, in his opinion in Russell v. The Mayor &c. of New York, (2 Denio, 475,) denominated “an overruling necessity” which justified the sacrifice of the plaintiff’s property ? I am of opinion that, at least, the evidence does not so far preponderate in that direction as to call upon this court to reverse the decision of the referee in that particular. In what the defendant did after he determined the necessity of removing the obstruction, I think he must be deemed to have acted ministerially, and was therefore bound to exercise reasonable care, prudence and discretion in performing the work. (Barton v. The City of Syracuse, 3d N. Y. Rep. 54. Robin [179] son v. Chamberlin, 34 id. 389. Rochester W. Lead Co. v. The City of Rochester, 3 id. 463.) [Albany General Term, May 3, 1869. Due regard for the interests of the public, by public officers, is commendable, and they are entitled to reasonable protection when acting within the scope of their authority, and in good faith. But the rights of the citizen should not be disregarded by improperly imposing upon him a burden which should be borne by the State. The plaintiff was free from blame, and the expense of the work in question was properly chargeable to the State, and under the facts of this case the defendant was not justified in destroying the plaintiff’s property, and thereby subjecting him to the loss, instead of by some other means removing the obstructions at the expense of the State. Whether the State will allow its servant, who has acted in good faith, and but too' strictly in its favor, for the interest or even the right of the plaintiff, to suffer, is not for us to speculate. The judgment should be affirmed, with costs. • Decision accordingly. Miller, Ingalls and Peckham, Justices.]