Munson v. Mallory

Carpenter, J. The original action was an action of trespass guare clausum fregit. The locus in quo was 'a highway. The act complained of as a trespass was committed in repairing- and widening the traveled path of the highway. The plaintiff was an adjoining proprietor, and the defendant was acting under the'authority of a highway surveyor. The magistrate rendered judgment in favor of the plaintiff. The defendant filed exceptions, and upon a writ of error the Superior Court reversed the judgment of the magistrate. The plaintiff, by a motion in error, brings the record before this court, and asks that the judgment of the Superior Court may be reversed. The plaintiff claims that it was not competent for the defendant, under his notice, to prove that he did the acts complained of under the authority of the highway surveyor. This may be so; but whether so or not is quite immaterial^ provided the defendant had a right to prove the same facts under the general issue. We think it was competent for him to do so. In an action of trespass to land inclosed in the ordinary way, or unincumbered by a highway, the plaintiff needs only to prove in the first instance a breaking and entering. That is primd facie a trespass. If the defendant would justify under a license from the owner, or under authority of law, he must, by plea or notice, apprise the plaintiff of the facts which he relies upon as a justification. But where the locus in quo is a highway, it is incumbent upon the plaintiff to prove something more than a mere entry. Ho must in the first instance prove such facts and circumstances as show that the act was unlawful; or, if lawful, that it was done in an improper manner. Proof thus offered may be met and repelled by the defendant. Hence it follows that the character and nature of the act, with the attending circumstances, are necessarily involved in the inquiry under the general issue. [173] It sufficiently appears from the hill of exceptions that the defendant was authorized by the surveyor to widen the traveled part of the highway. He was -the servant of the surveyor, and his proposition to do so was assented to by him. The act of the defendant then, in this inspect, may be treated as the act of-the surveyor. That presents the question whether the surveyor liad any lawful right to widen the traveled path. The justice hold that he had not; and thereby excluded all inquiry as to the reasonableness or propriety of the alteration made. We cannot sanction this ruling. We do not intend to intimate that a surveyor may not exceed his authority; nor, in such a case, that he would not be liable to an adjoining proprietor who had thereby sustained an injury. But from what we'know of this case we cannot say, as matter of law, that the surveyor had no right to add ten feet to the road-bed at the place in question. Ho may not, of his own motion, take land not already condemned to the purposes of a highway; nor may he, as between himself and the town, incur an unreasonable and unnecessary expense in changing the line of travel within the limits of the highway ; but it is too much to say that every slight and inexpensive change of the line of travel is unauthorized by law, and subjects the surveyor to damages at the suit of the adjoining proprietor. On the contrary we think he may very properly make such changes wherever in his judgment the interests of the public require it. This view of the law is not in conflict with any of the authorities cited. The strongest case referred to, and the one on which the plaintiff chiefly relies, is that of Todd v. Inhabitants of Rowley, 8 Allen, 56. That was a suit brought by the surveyor against the town to recover damages for injuries sustained by reas’on of a defective way. It appeared that the surveyor had received a given sum of money to expend in repairing the highways within his district. He expended it in widening the graded part of a highway near his own house, and to some extent in changing the line of travel to a part of the located way where it had not before gone, the defendants contending that it amounted to making a new way altogether. Other highways within his district, [174] including the one where the accident happened, were left in a defective condition. -The court held that he had no authority to expend any portion of the money committed to him for the repair of highways, in changing the line of travel and constructing a new road; and having done so ho could- not recover for an injury sustained by reason of a'defect which he might have repaired by a proper application of the funds. Thus it will be seen that this case had no reference to the rights of adjoining proprietors; and even as between the surveyor and the town it falls far short of establishing the doctrine that the line of travel may not be changed, when such change results from reasonable and proper repairs of existing ways. The ruling of the justice that a surveyor had “ no power to widen a road, so as to shift the traveled track of a road nearer the land of one party than the land of the other,” was erroneous, and his judgment was properly reversed by the Superior Court. In respect to the liability of surveyors and other officers for acts done within the scope of their authority, the rule is very clearly stated in Radcliff’s Executors v. Mayor &c. of Brooklyn, 4 N. York, 195. Bronson, Ch. J., says in that case, “ An act done under lawful authority, if done in a proper manner, can never subject the party to an action, whatever consequences may follow.” The whole question is there thoroughly considered and ably discussed, and the rule, as above stated, is abundantly sustained by the numerous authorities cited. “ This doctrine,” he adds, “ has often been asserted, and has never been denied in any well considered judgment.” The case before us then involves a two-fold inquiry:—1. Did the defendant act under and within the scope of lawful authority ? 2. Was the act done in a proper manner ? If both of these questions are answered in the affirmative, no liability attaches to the defendant, whatever may have been the consequences to the plaintiff. Erom what has been said it will be perceived that the questions put to witnesses, relative to the object and purpose of the defendant’s work and its effect, whether resulting in improving the condition of the way or otherwise, were perti [175] nent to the issue, and answers thereto should have been received, not merely in mitigation of damages, but as tending to prove a complete defense. For these reasons the judgment of the Superior Court was right, and ought not. to be disturbed. In this opinion the other judges concurred.