Cook v. Hecht

Gill, J. This is an action for damages, the plaintiff charging defendant with willfully, wantonly, unlawfully, and maliciously digging and constructing a ditch upon the side of the public road along the eastern boundary of eighty acres of land of the plaintiff, so as to interfere with the access of plaintiff to his farm. The answer is a general denial, and, as a special [277] defense, sets up that the defendant was a road overseer of the road district in which said road was located at the time of the injuries complained of, and that, as such overseer,, the said road being in bad condition, defendant used a common road grader, in repairing the same, in the ordinary and accustomed way, which made an excavation upon the side of the road along plaintiff’s land, about eight inches below the surface; that such repairs were proper and necessary, to make the road fit for travel, and that the defendant, in making such repairs, was not actuated by malice, ill will, or any improper motive, but only performed what, in .his best judgment as such overseer, he considered his duty in the premises; that there is nothing to prevent the defendant from bridging or tiling the ditch made by the grading, at any point he may desire opposite his land, with small cost. The reply is a general deniah The evidence discloses about this -state of facts: Plaintiff owns and resides on an eighty acre farm five miles south of Tipton; his dwelling is near the southeast corner of the land, and along the east side of the farm is a public road. In front of the dwelling the fence was set back about fourteen feet, so as to secure to plaintiff an easy approach to the front of his premises. The land on which the road was located sloped towards the north. At the southeast corner of the plaintiff’s land a ditch came in from the west and discharged the water onto the road, and at this point there had been for a long time a culvert constructed across the road so as to lead the accumulated water to the east side of the road, whence it had flowed north along the east side of the road, to some point north of plaintiff’s land. This had washed out the east part of the road to the depth of eight feet or more and was continuing to cut into the roadway. At the time in controversy, however, [278] the culvert across the road had become filled up and the water was allowed to spread over the road so as to make it muddy and difficult of passage along opposite plaintiff’s land. Defendant, as road overseer, attempted to repair the road and overcome the trouble, and in doing so he abandoned the old stopped-up culvert, and with a road scraper pulled the dirt from the west side of the roadway up into the middle thereof and thereby opened a space along the west side of the road and to the depth of eight or ten inches, so as to permit the surface water, coming from the west side of the road, to flow along north, passing in front of plaintiff’s farm approach. This left a shoulder, or small ditch, where plaintiff had been accustomed to drive onto his premises, which, as already stated, was at first only'about eight or ten inches deep, but the evidence tends to prove that it became washed out deeper, perhaps to the extent of twelve to sixteen inches, so that it was not thereafter convenient to draw loaded wagons over it. It is for this work, so done on the road alongside plaintiff’s farm, that he seeks damages from the defendant. The case went to the jury on an instruction by the court, telling them that if the defendant was, at the time he did the work, acting as road overseer, then they should find a verdict in his favor, which they did and the plaintiff has appealed. In our opinion the plaintiff made no case against the defendant. The court was asked to give a peremptory instruction for the defendant; and while this ■ was denied, yet the instruction given was to that effect, since unquestionably the defendant was in the performance of his duties as road overseer, when he repaired the road on account of which plaintiff complains. The defendant, as road overseer, sought to im [279] prove the highway (and which was within his jurisdiction) by raising the center thereof and turning the course of the water into a ditch or slight depression on each side of the road. The surface water had been allowed to run across the road just before it got to plaintiff’s land, and thence confined to the east side, flowed north. By means of this, a deep ditch had been cut along the east side, so as to destroy a portion of the roadway; and when the culvert had become stopped up, the water from the plaintiff’s side of the road was discharged onto the road, thereby impairing its use. These road overseers are statutory officers, clothed with certain discretionary powers. It is made their duty to exercise proper diligence in keeping the roads in good repair (Revised Statutes, 1889, section 7807), and as to how this shall be done is necessarily left to their judgment. They come, then, within the scope of the rule, well established, that public officers, vested with discretionary powers in the performance of certain duties, can not be held individually liable for their' acts, unless, willfully, maliciously and oppressively exercised. Reed v. Conway, 20 Mo. 22; Edwards v. Ferguson, 73 Mo. 686. They can not be individually held for mere mistakes in judgment. They are not liable so long as they honestly and in good faith perform the work intrusted to them. The injury must be maliciously and willfully committed; and by willful, says Judge Ryland in Reed v. Conway, supra, is meant “contrary to a man’s own conviction.” It may be, now, that this defendant did not pursue the best mode of improving the road at the point in question; it may have been better to have carried the water across the road by a culvert, rather than to lead it down in front of plaintiff’s premises, though numerous witnesses seem to have approved his conduct as. [280] the part of wisdom. . But, however this may be, he is not responsible for- such mistaken judgment. He was .there on the highway in question, representing the public, which had acquired the right of way, “with the powers and privileges incident to that right, such as digging the soil, using the timber and other materials found within the. limits of the road, in a reasonable manner, for the purposes of making the road,” etc. Wash. on Eas. & Serv. [3 Ed.] p. 228; Pemberton v. Dooley, 43 Mo. App. 176. We discover no evidence in this record that can justify the .charge that defendant acted in a malicious and willfully oppressive manner in repairing the road in question. We think there is no merit in the plaintiff’s case, 'and the judgment, which was for the defendant, will be affirmed. All concur.