Cooney v. Town of Hartland

Mr. Justice Dickey delivered the opinion of the Court: This is an action by appellants against the town, seeking damages for injury to the lands of appellants, alleged to have been caused by the unlawful conduct of the highway commissioners of the town in diverting (in the construction or improvement of a public highway) from its natural course a stream of water, whereby it was caused to flow upon the lands of appellants. It is insisted by appellants that a distinction should be taken in such cases between acts of omission and acts of commission; that in the case of Town of Waltham v. Kemper, 55 Ill. 348, this court passed only upon a case of a neglect to perform an affirmative act, and while holding that such corporations are not liable for a failure to repair a bridge, the court did not hold that towns are not responsible for affirmative acts of tort done in its behalf by its officers. The suggestion is plausible rather than substantial. The town may construct a road lawfully by its commissioners of highways, but if the commissioners seize private property without lawful right, or injure the same unlawfully, the tort is that of the man or men who do the unlawful act, whether they be public officers or not, and can not be regarded properly as the act of such a corporation. The judgment in this case must be affirmed. Judgment affirmed.