Kreger v. Bismarck Township

Collins, J. It was not alleged or shown by the complaint in this action that the ditches in which plaintiff claims surface waters were [6] accumulated, and from thence cast upon his land, to its great injury, were dug by defendant’s supervisors within the limits of a highway. In fact, it may fairly be inferred from the pleading that, for the purpose of improving certain public roads, the supervisors entered upon private property, and there constructed the ditches in question. A town is without authority to ditch upon such property, except as the right may be acquired under the provisions of 1878 G-. S. ch. 13, §§ 101-108. Its supervisors could not in an official capacity do what it was not lawfully authorized to do; hence a town is not liable for the illegal or unauthorized acts of its officers, though done colore officii, unless it previously authorized or subsequently ratified such acts. As the complaint failed to allege or show that the acts complained of were performed by the supervisors within the scope of their power or authority, no cause of action was stated against the town. Order affirmed. (Opinion published 60 bf. W. 675.)