Nicolai v. Town of Vernon

WiNslow, J. The only reasonable construction of the complaint is that the supervisors and pathmaster of the town, in their official capacities, are about to remove plaintiff’s fence, on the claim that it encroaches upon the public highway. This would be an act within the scope of their general official duties, and evidently done with an honest view (no bad faith being charged) to obtain for the town a benefit. It would be the attempted discharge of a municipal or corporate duty, as distinguished from a public or governmental duty. In such cases the municipality is liable if the acts of its officers prove to be unlawful. Hurley v. Texas, 20 Wis. 634; Durkee v. Kenosha, 59 Wis. 123. If the municipality is liable for an act of its officers, it must [553] be because the officers were its agents in the performance of the act, and the municipality has acted through its agents. In this case, therefore, under the allegations of the complaint it appears that the town is in fact the principal in the threatened invasion of plaintiff’s lands; and, if it be the principal, it is plainly a proper party to the -action brought to prevent the invasion. By the Oourt.— Order reversed, and action remanded for further proceedings according, to law.