Clark v. Town of Easton
| Decision Date | 09 January 1888 |
| Parties | CLARK v. TOWN OF EASTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L.C. Southard and D.F. Buckley, for plaintiff.
If the acts complained of--to-wit, the trespass upon the land of the said Charlotte A. Clark, and the depositing thereon of earth and rubbish, and the flowing of her land--were done by authority of the town, or by its agents, acting within the general scope of their powers, the town is liable. It cannot be denied, unless the act complained of were done by road commissioners, duly and legally elected, and acting as such that the defendant town would be liable for the damages suffered by the plaintiff. Mayo v. Springfield, 136 Mass. 10; Deane v. Randolph, 132 Mass. 475; Murphy v. Lowell, 124 Mass. 564; Hill v Boston, 122 Mass. 358, and cases cited; Thayer v Boston, 19 Pick. 513; Hawkes v. Charlemont, 107 Mass. 414. The plaintiff contends that it appears by the evidence in the case that said three persons were not duly and legally elected road commissioners at the time they did the acts complained of. The provisions of the statute creating the office of road commissioner are contained in Acts 1871, c. 158, § 2, and chapter 51, Acts 1873; but these statutes require that the town seeking to avail itself of these provisions should formally accept them. It appears by the evidence that this was never done. It cannot be considered that these three persons were road commissioners de facto, as no such office exists. They were not elected as highway surveyors; and by virtue of the provisions of Pub.St c. 27, § 78, the highway surveyors previously elected hold over until their successors are legally chosen. Therefore, no vacancy existed in the board of highway surveyors at the time the acts complained of were committed, and, therefore, it cannot be claimed that these three persons were highway surveyors. The offices of road commissioners and highway surveyors are not the same. Both offices cannot exist in the same town at the same time; and, no highway surveyor having been elected since 1878, those chosen in that year have ever since continued in office. The persons under whose directions the act complained of took place were not these highway surveyors. The office of road commissioner did not exist. The evidence shows that these three persons were put in charge of the streets and highways of the town, and the grading and repairing of the same were committed to their charge, and the work so done by them, including the repairs on Center street, was accepted by the town. Therefore it follows, inasmuch as they were not road commissioners or highway surveyors, they were the agents of the town; at least, it was a question of fact for the jury. The town can only avail itself of the provisions of the statutes creating the office of road commissioners by showing that it has expressly and strictly complied with the provisions of the several acts. Even if these persons were road commissioners, either de jure or de facto, and did the act complained of as agents of the town, or under the direction of its selectmen, they would be only agents of the town, and it would be liable for their acts; and that they were acting as its agents the town fully acknowledged, as appears by the evidence. The town ratified the trespass complained of; and, by allowing it to continue, it became liable for maintaining it. 1 Dill.Mun.Corp. p. 460, § 463, and cases cited; Arlington v. Peirce, 122 Mass. 272; County of Jasper v. Ballou, 103 U.S. 745; Hildreth v. Lowell, 11 Gray, 349; Thayer v. Boston, 19 Pick. 513. That a town would be liable for the negligent maintenance or repair of its drains or culverts, does not appear to need argument. Among the powers conferred upon the road commissioners by the statutes are matters concerning streets, ways, bridges, sewers, and drains, and they are exclusively given the powers and liabilities of selectmen, as well as those of highway surveyors. It has been held that selectmen, while exercising those powers, were agents of the town; and we submit that there is no reason why a road commissioner, while exercising the same powers, should not be considered also the agent of the town. Higginson v. Nahant, 11 Allen, 534; White v. Phillipston, 10 Metc. 108.
H.J. Fuller, for defendant.
In 1883, without any vote or special authority from the defendant town, the road commissioners raised the grade of Center street, a public highway in said town, and, in so doing, committed the alleged trespasses upon the plaintiff's land. The road commissioners were public officers, elected by the town in obedience to statute requirements, and if, in the performance of their duties as such public officers, they committed trespasses upon the plaintiff's premises, the town is not liable. Perley v. Georgetown, 7 Gray, 464; Bigelow v. Randolph, 14 Gray, 541; Hafford v. New Bedford, 16 Gray, 297; Walcott v. Swampscott, 1 Allen, 101; Buttrick v. Lowell, Id. 172; Barney v. Lowell, 98 Mass. 570; Fisher v. Boston, 104 Mass. 87; Haskell v. New Bedford, 108 Mass. 208; Dunbar v. Boston, 112 Mass. 75; Hill v. Boston, 122 Mass. 344; McCarthy v. Boston, 135 Mass. 197. The town is only liable for the acts of its agents over whom it has control and direction. Sullivan v. Holyoke, 135 Mass. 273; Waldron v. Haverhill, 143 Mass. 582, 10 N.E. 481. The persons by whom and under whose directions the trespasses upon the plaintiff's premises were committed were the road commissioners de facto, if not de jure, acting under color of an election by the town, and their title to the office cannot be questioned or disputed in this collateral proceeding. Elliott v. Willis, 1 Allen, 461; Fowler v. Bebee, 9 Mass. 231; Bucknam v. Ruggles, 15 Mass. 180; Doty v. Gorham, 5 Pick. 487; Coolidge v. Brigham, 1 Allen, 333; Railroad Co. v. Railroad Co., 1 Allen, 552; Inhabitants of Sudbury v. Heard, 103 Mass. 543; Petersilea v. Stone, 119 Mass. 465; State v. Carroll, 38 Conn. 449; Leach v. People, 12 N.E. 726. The town had no authority by vote to order the road commissioners to commit trespasses upon the plaintiff's land, and deposit thereon "stone, earth, and rubbish;" and if the commissioners had done so in pursuance of any such vote, the town would not be liable. Cavanagh v. Boston, 139 Mass. 426, 1 N.E. 834; Spring v. Hyde Park, 137 Mass. 554; Cushing v. New Bedford, 125 Mass. 526; Lemon v. Newton, 134 Mass. 476. The liability, if any, rests upon the individuals who perform these acts. Cavanagh v. Boston, supra; Brigham v. Edmands, 7 Gray, 359. A fortiori, the town could not adopt and ratify such illegal acts. The town had no authority to vote "that the selectmen be instructed to take, in the manner by law provided, so much of said land as may be necessary for the proper construction of said street." Kean v. Stetson, 5 Pick. 492; Harrington v. Harrington, 1 Metc. 404. The proper construction of the vote is a repudiation of the acts of the commissioners, rather than an adoption and ratification. The evidence of tender offered by the plaintiff is inadmissible, being the act of public officers not specially authorized by the town.
OPINION
This is an action of tort for a trespass upon the plaintiff's land. The trespass consisted in entering upon the land and depositing thereon stone, earth, and rubbish, thereby obstructing a water-course. The acts of trespass were committed by three persons, acting as road commissioners, in repairing a town way.
It is too well settled to need extended discussion that officers like surveyors of highways and road commissioners, although they are elected and paid by the town, are public officers and not agents or servants of the town, and that the town is not responsible for their acts in the performance of their public duties. Elliott v. Willis, 1 Allen, 463; Barney v. Lowell, 98 Mass. 570; Sudbury v. Heard, 103 Mass. 543; Haskell v. New Bedford, 108 Mass. 208; Cushing v. Bedford, 125 Mass. 526; McCarthy v. Boston, 135 Mass. 197. A majority of the court is of the opinion that this principle applies in the case at bar, because the persons who committed the trespass were acting as public officers, and were road commissioners de facto, if not de jure.
At the annual meeting in March, 1883, the town elected three persons as road commissioners, being the same persons who did the acts of trespass complained of. In the year 1874, the town voted "to choose three road commissioners for the ensuing year, to superintend the repairs of highways and town ways," and also voted "that all roads authorized or ordered to be built shall be built under the direction of the road commissioners." In that year, and in every year up to and including the year 1883, the town elected three road commissioners, with the same powers and duties. It appeared in the trial of the case at bar that the town had never voted to accept...
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