Commissioner of Highways v. Ely

• Decision Date: 18 June 1884
• Citation: 54 Mich. 173,19 N.W. 940
• Court: Michigan Supreme Court
• Parties: COMMISSIONER OF HIGHWAYS v. ELY.

19 N.W. 940

54 Mich. 173

COMMISSIONER OF HIGHWAYS v. ELY.

Supreme Court of Michigan

June 18, 1884

A commissioner of highways, or an overseer acting under his direction, incurs no liability to abutting owners if, in the proper exercise of his lawful discretion, and for the sole purpose of improving the highway, he runs a ditch in front of their premises which they have to bridge in order to reach the road.

The injury, if any, which a lawfully constructed ditch occasions an abutting owner, is damnum absque injuria.

Acts done by authority of a valid statute, and with reasonable care, will not support any liability for resulting damage.

Abutting owners have the right of access to the highway, and one who has been cut off therefrom by the running of a ditch, or the improvement of the road, may bridge the ditch, or grade the approach to his premises; but, in so doing, he must not obstruct the ditch or the way.

It is "willfully" obstructing a public ditch for one who knows its character to purposely and perversely fill it up in a permanent way, even though his object is to obtain access from his lands to the highway, and the act is done under a mistaken notion of his rights.

Error to Clinton.

L.W Hill, for plaintiff.

H.J Patterson, for defendant and appellant.

CHAMPLIN J.

The commissioner of highways sued Ely in justice's court to recover the statutory penalty for willfully obstructing a ditch constructed for draining the highway, (How.St. � 1403,) and recovered judgment before a jury. He appealed, and another jury trial was had, and he brings the case here on writ of error.

The record discloses that the defendant was the owner of lands adjoining the highway; that there was a hollow or sag in the road in front of defendant's lands, and on one side of the road-bed gravel had been taken for the purpose of repairing the road, leaving a dangerous pit. On defendant's land there was a swampy place, and he had caused a ditch to be made which drained the waters from this swamp in this low place in the highway, where it gradually percolated through the soil of the gravel-pit and disappeared. But at certain seasons there had been such quantities of water at this low place as to overflow the road, making the passage dangerous. For the purpose of draining the water from this low place and protecting the road-bed from overflow, the commissioner of highways directed the overseer of the road-district to dig a ditch along the side of the road, so as to carry off the water so accumulating in the highway as above described. The ditch, if constructed as directed, would pass in front of the gate of defendant leading to his wheat-field, in which a crop was then growing. The overseer against defendant's objections, acting in obedience to the instructions of the highway commissioner, constructed a ditch from the gravel-pit past defendant's gateway, at which point it was from eighteen inches to two feet in depth, and extending southward beyond defendant's lands to a culvert across the highway, the whole length of the ditch being some six or seven rods. This occurred on the twentieth day of June, 1882. When defendant objected to the digging of this ditch, the overseer told him if he would consent he would fix a safe and convenient passage over it if he had to build a bridge, but defendant refused, saying he did not want a ditch, and would not have a bridge. On July 14, 1882, defendant, claiming that he wished to draw his wheat from his field, filled the ditch in front of his gate with rails, boards, and gravel to the level of the adjacent surface. At this time no water was flowing in the ditch, and there was but little water in the pit, which defendant caused to be drained into the soil by loosening the earth with his spade. It is claimed by the plaintiff that this act of filling up the ditch was a willful obstruction of the ditch dug for draining the highway, while defendant insists it was for a lawful and necessary purpose, and did not injure or obstruct the ditch or the highway, nor did water reach this point so that a ditch was necessary, or if it ever flowed there it was because the overseer had turned it out of its proper channel and filled up a gravel-pit where the water formerly made its escape.

The jury, besides finding a general verdict for plaintiff, also found in answer to special questions, as matter of fact, that the ditch served to drain the highway at the time the defendant filled it up; that the object of the defendant in filling up the ditch was to obstruct it; that filling it up tended to prevent the public from passing and repassing; that the defendant filled it up without any authority, and not for the purpose of enabling him to draw out wheat from the adjoining lot; and that the digging of the ditch did not change, but did define, a water-course.

Errors are assigned upon the rulings of the court in refusing to charge as requested by the defendant's counsel. These requests were as follows:

"(5) Notwithstanding the public have at all times the right to repair the roads and bridges, and to keep them in reasonable repair, they are nevertheless bound to respect and observe the rights of the land-owners. And, in this case, if the jury find that the defendant was in the habit of passing out and in from the highway and into his field, and had been for a long time in the habit of so doing, and had used the same for his own road, and had maintained a gate there for that purpose, then in that event he would have a right to use and enjoy the same as long as it did not interfere with the public travel.

"(6) While the public have the right to do all and every act necessary to keep the roads in repair, it must be done in a reasonable manner, and the repairs must not injure the premises nor the rights of the land-owner. They both have rights; and while the commissioner of highways has a right to enter upon the defendant's lands, so far as is necessary to repair the roads, he would have no right to do anything that would permanently hinder the defendant from passing onto his fields. And if you find that the commissioner or overseer of highways dug, or caused to be dug, the ditch in question in front of the defendant's gateway, and then left the same open in such a way that he could not pass out and into his fields as he formerly had done, and as he was compelled to in order to draw his crops into his barn, then in that event the defendant would have a right to repair or fix the same so as to enable him to pass over with his team and vehicles, and this he could do in any way he might choose, so long as he did not in any way hinder the public travel or unreasonably injure the highway; and even if it did injure the highway, and, unavoidably, temporarily hindered the public travel, the land-owner has such an unqualified right to the soil that he might be justified in temporarily obstructing the highway for his individual benefit. The right of the overseer of highways to the use of the defendant's land, and to repair the roads and bridges in a reasonable manner, are the same rights and duties as are conferred upon the land-owner, so far as the use he makes of the same.

"(7) If the jury find from the evidence that the ditch in question diverted the water from its natural course, and caused it to flow where it could not and would not naturally flow, and in the digging of the same in front of the defendant's gateway, and leaving the same open, and thereby obstructing its passage-way out and into his field, it would be unauthorized, and would constitute an unlawful act on the part of the overseer of highways, and the defendant would have a right to fill it up as far as it would be necessary to pass out and in, so long as he did not in any way interfere with the public right of way."

"(11) If the jury should find from the evidence that the act of the defendant in filling up the ditch was to enable him to draw his wheat out of his field or into his barn, and that in doing so he used his customary road, then, in that event, he would have a perfect right to do so, so long as he did not unreasonably hinder the public travel, and it would not be willful obstruction within the meaning of the statute, and the plaintiff could not recover."

It will not be necessary to examine these requests in detail. A statement of the law governing the respective rights of the public authorities with reference to the highways and the adjoining land-owner will be sufficient to show that these...