Denniston v. Clark

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation125 Mass. 216
PartiesEdward E. Denniston v. James W. Clark
Decision Date03 August 1878

Argued September 18, 1877; November 4, 1876

Hampshire. Tort for breaking and entering the plaintiff's close, and carrying away therefrom one thousand loads of earth and stone. Writ dated September 2, 1874. Answer: 1. A general denial. 2. That the acts complained of were done by the defendant as highway surveyor in repair of the highways within his jurisdiction. Trial in the Superior Court before Putnam, J., who allowed a bill of exceptions in substance as follows:

The evidence tended to show that the plaintiff owned land on Prospect Hill, on the northerly side of Prospect Street, in Northampton; that against this land the highway descended the hill on a sharp grade; that in 1869 the county commissioners ordered that this highway be straightened and regarded for a distance of between one and two miles; that, after the road was so constructed and finished, it was accepted by the commissioners; that the excavations and repairs left high banks on each side of the highway near the brow of the hill in some places as high as ten feet on the plaintiff's side of the highway; that the material removed was composed of hardpan and gravel, well suited to the hardening of the road-bed of highways; that much the larger portion of the earth removed in constructing the highway, as ordered by the county commissioners, was used in raising the road-bed at the bottom of the hill against the lands of other owners abutting on said highway; and considerable more was used in hardening other parts of the same road, and some of it was used upon Spring Street, a half a mile or more away from the plaintiff's land.

There was also evidence tending to show that, after the road was so constructed, the high bank on the plaintiff's side of the road, which was composed of boulders, cobble-stones, gravel and a kind of earth easily affected by frost, as the frost came out in the spring, would slough off in such quantities as to fill up the ditch along the roadside, and, in heavy rain and melting snows, would cause the water to overflow the road-bed.

The defendant testified that at the time of the alleged tort he was repairing the highway in front of the plaintiff's estate by cleaning out the gutter, which had become filled up by slides of earth from the bank, and by giving such increased width to the gutter and such slope to the bank all along down the hill as would more effectually prevent the filling up of the gutter and the consequent overflow and wash of the road-bed; that he removed the surface material derived from the cutting down of the bank to repair Elm Street and South Street, points remote from the plaintiff's land but within the limits of his jurisdiction as surveyor; that in his judgment the repairs made by him were required for the well being and best security of the road; that he made them in good faith, and that the material removed was needed at the places where used.

The plaintiff offered evidence tending to show that the defendant was not at this time making repairs on the highway in front of the plaintiff's land, but that he was there for the purpose of obtaining earth and gravel from the embankment against the plaintiff's land to use on other highways remote from Prospect Street. The defendant objected to this evidence; but the judge admitted it.

The defendant asked the judge to instruct the jury that, even though he was not making repairs on the highway in front of the plaintiff's premises, he had the right to take such material from the embankment in question, within the limits of the high way, as he had occasion to use in repairing other highways within his jurisdiction.

The judge declined to give this instruction; but instructed the jury "that, after the original construction of the highway, as above referred to, and its acceptance by the commissioners in 1869, the town had no right to remove the soil in front of the plaintiff's premises, unless it became necessary, in the judgment of the highway surveyor, to do it for the purpose of keeping the highway in repair, and making it safe and convenient for public travel at that place; that if the defendant, in the exercise of his duty as surveyor, cut down this embankment for the purpose of repairing the road, and making it thus safe and convenient, he had the right so to do, and the right to carry away the soil which it became reasonably necessary so to remove, and to use it for the purpose of repairs upon such other of the highways belonging to the town within his precinct as needed such repairs; but that, if he was not bona fide repairing the way at this point, he had no right to take the soil merely for the purpose of making or repairing other highways; that if he was at work for the purpose for which he testified, he was repairing the highway, and his judgment was conclusive as to the time and manner of doing it, and he was not to be held responsible for any errors of judgment; but that it was for the jury to say whether such was his purpose, that his saying that such was his purpose was not conclusive upon the jury, but they had the right to say, upon all the evidence in the case, whether such was his purpose and judgment."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which were argued in 1876.

Exceptions sustained.

C. Delano, for the defendant.

D. W. Bond & H. H. Bond, for the plaintiff.

Lord, J., Gray, C. J. Colt & Morton, JJ., Endicott & Lord, JJ., absent.


Lord, Gray

Lord, J. We think the case of Benjamin v. Wheeler, 8 Gray 409, decisive of this. The ruling of the presiding judge was accurate, with the exception that he permitted the jury to pass upon the question of the good faith of the surveyor in his mode of making repairs. There seemed to be no controversy at the trial upon the question whether the defendant was a surveyor of highways; nor whether he was engaged in making repairs. And the instructions to the jury were based upon these facts; that the defendant was a surveyor of highways, and was in the execution of his official duty. Under such circumstances, neither his judgment nor his good faith can be revised by a jury. The question whether he was acting within the scope of his authority cannot be made to depend upon his state of mind.

If the presiding judge meant by his instruction to rule that an excavation in the bank could only be made for the purpose of repairing at the point where the excavation was made, the ruling is equally erroneous. When a highway is located and constructed, the entire land within its limits is appropriated to the public use, and the owner is entitled to compensation therefor in the mode provided by law. Gen. Sts. c. 43, §§ 14, 62. If, after such land is condemned to the public servitude, the owner of adjoining land sustains damage by reason of any act done for the purpose of repairing said highway, he is entitled to compensation in the mode provided by the statute. Gen. Sts. c. 44, § 19.

The case does not show, nor was there any offer to prove, that the acts done by the defendant were not within the scope of his authority as surveyor of highways; but the presiding judge allowed the jury to find that the acts done, although done while acting within the scope of his authority, were legal if done bona fide, but not legal if not done bona fide, thus making the legality of his acts depend, not upon his right to do the things done, but upon his good faith. The only questions which should have been submitted to the jury were, First, Was the defendant surveyor of highways in the town of Northampton? and, Second, Were the acts done, done by him as surveyor of highways and thus within the scope of his authority, and this irrespective of his motives or good faith? If so, the defendant cannot be held to answer to an action of tort for an injury sustained by the plaintiff, but he must seek his remedy under the statute.

It is possible that the presiding judge, in using the words bona fide, meant only "really" or "in point of fact." So that the construction of his ruling would be, if the defendant was not really or in point of fact repairing the way at this point, he had no right to take the soil merely for the purpose of making or repairing other highways. If such be the meaning intended, the language is inappropriate; and without deciding that, as an abstract proposition, it would be erroneous, yet it would be inapplicable to this case. It is not the province of a surveyor of highways to make ways, but to repair existing ways; nor was this defendant engaged in making a way; and what would be "other highways," in contradistinction to "this point," in a way recently relocated for a distance of between one and two miles, is not defined; and the entire instruction would leave upon the minds of the jury the conviction that they could revise the motives and good faith of the surveyor, which, under the authority of the case cited, cannot be done. See also Morrison v. Howe, 120 Mass. 565.

The language of the court in Callender v. Marsh, 1 Pick. 418, 435, is applicable to the facts of this case. "In no case can a person be liable to an action as for tort, for an act which he is authorized by law to do." If the petitioner suffered any injury by the acts of the surveyor in repairing the highway, he is entitled to compensation under the Gen. Sts. c. 44, § 19, but not in an action of tort. See Burr v. Leicester, 121 Mass. 241.

Exceptions sustained.

Upon a second trial in the Superior Court, before Allen J., the evidence was substantially the same as at the first trial and it was conceded that the defendant was a highway surveyor, and that Prospect Hill, from which he took the...

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