Kreger v. Twp. of Bismarck

• Decision Date: 30 October 1894
• Citation: 59 Minn. 3,60 N.W. 675
• Parties: KREGER v. TOWNSHIP OF BISMARCK.
• Court: Minnesota Supreme Court

59 Minn. 3

60 N.W. 675

KREGER

v.TOWNSHIP OF BISMARCK.

Supreme Court of Minnesota.

Oct. 30, 1894.

(Syllabus by the Court.)

As a town is not liable for the illegal or unauthorized acts of its officers, though done colore officii, it is necessary to allege or show in a complaint, in an action brought against such town for damages caused by the acts of its officers, that such acts were within the scope of their power or authority.

Appeal from district court, Sibley county; Francis Cadwell, Judge.

Action by August Kreger against the township of Bismarck, Sibley county. Verdict for defendant. From an order refusing a new trial, plaintiff appeals. Affirmed.

Thos. Hessian and Geo. A. McKenzie, for appellant.

W. H. Leeman and Ed. H. Huebner, for respondent.

COLLINS, J.

It was not alleged or shown by the complaint in this action that the ditches in which plaintiff claims surface waters were 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 Gen. St. 1878, c. 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.