Nelson v. Babcock
| Decision Date | 13 April 1933 |
| Docket Number | 29,354 |
| Parties | NICK NELSON v. CHARLES M. BABCOCK |
| Court | Minnesota Supreme Court |
Action in the district court for Lake county to recover damages of defendant as commissioner of highways for alleged trespass in depositing large quantitles of rock on lands belonging to plaintiff outside the right of way of a state trunk highway maintained by defendant. The case was tried before Martin Hughes, Judge, and a jury. Plaintiff recovered a verdict of $3,000, and defendant appealed from the judgment entered pursuant thereto. Affirmed.
Highway -- construction -- liability of highway commissioner for damages.
1. Where the commissioner of highways, in improving a trunk highway, trespasses upon or appropriates land outside the right of way, he becomes liable to the owner thereof for the damage thereto. The evidence justified the jury in finding that defendant wrongfully invaded and damaged plaintiff's land.
Highway -- construction -- liability of highway commissioner for damages.
2. While a public officer is not responsible for the torts of his subordinates or employes, the jury was warranted in finding that this defendant cooperated in the trespass.
Appeal and error -- brief -- necessity of specifying errors.
3. Instructions assigned as erroneous will not be considered where the brief makes no effort to point out any error therein and no prejudicial error is obvious on mere inspection.
Highway -- construction -- verdict for damages not excessive.
4. The verdict cannot be held excessive by this court.
A brief was filed on behalf of appellant by Henry N. Benson, former Attorney General, Harrison B. Sherwood, former Assistant Attorney General, and Victor J. Michaelson.
Upon hearing of the case there was an appearance and argument on behalf of appellant by Harry H. Peterson, Attorney General and John E. Katzmarek, Assistant Attorney General.
Jenswold Jenswold & Dahle, for respondent.
Defendant appeals from the judgment awarding plaintiff damages. Before the judgment was entered defendant's motion in the alternative for judgment notwithstanding the verdict or a new trial had been denied. So all questions raised by said motion, and to which assignments of error in this court are directed, are for decision on this appeal.
The main contention is that defendant is not responsible for any damages plaintiff may have sustained. This was raised by defendant's objection to the introduction of any evidence on the ground that the complaint failed to state a cause of action, by his motion for a directed verdict, and by his motion for judgment notwithstanding the verdict. The argument is based on the proposition that the commissioner of highways is not personally liable for the consequences of his official acts done within the scope of his authority. The proposition is legally correct. But the facts pleaded and proved placed defendant's acts outside the scope of his authority, according to the findings of the jury.
It is conceded, or established, without dispute, that Lake county undertook to lay out and construct through its territory a road running along the shore of Lake Superior from Two Harbors toward Grand Marais, pursuant to an understanding with the state highway department that such road when built would become a part of trunk highway No. 1. Plans for the road were submitted to the department, and it made duplicate blue print copies thereof for the sue of the county and its contractors in the construction of the road; and soon after its completion defendant designated it as trunk highway No. 1 and assumed its maintenance. At one place, where it goes through plaintiff's land, a rock cliff rises almost perpendicularly over 100 feet above Lake Superior, the base of the cliff being only 30 or 35 feet from the water. The right of way acquired was 100 feet wide. It was therefore necessary to blast away a large part of this cliff to make the roadway of proper width. After completion of the road it was found that rocks, loosened from the sheer cliff wall by the elements, fell onto the roadway, endangering travel. In the summer of 1930 defendant, or the state highway department, for the purpose of making the road safe, undertook to blast away a large portion of the cliff wall. The work was not done by contractors, but by the highway department under the supervision of Mr. Mold, a district maintenance superintendent. It does not appear how extensive the blasting or sloping off of the cliff wall was intended to be when the work started. But apparently the slope went beyond the boundary of the right of way, for plaintiff sought an injunction against defendant. It does not appear whether the ground for injunction was because of the nuisance and damage done by the blasting or because the blasting was on plaintiff's land beyond the northwesterly boundary of the right of way. We may assume that it was based in part on the latter ground; for when the injunction issued defendant started proceedings to acquire by condemnation 100 to 150 feet of plaintiff's land along and adjacent to the northwesterly line of the right of way so that a proper and safe slope could be made in the high cliff wall. Under the statute, L. 1927, p. 339, c. 237, § 1(e), 2 Mason, 1927, § 6557-1, the starting of the condemnation immediately gave defendant the right to take possession of the additional land and proceed with the work, widening the right of way and constructing the proper slope. So far there is no material dispute. Upon disputed testimony the jury could find that a large part of the slope excavated or blasted out of the rock cliff on the northwesterly side of the right of way was designedly and wilfully dumped or moved onto plaintiff's land beyond the southeasterly boundary line of the right of way, so that the fill extended out into the lake, deflecting the currents therein which theretofore had cast valuable gravel deposits upon plaintiff's shore.
When defendant deposited the rock on that part of plaintiff's land not acquired nor intended to be acquired by him for the state, he clearly departed from the scope of his authority. Since defendant, and none other, could condemn this additional right of way needed to make a proper or safe highway, he of course must be charged with knowledge of the purpose to move a great quantity of rock and the need of a place whereon to place it. There is no pretense that it could have been disposed of upon the right of way. We think the jury could find defendant sufficiently connected with the whole enterprise of depositing this large volume of rock removed from the rock cliff onto plaintiff's land so as to make him answerable therefor. He alone could decide upon and acquire this additional right of way, and necessarily must plan whereto the large quantity of rock to be removed therefrom should be deposited. From a legal view it should make no difference whether the rock was deliberately and intentionally dumped on plaintiff's land or whether it was thrown thereon by dynamite blasts. Upon the virtually undisputed facts stated and those the jury by the verdict accepted as true, should defendant escape liability? We think not.
By statute, L. 1921, p. 406, c. 323, § 13(1), L. 1925, p. 430, c. 341, 1 Mason, 1927, § 2554(1), the commissioner of highways is given extensive and exclusive powers in respect to the acquisition by gift, purchase, or condemnation of all land needed for the construction and maintenance of trunk highways. He appoints two assistants, one of whom shall be an experienced highway engineer, and he also appoints such other assistants and employes as he deems needful from time to time. The legislature anticipated that the commissioner, in the stupendous work to be carried on by himself and subordinates, might go beyond the scope of his authority to the injury of private property, for he is required to give a bond in the sum of $25,000 (premium paid out of the highway fund) conditioned for the faithful performance of his duties, upon which bond "any person damaged by any wrongful act or omission of said commissioner of highways in the performance of his official duties may maintain an action" for the recovery of damages so sustained. The statute calls for a similar bond from each of the two assistants in the sum of $10,000; but other assistants or other employes give no bonds unless required by the commissioner. G.S. 1923 (1 Mason, 1927) § 2553. These statutes bestow great powers on the commissioner, but also take precaution that they be exercised within the scope of his authority. Above all, the constitution forbids the taking, damaging, or destroying of private property for public use without compensation first paid or secured. Art. 1, § 13. When there is a clear violation of the constitutional right of property of a private person, a remedy therefor is also assured to him by the constitution. Art. 1, § 8.
In the construction and maintenance of a trunk highway, lawfully established or taken over by the commissioner, he is not liable to those injured by defects in the highway due to his negligence or the negligence of his subordinates or employes nor is he liable for consequential damages to adjacent landowners due to faulty or negligent plans of construction. It was so held in Wilbrecht v. Babcock, 179 Minn. 263, 228 N.W. 916. Defendant relies thereon. But that case came here on demurrer, and the complaint went no further than to predicate the cause of action upon the fact that the commissioner in constructing a state highway across a level country had raised the roadway slightly above the surface and constructed ditches upon the right of way, so that the surface water flowed upon the plaintiff's land, causing...
To continue reading
Request your trial