Fossett v. Bearce ( 1847 )

The opinion of the Court was drawn up by

TenNey J.

This is an action by the plaintiffs, as a fish committee of the town of Bristol, against the defendant, for an alleged resistance and opposition to them in the performance of their duties, in an attempt to open a sluice way through his dam for the passage of Alewives. The sluice way, which the defendant had previously prepared, was not good and sufficient. The plaintiffs introduced evidence of a notice to the defendant to make a passage way; and that on his failing to comply with the requirement, proceeded to prepare one themselves, and therein they were resisted and opposed by him.

The statute, under which this action is brought, provides that the town of Bristol shall choose a committee, not exceeding five nor less than three in number, whose duty it shall be to cause to be kept open in any river or stream passing through said town, at all places where dams are or may be erected, for the passage of Alewives, good and sufficient sluice ways for the passage of said fish through the same; and said sluice ways shall be under such regulations as the committee may deem proper for the interest and benefit of the town, subject to such restrictions and limitations as the town may by their votes impose. And the committee shall be sworn to the faithful discharge of the duties required of them by law. Special laws of 1826, <§» 1.

By the 7th section of the same statute, the committee shall in no respect be considered as trespassers, in passing over the lands of individuals, in any part of said town, in the execution of the duties of their office; and any person resisting or opposing said committee, or either of them, in the performance of their duties aforesaid, shall forfeit and pay a sum not less than ten dollars, nor more than twenty dollars.

The committee are entrusted by the act with a duty, which they are not at liberty to omit. The passage ways, which they are to cause to be opened, are to be good and sufficient, for the purpose intended. The whole subject is intrusted to their judgment and discretion, excepting where the town by a corporate vote restrict or limit their exercise. It is for them to determine, whether the sluice ways are good and sufficient. The statute does not contemplate that the question of their goodness and sufficiency shall be settled by any other. So long as they are acting within the sphere of their duty as a committee, or members thereof, they are protected from all liability as trespassers, in passing over the lands of individuals. No one has any right to oppose them in the performance of their duties. The judgment of others, in reference to what is intrusted to them, is not to be substituted for that of the committee. Although it may be thought they may have erred in the exercise of their judgment and have acted indiscreetly in the discharge of their trust, it does not follow, therefore, that their acts are to be treated as trespasses or unauthorized, unless they are guilty of corruption, or palpably mistake their duties. If the jury were satisfied, that the opinion of the committee was erroneous, and their proceedings unreasonably hard against the defendant in attempting to open the passage way, such alone was not sufficient to exclude them from protection of the statute, under which they professed to act, and excuse the defendant in resisting them. The case not having been submitted to the jury according to this principle, the

Exceptions are sustained.