Hicks v. . Dorn , 9 Abb. Pr. 47 ( 1870 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It was the duty of the defendant, as superintendent of canal repairs, to keep in repair the section of the canal intrusted to him, and to remove obstructions to navigation; and he claims protection, in this case, on the ground that he was in the proper discharge of this duty when he cut up the plaintiff's boat. He bases his claim to protection upon several grounds, which I will proceed to notice.

1st. He claims this case comes within the section of the Revised Statutes (1 R.S., 221, § 23, Edm's ed.) which provides that "whenever the navigation of any of the canals shall be interrupted or endangered, it shall be the duty of the commissioners, without delay, to repair the injury causing or threatening such interruption; and for that purpose they shall have power, by themselves or their agents, to enter upon and use any contiguous lands, and to procure therefrom all such materials as in their judgment may be necessary or proper to be used in making such repairs." This section confers an authority to be exercised by the canal commissioners. It is their judgment that is to determine the necessity or propriety of entering upon the adjoining lands for the purpose indicated. It confers no authority whatever upon superintendents. They may undoubtedly act, but it must be under the special direction and authority of the commissioner in charge, whose judgment is to determine the necessity. Here it is not claimed that the defendant had any direction whatever from the canal commissioner to take and cut up this boat. (Lyon v. Jerome, 26 Wend., 489.) But in this case, if the canal commissioner himself had done the act complained of, instead of the superintendent, he could not have found protection under this statute, as the act does not come within its terms. It is difficult to perceive how it can well be claimed that a statute which confers authority upon canal commissioners to enter upon adjoining lands and take material to repair the canal, justifies the destruction of property which happens to be in the canal. It would not be claimed that, under this statute, the canal commissioners could take a loaded boat and appropriate her and her cargo to stop or repair a break in the banks of the canal. It is clear, therefore, that this statute furnishes no protection to the defendant.

2. It is claimed that the canal is, in law, a public highway, and that this boat was a public nuisance in such highway, interrupting navigation, which any person, and certainly a public officer, had a right to remove. It is not alleged in the answer, and it was not found by the referee, that it was a nuisance. Navigation was interrupted by the want of water, caused by the break; not so much by the boat. This boat was not in the canal in such a way as to interfere with the passage of boats. But there should have been an issue and finding upon this point. If the referee had found that this boat was a nuisance, the defendant would not necessarily have been justified in destroying it. In removing or abating nuisances, no unnecessary damage or injury to property can be justified, and the referee might have found still, as he has found, that the defendant should have adopted some other method to restore navigation than the destruction of the boat.

3. It is claimed that the defendant, in determining to remove this boat, and in the removal of it, had a judicial discretion to exercise; and hence, that he is not liable, in a civil action, for the manner in which he exercised this discretion. I am unable to see in what sense the defendant, as to this transaction, acted judicially. The law made it his duty to put this canal in repair (1 R.S., 236, § 100, Edm's ed.), and it was not left to his discretion to determine whether he would discharge that duty or not. The law made it an imperative duty, and if he had neglected to perform it, he would have been liable civilly for damages sustained by any person from his neglect of duty. (Adsit v. Brady, 4 Hill, 630; Shepherd v.Lincoln, 17 Wend., 249; Robinson v. Chamberlain,34 N.Y., 397; Fulton Fire Ins. Co. v. Baldwin, 37 N.Y., 648.) In the discharge of this duty, thus imperatively imposed upon him by law, he acted ministerially. It is true that he was bound to exercise his discretion as to the methods and instrumentalities to be employed, and this is true of all ministerial officers; and yet it has never been held that, merely because ministerial officers have a discretion to exercise, that gives them the immunity of judicial officers. In this case, then, the defendant was bound to discharge his ministerial duties in a prudent, careful manner, without infringing upon the rights of private individuals or unnecessarily injuring them, and for an improper discharge of his duty the law makes him liable to the individual injured. (Rochester White Lead Co. v. The City of Rochester,3 N.Y., 463; Robertson v. Chamberlain, 34 N.Y., 389; Barton v. The City of Syracuse, 36 N.Y., 541.)

The plaintiff's boat was valuable private property. The plaintiff was in no degree in fault, and he did not in any way contribute to the break that caused the interruption of navigation. The duty of the defendant was imperative to repair the canal, and though the plaintiff's boat was private property, he had the right to destroy it, if such destruction was necessary to enable him to restore navigation. This right did not arise simply because it was more convenient to repair the canal by destroying the boat, nor because this was the cheapest or speediest way to do it. The destruction of this private property should have been a last resort, after other reasonable expedients had failed. When a public officer undertakes to destroy private property under the claim of great public or overruling necessity, he takes upon himself the burden of showing such necessity. (Russell v. The Mayor, c., of New York, 2 Denio, 475.) All that can be claimed in this action is, that it was more convenient and speedier to repair in the way adopted than in any other. This does not make a case of overwhelming or pressing necessity within the rule. All the facts were before the referee, and it was for him, upon the evidence, to determine whether the defendant discharged his duty as a reasonable, prudent and careful man; whether the defendant was justified in pursuing extraordinary rather than ordinary methods, and whether there was a pressing necessity for the destruction of the private property in question, and we ought not to disturb his decision upon these questions.

I therefore favor an affirmance of the judgment appealed from.

EARL, Ch. J., FOSTER, SMITH, GROVER and SUTHERLAND, JJ., for affirmance.

LOTT, J., read an opinion for reversal. HUNT, J., was also for reversal. INGALLS, J., did not sit.

Judgment affirmed.