Blonquist v. Summit County , 25 Utah 2d 387 ( 1971 )

ELLETT, Justice:

. Plaintiffs filed a complaint, alleging two causes of action, the first against Summit County, a body politic, and the second against the five named defendants individually, who are the three commissioners, the county sheriff and the county road supervisor. The defendants involved in the second cause of action moved for summary judgment, which the trial court granted on the ground that a public offiicer engaged in the performance of his duties cannot be held personally liable for the mistake or errors of judgment absent a showing of malice, fraud, or corruption. Plaintiffs appealed, claiming that for 32 years past they have owned certain real property over which a private road exists and that for many years past they have maintained a locked gate across the road to prevent unauthorized persons from crossing their land.

The defendant county commissioners by resolution determined that the road should be opened to the public. The plaintiffs sent a letter of protest to the county, wherein they apprised the commissioners of their claim. The commissioners called a public hearing for the purpose of discussing the road and to determine if the county should continue to maintain it. The plaintiffs and their attorney attended the meeting. Several residents of the county were present and informed the commissioners that they personally had used the road in question for a period of time in excess of ten years.¹

Acting upon the advice of the county attorney, the commissioners directed the sheriff and road supervisor to remove the gate and to install a cattle guard across the road.

This action was begun to recover for a claimed trespass.

There are two questions involved in this appeal, viz.: 1. Are there any disputes as to material issues of fact? 2. Are the defendants entitled to prevail as a matter of law?

There is a dispute as to whether the road was public or private. However, under the holding of the trial court it was immaterial whether it was the one or the other. The court believed that officers acting in line of duty were immune from suit. If this were a case involving officers acting in line of duty under a writ fair on its face issued by a court having jurisdiction, the belief would be well founded. However, officers are not protected when they tear down fences not in a public way. The law is stated in 40 C.J.S. Highways § 225 as follows:

Highway officers or other public authorities whose duty it is to keep highways in repair and free from obstructions have authority under their general powers or by express statutory provisions summarily to remove obstructions, notwithstanding the statute gives a remedy by action for a penalty. However, such authority does not exist where the road is not open and legal, or where the obstruction is not a nuisance.

An obstruction in a private road is not a nuisance, and as stated in 39 Am.Jur. 2d, Highways, Streets, and Bridges, § 327:

* * * (A) municipality or other public agency cannot by its mere declaration that a structure is a nuisance subject it to removal, * * * In abating alleged nuisances public officers act at their peril and will be liable in damages if the alleged nuisance is not one in fact.

A case similar to the instant matter is that of Kelsey v. Burgess, 58 Hun 608, 12 N.Y.S. 169 (1890), where the defendant acting under the orders of the commissioners of highways removed a fence erected across the road by the plaintiff. The defendant proved a certificate or order of the commissioners ascertaining and describing the road as a highway. The trial court dismissed the complaint, but on appeal the court reversed, saying:

* * * The certificate did not, therefore, furnish of itself any defense for the trespass. * * * The court refused the plaintiff the right to prove that the same had not been used as a highway, and was not a public highway, either by use or dedication. If the certificate had adjudicated the road to have been used for 20 years, it was not conclusive. The land-owner had the right to have the fact passed upon by a jury.

Likewise in Labo v. Asam, 143 Mich. 24, 106 N.W. 281 (1906), Asam, the commissioner of highways, and others tore down Labo’s fence, which they claimed to have done in the performance of their official duty. Asam’s predecessor, as highway commissioner, claiming the fence obstructed a highway, made an order that it be removed and gave Labo notice to remove it. Labo ignored the order, and Asam thereafter did his duty as he saw it. Labo then brought an action of trespass. The defendants put the order of removal in evidence, and the trial court ruled for Labo. The Supreme Court affirmed, saying, “The order is not of itself proof of the facts stated in it, and, in the absence of such proof, furnishes no justification.”

Another case is Danielson v. Kyllonen, 111 Minn. 47, 126 N.W. 404 (1910). There, appellant had constructed a fence on his own land. The respondent, as assistant road inspector, claimed that the fence was in the highway and directed the appellant to remove it. Upon appellant’s refusal to do so, respondent acting on behalf of the public took the fence down. The appellant then brought an action of trespass. At the close of appellant’s case the trial court dismissed the action. The Supreme Court reversed, and in doing so said:

Although appellant failed to prove the exact location of his fence with respect to the section line, and to the road as traveled, the evidence fairly shows that the fence was located upon appellant’s land, and a prima facie case was made out. It was admitted by respondent, in his answer, that he took down and removed the fence; and he justified his conduct upon the ground that the fence was within the limits of a public highway and that he was acting as a public official. In our opinion, the burden was upon respondent to prove what he alleged, and, having failed to do so, it was error for the trial court to dismiss the action at the close of appellant’s case.

A case involving the protection afforded to public officers is Miller v. Horton, 152 Mass. 540, 26 N.E. 100. In an opinion written by Justice Holmes, the court held that under a law authorizing summary destruction of animals having farcy or glanders, with no provision for compensation to owner, an order of commissioners on contagious diseases of domestic animals, certifying that a certain horse examined on that date was adjudged to have a contagious disease known as glanders and directing that he be killed, was not a protection to the officers executing the order in a subsequent action by the owner against them, where it appeared the animal was not in fact infected with the disease.

The case of Garff v. Smith, 31 Utah 102, 86 P. 772 (1906), is not to the contrary. There the defendant was a sheep inspector who quarantined plaintiff’s sheep because they were afflicted with an infectious disease. The place where the sheep were quarantined contained a shrub called greasewood, and as a result of eating it and thereafter drinking water, some of the plaintiff’s sheep died. The action was for negligence and not trespass. This court held that the selection of the place of quarantine was a matter of quasi-judicial determination and not a ministerial act. Had defendant acted in a ministerial instead of a quasi-judicial capacity, he would not have been protected. That case involved a situation where the sheep were infected.

The destruction of the gate in the case now before us involved a ministerial function only. The determination of the status of the road was for the court and not for the county commissioners. Their order that the road was public had no validity, and, the plaintiffs had a right to submit that question to a jury for determination.²

There is one other matter which requires our attention.

Section 27-12-135, Utah Code Annotated 1953 (Replacement Vol. 3), provides that if any person places an obstruction in a county road, the authorities may (1) remove it or require the person to remove it; (2) give written notice to the person to remove it within ten days, and if he does not remove it, then they themselves may do so and collect costs and penalties from that person; or (3) if such person denies the existence of the obstruction or refuses to remove it or to permit it to be removed, bring an action to abate the nuisance.

It will be observed that these remedies are permissive, and neither one is conclusive of the others. In fact, there existed at common law a right to summarily remove obstructions from a highway.³ Statutes such as ours do not restrict the common law right but afford cumulative remedies.⁴

In the instant matter the county authorities could have summarily removed the gate if the road was a public one. The fact that they gave notice to the owners does not make a summary removal unlawful if, in fact, the road is public.

There are unresolved issues of fact to be determined in this matter, and a summary judgment cannot be had at this time. The judgment is reversed and the matter remanded for such further proceedings as may be necessary. No costs are awarded.

CALLISTER, C. J., and TUCKETT, J., concur. HENRIOD, J., does not participate herein.

1 . Section 27-12-89, U.C.A.1953 (Replacement Vol. 3), provides : “A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.”

2 . New York & L. B. R. Co. v. South Amboy, 57 N.J.L. 252, 30 A. 628, 632 (1894).

3 . 1 Blackstone 358.

4 . 39 Am.Jur.2d, Highways, Streets, and Bridges, § 327.