Hicks v. Dorn — 9 Abb. Pr. 47

Majority

p. 47

HICKS against DORN.

Court of Appeals,

March Term, 1870.

Headnote

Abatement of Nuisance.—Destruction of Private Property?—Judicial Discretion.— Cause of Action.

The .provision of 1 Meo. Stab, 321, § 23,—as to the duty of the canal ■ commissioners to repair injury to the canals,—furnishes no protection to a superintendent of canal repairs, who, for the purpose of restoring navigation of the canal, cuts up a canal boat lying between the gates of a lock so they cannot be closed.

A canal boat, in such a position, is not a nuisance in such a sense that the superintendent is justified in destroying it, if he can, by adopting some other method, restore navigation.

He has no right to destroy the boat simply because it is more convenient to thus repair the breach, nor because such a destruction is the cheapest or the speediest way to do it.

To justify the destruction of private property, the case must be one of overruling or pressing necessity. Such destruction should be a last

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resort,, after all other reasonable expedients fail; and he who destroys private property under a claim of such necessity, takes upon himself the burthen of showing it.

Where several methods of restoring navigation are open to the superintendent, he does not, in deciding to cut up the boat, exercise a judicial discretion which protects him from liability in a civil action, for its destruction.

in making repairs, the superintendent acts ministerially, and is bound to discharge his duties in a prudent and careful manner, without infringing upon the rights of other persons, or unnecessarily injuring them.

The fact that a ministerial officer has a discretion in regard to the mode of discharging a duty imperatively imposed on him by law, does not entitle him to the immunity of a judicial officer.^[1]

If he improperly discharge such duties, he is liable to a person injured thereby.

Appeal from a judgment.

This action was brought by Cornelius D. Hicks, plaintiff and respondent, against Robert C. Dorn, superintendent of canal repairs, defendant and appellant. A judgment was rendered in favor of plaintiff, on the report of Isaac Edwards, referee.

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The referee found that on May 19, 1865, the defendant was superintendent of canal repairs, in charge of section 2 of the Erie canal, including the portions thereof hereafter mentioned, under instructions from the canal commissioners to act promptly whenever a break occurred, and restore the canal to a navigable condition as speedily as practicable, at all hazards.

At Yicher’s Ferry the canal runs nearly east and west. On the northerly side of the canal was a basin, forming part of the canal itself, covering about half an acre. At the northerly point of the basin were two lock gates, belonging to the State, separating the basin of the canal from a dry dock, covering about a quarter of an acre, the private property of one Alexander Sherman, into which boats were taken from the canal for repairs. These lock gates opened southerly into the canal. On the westerly side of Sherman’s dry dock he had a waste-wier for letting off surplus water.

A short distance west of the dry dock was a culvert,, under the canal, the property of the State, through which, from the north, a creek, called Stony creek, ran into the Mohawk river southerly of the canal.

The lock gates owned by the State were used as a* waste-wier to let off the water from the canal, which . passed into the dry dock, and out of that, through the gates thereof belonging to its owner, into a ravine,, through which it ran into Stony creek, above the culvert. The creek was of considerable. size, and, above the culvert, fell rapidly. The State kept no one in charge of the lock gates, but they were opened by Sherman, and those in his employ, to let boats, from the basin into the dry dock, they immediately thereafter closing them again.

On May 18, there was a severe spring rain, which raised the water in the river, creek, and canal, creating a freshet, filling the canal so that the water ran over its

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banks. This was the condition of the river, the creek, and the canal, on May 19.

Two or three days previous to the 19th, the plaintiff’s canal boat, The “ Gf. W. Ganung,” had been thus run from the canal into this dry dock for repairs.

On May 19, the canal was in a navigable condition the whole length thereof, and a large number of boats were navigating it. On that day, when the canal, the creek, and the river were in such a swollen condition, the canal lock gates were opened by Shermen’s men in charge of the dry dock, and the 'captain and crew of plaintiff’s boat commenced running her, stern foremost, into the canal. When she was nearly half way through the gates, the waste-weir and gates of SJieruna/ri s dry dock suddenly gave way, creating a large breach in the bank thereof, in consequence of which the water ran rapidly out of the dry dock, and of that —a three mile—level of the canal. This left the boat between the open gates of the canal, resting upon the miter sill. She was about ninety-five feet long; about forty-five feet lay in the basin of the canal, and the remainder in the dry dock.

The lock gates of the canal could not be closed, and. navigation thus resumed, until the boat was removed.

The defendant was notified of the break, and arrived on the ground about nine o’clock in the morning. He examined and deliberated upon the situation, and upon the several modes of restoring the navigation of the canal. Four methods were possible:

1. To dam up the culvert under the canal so as to raise the water above it high enough to set it back up the ravine into the dry dock and level of the canal deep enough to float the boat. This would have been only an experiment, and, if successful, would have been fraught with danger to the canal,

2. By repairing the banks of Sherman’s dry dock which might have been done in two days, so as to have

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permitted sufficient water to have been let into the canal and dry dock to float the'boat out of the gates, so they could be closed and navigation resumed.

3. By building a coffer dam, in the’ basin of the canal, around the stern of the boat, which could have been done in two or three days, at a cost of nine hundred dollars, and two hundred and fifty to three hundred dollars for removal.

4. By cutting out of plaintiff’s boat a piece thereof of sufficient length to enable him to close the gates between the canal and the dry dock and let the water into the level, which could be done in about twelve hours.

This involved the destruction of property, the value of which did not much exceed the expense of restoring navigation in either of the other ways.

The defendant fairly, honestly, and in good faith, exercised his judgment and discretion in the premises, and in good faith decided and determined that the best-method of restoring navigation was to cut out of plaintiff’s boat a piece large enough to enable him to close the gates of the lock. He ordered it done, and it was done without any want of care in the act of severing the boat; the pieces cnt out being just long enough to allow the gates to be closed. The injury done to the boat was no greater than the act necessarily involved. Every day’s delay in restoring navigation caused great damage to the State, and to persons navigating the canal.

The referee further finds that plaintiff’s boat grounded in the gates of the lock without any fault or negligence on the part of the plaintiff or his servants or agents ; that he was not notified to remove the boat, and no time or opportunity was given him to do so. Also, that no evidence was given on the trial that at or prior to the time defendant commenced cutting up the boat, the plaintiff or his servants or agents had com

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menced removing it from between the lock gatea, or had taken any steps to do so, or that, when defendant commenced removing it, they designed to or would do so.

The defendant, at the close of plaintiff’s testimony, moved for a nonsuit, and again at the close of the evidence. The motions were denied, defendant each time excepting. The referee assessed plaintiff’s damages at fifteen hundred dollars, and interest from the time of cutting up the boat. As a conclusion of law, he held defendant liable ; to which he excepted, and, on the entry of judgment, appealed 'therefrom to the general term, where the judgment was affirmed (54. Barb., 172; S. ' C., 1 Bans., 81), and he appealed to this court.

N. C. Moak, for the defendant, appellant.

Isaac Lawson, for the plaintiff, respondent.

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 claims to protection upon several grounds, which I will proceed to notice.

First. He claims that this case comes within the section of the Revised Statutes (1 Rev. Stat. 221, § 23, Edm. ed.) which provides that u 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

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procure therefrom all such materials as in their judg-' ment 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 adjoiniifg 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.

Second. 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

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passage of boats. But there should have been an issue and finding upon this point. If the referee had found that 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.

Third. 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 Rev. Stat., 236, §100, Edm. 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., 389 , 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 injur

Dissent

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ing them, and for an improper discharge of his duty, the law makes him liable to the individual injured (Rochester White Lead Co. v. City of Rochester, 3 N. Y., 463 ; Robinson v. Chamberlain, 34 N. Y., 389 ; Barton v. City of Syracuse, 36 N. Y., 54 ).

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 and 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. Mayor, &c. of New York, 2 Den., 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 decisions upon these questions.

I therefore favor an affirmance of the judgment appealed from.

The defendant, in May, 1865, finding the navigation of the Erie canal to be obstructed by a canal boat of the plaintiff, caused it to be removed. He was then a superintendent of repairs in charge of the part of the canal where the obstruction occurred, and his duty and authority to direct its removal, as well as the necessity and propriety of exercising it, are admitted. Before giving the direction, he examined into the facts, and as the referee, who tried the issues, finds, fairly, honestly, and in good faith, exercised his judgment and discretion in the premises, and in good faith decided and determined that the best mode of restoring the navigation was that adopted by him, and under which the boat was removed. In making the removal, the boat was damaged to the amount of fifteen hundred dollars; but the damage was the result or consequence of executing the plan adopted to effect the removal, and not of any unskillfulness, neglect or fault in the manner of its execution, and the injury was no greater than the act necessarily involved. The referee also finds that the practicability of the three other plans was considered by the defendant; one of them would have been only an experiment, and, if successful, would have been fraught with damage to the banks of the canal; that either of the other two would have continued the interruption to the navigation for at least one and a half days longer than the one adopted, and would have involved an expenditure to the State not much less than the damage to the plaintiff’s boat, and a portion thereof would in one case be expended on property not owned by the State; that a large number of boats was then navigating the canal,-and that every day’s delay in restoring the navigation caused considerable damage to the State and to individuals navigating the same; and that the defendant’s instructions from the canal commissioners were to act promptly whenever a break

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occurred, and to restore the navigation as speedily as possible at all hazards.

It will be seen from this statement that the defendant acted as a public officer in the discharge of his duty to keep the canal in a navigable condition, and that the means used by him in this case, restored the navigation more speedily than could have been done by any other practicable mode.

Prompt action was not only exacted of him by the canal commissioners, but was required by the interest of the State and of parties using the canal. The nature of his duties, and public policy, made it incumbent to decide not only whether he should act in the removal of the obstruction, but also what measures should be taken to accomplish the object.

In determining the latter question, thé rights of the plaintiff and the damages resulting to him from the most speedy removal of the obstruction on the one side, and the loss to other parties and the public from its continuance for a day and a half longer, on the other, were proper subjects of consideration. No specific course of action for him to pursue was defined.

The obstruction was peculiar and extraordinary, and a resort to the ordinary means would not have been available to remove it, and the mode by which it should be done was consequently' to be determined by the defendant in the exercise of a sound discretion and judgment, based on the facts and circumstances there appearing.

This action in the premises was, in my opinion, judicial in its nature, and cannot properly be considered ministerial only.

Assuming that to be true, the defendant was not responsible to the plaintiff for the damages sustained by him, and the judgment of the court below should be reversed and a new trial ordered, costs to abide the event.

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Hunt, J., concurred with Judge Lott. Ingalls, J., did not vote, having sat in the court below. All the other judges concurring with Earl, Ch. J., the

Judgment was affirmed, with costs.