Correll v. Richardson

Judgment and order reversed, and new trial granted, with costs to appellants to abide event. The evidence was insufficient to show that defendant had been directed by the_ county superintendent of highways or authorized by the town board to enter upon plaintiffs’ lands and construct a new ditch to drain the water from the highway, and without such direction and authorization defendant’s entry was unlawful and a trespass, for which defendant is liable personally, and the town is not liable. See section 57, Highway Law (Consol. Laws, c. 25). Hence it was reversible error to refuse to charge the jury, as requested by plaintiffs’ counsel, “that there is no evidence here that the highway commissioner was authorized to dig this ditch by action of the town board, and that there is no record of the action; that the town is not liable unless he was directed to dig this ditch by the county superintendent, and also by the town board of Huron, under section 57 of the Highway Law.”