Plummer v. Sturtevant , 32 Me. 325 ( 1850 )

Howard, J.

The alleged trespass consisted in the defendant’s entering the plaintiff’s enclosure without license, and removing a portion of his fences, and ploughing up a strip of his land, about fifteen -rods in length, and digging a ditch through it, from one to two feet deep, and from thee to four feet wide, for the purpose of conducting off water which flowed down an adjacent highway. This ditch conveyed the water across the plaintiff’s pasture and field, to the land of another person, but it drifted and deposited gravel on the plaintiff’s land, thereby doing damage.

The defendant pleaded the general issue, and by a brief statement, justified the supposed acts of trespass, as having been done “ in the lawful discharge of his duty as a highway surveyor in the town of Searsmont, in repairing the public highway in said town, and opening water-courses to protect said public highway.” If the justification be insufficient, the defence must fail upon the facts proved, or not disputed.

The duties of a surveyor of highways are prescribed by statute, and his power and authority, in respect to the construction and repairs of public roads, are derived wholly from statutory provisions. He may, within his district, remove any obstacle, natural or artificial, that obstructs, or is likely to obstruct, or render dangerous the passage of any highway or town way. R. S. chap. 25, sec. 71. “ He may also dig for stone, gravel or other materials, suitable for making or repairing the roads, in any land not planted nor enclosed, and the same may remove to any place on the roads in his district, where he may judge it necessary.” Sec. 72. But. he is not authorized by law to appropriate the lands of individuals, lying without the limits of the roads, and enclosed, to the convenience or necessities of the public. As a surveyor, the jurisdiction of the defendant was limited, and confined within definite bounds, and beyond that, his official capacity could not give him any rights, immunities, or protection, not enjoyed by other citizens.

The evidence does not sustain the position, that “ the place where the ditch was made was the natural channel or place where the water from the side-hill above naturally passed off, and if so, the surveyor had a right to re-open it.” Nor does it support the argument, that the public had acquired by prescription, a right, or an easement, principal or secondary, to turn the flow of water from the highway on to the plaintiff’s land. And it does not appear that such diversion of the water was necessary to the enjoyment of the right of way by the public ; although it is proved that the water, when suffered to flow down the ditches by the sides of the road, had injured it, and that it could be more conveniently directed on to the land of the plaintiff, than in any other direction; and that the channel made by the defendant, was suitable for the purpose for which it was constructed. But it was not the duty of the defendant, and he did not possess the power, to subject the estate of the plaintiff to a servitude to the public in the manner attempted. In our opinion his supposed justification is insufficient, and his attempt to perform a duty has resulted in committing a trespass upon the property of the plaintiff. Damages were assessed by a jury in the District Gourt, for the sum of five dollars, and for that amount, upon the evidence before us, the plaintiff is entitled to judgment;