Peters v. Town of Fergus Falls , 35 Minn. 549 ( 1886 )

Gileillan, C. J.

In Woodruff v. Town of Glendale, 23 Minn. 537, it was decided that, in the matter of opening and working highways, the acts of the supervisors are the acts of the town, for which it is liable. This is to be understood, however, to refer only to acts of the supervisors within the general scope of the powers and duties of the town, which are cast on the supervisors to perform, and not to acts of theirs done merely colore officii, without the scope of such powers and duties, and which, the town having no authority to do, the supervisors have no authority to do in its behalf. Thus, if the connecting other large sloughs and ponds by means of ditches, alleged in this complaint, was done upon the highway, and in the course and as a means of improving it, there could hardly be a doubt that it was within the general scope of the powers of the town, and of the authority of the supervisors to act in its behalf. If, on the other hand, it was done, not for the purpose of improving the highway, but for some other purpose, as for a merely private purpose, — for instance, to drain private lands, — and perhaps if done off the highway, it would be without the general scope of such powers, and the supervisors, and not the town, would be liable. Now, as we understand from the complaint, these acts were done for the purpose and as a means of improving the highway, and, for aught that appears, were done on it. It is alleged that the supervisors acted in their official capacity.

In Altnow v. Town of Sibley, 30 Minn. 186, (14 N. W. Rep. 877,) it was held that, in the absence of a statute imposing such liability, the town is not liable to a private person for injuries sustained in consequence of a neglect to keep a highway in repair, the reason given being that the duties enjoined in this behalf are public in their nature, — that is, duties to the state, and not to private persons; and that hence a breach of them creates a liability to the state only, — a public liability. In respect to laying out and keeping in repair highways, the town is to be regarded as the agent of the state, and for non-action in the premises it is not liable to individuals.

Is it liable to private persons for injuries caused by acts of misfeasance, in performing a duty it owes to the state, by a negligent or unskilful performance of it ? The duty imposed upon the town of constructing and keeping in repair highways puts it in possession and control of them for those purposes, and gives it a qualified or special property in the land over which they run. It stands, so far as respects adjacent property, in the position of owner. Gilman v. Laconia, 55 N. H. 130; Haynes v. Burlington, 38 Vt. 350; Hill v. Boston, 122 Mass. 344, 358. The right to cause damage to adjacent lands in the town’s management and control of the highway, beyond that which a private owner may, without liability, cause to the lands of others by acts done on his own land, must be acquired through the right of eminent domain. O’Brien v. City of St. Paul, 25 Minn. 331, and cases cited.

If the allegations of the complaint (as we construe them) are true, the defendant is liable.

Order reversed.