109 A. 246 | Conn. | 1920
The chief ground of appeal of the defendant Peck, is that the cutting of the brush and trees complained of was done by him as selectman of Middletown, in the exercise of his discretion, and hence for any damage done him the plaintiff is remediless.
Support for this proposition is found in the assertion of the right of the public authorities to clear a highway of such brush and trees as is in their discretion necessary or advantageous; and by the further assertion, *438 that liability for damage resulting to the adjoining property owner cannot arise unless it appears affirmatively that these officials abused their discretion by acting maliciously or wantonly.
The plaintiff, whose land abutted on these highways — there being nothing in the record to the contrary — is to be regarded as the owner of the soil to the middle of these highways, and enjoys over this strip the full privileges of ownership, provided his acts of ownership do not interfere with the easement of passage of the public. Newton v. New York, N. H. H.R. Co.,
Public authorities cannot by mere declaration make that a nuisance which is not such in fact, and in reliance upon this declaration destroy property. But since they are engaged upon a governmental duty in the care and maintenance of the highways, so long as they act in good faith, in the exercise of an honest judgment, and not in abuse of their discretion, or maliciously or wantonly, they cannot be held liable. The town or its agents have the undoubted right to cut down trees in the highway which interfere with public travel. Ely v. Parsons,
And we think this is our own rule. The discretion to be exercised is a sound discretion, yet necessarily it must be a wide discretion in the performance of these governmental duties. That every tree cut did not interfere with the public easement in the highway, or promote the public convenience, will not be the determining factor in justifying an abutting owner in his recovery of damages. Where the discretion has been exercised erroneously but in good faith through an error of judgment, the public official should not be required to pay damages for his acts. The affairs of government cannot be conducted with absolute exactitude, and public officials cannot be expected to act in all cases with certain judgment. Timidity and doubt would govern their performance of public duty if they acted in the consciousness that personal liability might follow, no matter how closely they followed their best discretion. Courts should not too closely scrutinize the acts of discretion on the part of the public official in the care and maintenance of highways, even though there be an erroneous exercise of discretion, when the good faith of the transaction is manifest and the most that the situation indicates is an error of judgment.
Where, however, the public official acts outside any suggested benefit to public travel, and destroys property, he cannot plead governmental immunity. His act is then clearly illegal. He has not acted in the exercise of a reasonable discretion but in abuse of it. *441 Any other holding would subject the property of every owner abutting a highway to the unrestrained will of whoever chanced for the moment to have the care and maintenance of our highways. The rule which, on the one hand, fairly protects the abutting owner, and, on the other, fairly protects the public official in acting in the line of duty, is that unless he acts maliciously, or wantonly, or in abuse of the discretion vested in him by law, he shall not be subjected to personal liability.
The defendant argues that public officials caring for highways may act, in removing obstructions within the highway, within their discretion. This is true where the obstruction interferes with public travel. But where it does not so interfere another rule governs. As we have pointed out, the defendant's brief practically concedes that the exercise of discretion by a public official in caring for highways does not justify acting maliciously, or wantonly, or in clear abuse of the discretion by law vested in him.
The finding shows that the defendant cut down a great number of trees which did not obstruct the public easement of travel over the highway, and were in fact distant from it. The plaintiff was the owner of these trees, his property was destroyed; and this was done by the defendant, not through mere error of judgment but through a failure to exercise not merely reasonable discretion but any discretion. There could be no plainer case of an abuse of discretion by a public official. And when we look beyond the acts done to ascertain how they came to be done, we find so great an abuse of discretion as to characterize the acts done as wanton. Charged with the duty of caring for these highways and removing the obstruction to them caused by trees and bushes growing alongside, the defendant, as selectman, without examining the locality and determining what should be done, and, so far as this *442 record shows, possessed of no knowledge of the extent of the obstruction or of the requirements to make the highways reasonably safe for public travel, sent Atkins, whom he had occasionally hired to make repairs on the town highways, with a gang of men and with instructions "to trim off the sides of the roads to the wall and make a good job of it." Atkins acted in accordance with his instructions and cut everything to the wall for a distance of twenty-five hundred feet, and for a distance of twenty-eight feet from the traveled way. The work was left to the judgment of Atkins. The defendant did not endeavor to control it. Atkins was an employee hired by the defendant and his employment was discretionary with the defendant. The public official is always responsible for the illegal acts of his subordinate whose appointment is a mere hiring and discretionary with him. And the defendant would likewise be held liable for the illegal acts of Atkins because he directed and authorized them.
Ely v. Parsons,
The final contention of the defendant is that he is not responsible for the acts of Atkins, because Atkins was not his agent but the agent of the board of selectmen as a whole. For the acts done outside the scope of their governmental duty the selectmen could not bind the board. Its act would be the act of those members participating, and they alone would be responsible for their act. No more can the individual member of the board bind the board, or a member of *443 the board, for acts which lie outside the province of their public duty. To what extent the first selectman may bind the board and the town, we do not now determine.
There is no error.
In this opinion the other judges concurred.