
    Wrightsel v. Fee et al.
    
      Road supervisor and his workmen — Are liable in damages — For diversion of water from natural course, when.
    
    A road supervisor and those -working upon the roads under his direction are, without regard to the motive which prompts them, liable in compensatory damages for the diversion of water from its natural course, and casting it upon the lands of another, no right to make- such diversion having been acquired by the public.
    (No. 9972
    Decided June 25, 1907.)
    Error to the Circuit Court of Vinton County.
    The plaintiff, Mrs. Wrightsel, brought suit against the defendants on account of the alleged unlawful, wrongful and malicious construction of a ditch and embankment along a public road traversing her lands and those of the defendant, Fee, whereby water was diverted fro'm the course in which it had formerly and naturally flowed to and upon the lands of Fee and throwing the same upon her lands, thus creating a washing by which a gully was formed and her meadow lands were substantially injured, and a portion thereof cut off from the remainder. She prayed'1 for damages for the injury done to her lands and for the abatement of the alleged nuisance.
    Myers answered, alleging that at the time of the acts complained of he was the qualified and acting road supervisor of the district in which the lands and the road lay; that for the improvement of the road in the exercise of good faith and without malice he caused the ditch to be cleaned out and the embankment constructed, and denying generally the averments of the petition.
    Fee answered, alleging that what he did was while working out his road and poll taxes under the direction of his co-defendant, Myers, and without any intention to injure the plaintiff and substantially denying the diversion of the water from its natural course.
    Replying, the plaintiff denied the new matter alleged in the answers, except that Myers was road supervisor at the time of the acts of which she complained. On the trial of these issues before the judge and a jury evidence was introduced by the parties tending to support the allegations of the pleadings. At the conclusion of the evidence the court charged the jury as follows: “the defendant, Myers, is not liable and no verdict can be rendered against him in this case if he constructed or caused to be constructed the ditch along the west side of said road, within the district for which he was road supervisor, in good faith and in the exercise of a careful and prudent judgment as. to what he believed was best for the improvement of said road, and did not do it with any purpose to injure the plaintiff or to benefit the defendant, Fee, by draining his lands to the prejudice of the plaintiff, and the defendant, Fee, is not liable if what he did in connection with the construction of said ditch and the diversion of said stream, if such there was, was done in working out his road tax under the direction of said Myers as supervisor of said road district.” To the charge so given the. plaintiff excepted. A verdict for the defendants having been returned, the plaintiff's motion for a new trial was overruled and judgment was entered on the verdict. The judgment was affirmed by the circuit court.
    
      Mr. Henry W. Coultrap, for plaintiff in error.'
    The' effect of this instruction was that no verdict could be returned in favor of the plaintiff against the defendant, Myers, if the latter acted in the matter of the diversion of the water-course in good faith and not for the purpose of injuring the plaintiff or benefiting the lands of the defendant, Fee.
    This instruction narrowed the consideration of the jury down to the question of the good faith of the defendant, Myers, and the single legal question presented for the consideration of this court is whether a road supervisor, under the claim of improving a public road, may knowingly change a water-course from its natural channel and turn it upon the premises of an adjacent land owner to his injury, without becoming liable for at least nominal damages.
    
      Section 6921, Revised Statutes, makes it an indictable offense for any one to unlawfully divert a water-course from its natural course to the injury or prejudice of others. But, independent of the statute, no one may divert a water-course from its natural course to the injury of another without becoming personally liable for damages, and our contention is that a road supervisor has no greater rights in this respect than any one else. Wood on Nuisances, Sec. 376; Tootle v. Clifton, 22 Ohio St., 247; Beckwith v. Beckwith et al., 22 Ohio St., 180; Cooley on Torts, 569; Elliott on Roads and Streets, 2d Ed., Sec. 679; Tearney et al. v. Smith, 86 Ill., 381; Troop on Public Officers, Sec 724; Hover v. Commissioners, 44 N. Y., 113; Harris et al. v. Carson, 40 Ill. App., 147.
    Great stress is placed by counsel for the defendants upon the fact that a road supervisor is obliged to act, and that he is required under penalty of a money forfeiture to keep in repair all the public roads and highways laid out and established in his road district, and they . argue that for that reason a road supervisor can not be held personally liable for any injury done to the property rights of an adjacent land owner while engaged in improving a public highway, provided such supervisor acts in good faith and 'according to his best judgment. This argument is fully answered by the court in the case of McCord v. High, 24 Iowa, 336.
    Another case more nearly identical with the case at bar is Cubit v. O’Dett et al., 16 N. W. Rep., 679.
    The discretion of the overseer of highways, in deciding how and where he will distribute highway labor, is limited by rights of individuals, and; he and his assistants are jointly liable for the invasion of those rights.
    Highway authorities have no more rights than private persons to cut drains, the necessary result of which will be to flood the lands of individuals.
    This was shown in Ashley v. City of Port Huron, 35 Mich., 296. And when he is liable for a lawless act, all his assistants are liable with him for the consequent injury. Story on Agency, Sec. 311, 312; Brown et al. v. Howard, 14 Johns., 119; Coventry v. Barton, 17 johns., 142; Fiedler v. Maxwell, 2 Blatch., 552; Tracey et al. v. Swartwout, 10 Pet., 80; Smith v. Colby; 67 Me., 169.
    
      Mr. T. A. McFarland and Mr. T. S. Hogan, for defendants in error.
    This case is decided in our judgment by Sections 4715, 47I5« and 4716, Revised Statutes, pointing out the duties of road supervisors. The decisions of the Supreme Court of Ohio have been uniform on the question of non-liability of public officers when acting in good faith and in the scope of their duty, although it is true that the courts of Illinois, Iowa and Michigan hold different and from the decisions in these three states the plaintiff in error seeks to overthrow the doctrine declared by the courts of Ohio. Ramsey v. Riley, Recorder, 13 Ohio, 157; Thomas v. Wilton, 40 Ohio St., 516; Stewart et al. v. Southard, 17 Ohio, 402; Jeffries v. Ankeny et al., 11 Ohio, 372; Dunlap v. Knapp, 14 Ohio St., 64; Commissioners v. Mighels, 7 Ohio St., 110; Grimwood v. Commissioners, 23 Ohio St., 600; Yealy et al. v. Fink, 43 Pa. St., 212; Elder v. Bemis, 2 Metc., 599; Bartlett v. Crozier, 17 Johns., 449; Wilson v. Simmons, 89 Me., 242; Waldron v. Berry, 51 N. H., 136; Smith v. Gould et al., 61 Wis., 31; Cook v. Hecht, 64 Mo. App., 273; Gregory v. Small, 39 Ohio St., 346.
   Shauck, C. J.

The motive which prompts to the doing of a wrongful act is frequently important as indicating whether there should be a recovery of exemplary, or only of compensatory, damages; but in the present case, notwithstanding the testimony tending to show the diversion of water from the course in which it had naturally flowed to and upon the lands of Fee to another course which carried it to and upon the lands of-the plaintiff to her substantial injury, her right to recover compensation was, by the charge, made to depend upon the motive which prompted the act. It is perhaps a more precise statement of the view suggested in the pleadings and presented in the charge that the plaintiff can not recover compensation against Myers if, in his participation in the act complained of, he was acting in the capacity of road supervisor and in good faith;, nor against Fee if his participation in the diver-, sion of the water over his own lands to those of the plaintiff was in good faith and under the direction of his co-defendant acting as such supervisor: By clear implication, at least, it is conceded that- Fee would be liable in compensatory damages if he did not derive immunity from the participation and official direction of Myers. Nu~, merous cases are cited in the brief of counsel for the defendants to show that such immunity from damages for injuries to others attaches to the acts of public officers if done in good faith and for commendable purposes,- although it is conceded that even as to public officers a different rule prevails in some states. Careful examination will show that the differences are in the cases rather than in the decisions. Attention to the cases cited will distinguish some of them as holding the immunity of a public officer from damages for mere non-feasance. Others as according that immunity to an officer who acts judicially, and others as holding the same rule with respect to the conduct of a ministerial officer who is acting strictly within the line of official duty and authority. In general they concede that a public officer charged with ministerial duties who exceeds them to commit a tort is liable for its consequences. Separate analysis of the cases cited does not seem necessary, for the discrimination suggested is distinctly recognized and cases of the character of this have, in authoritative and well considered decisions, been assigned to their correct position.

Prominent among these is Cubit v. O’Dett et al., 51 Mich., 347. The case there decided is not distinguished from this by any fact whatever. One of the defendants was the overseer of highways and the other was working under his direction. In the course of the opinion Cooley, J. says: “As we understand it, one of the defendants was himself the overseer; but the fact is not important. Highway authorities have no more right than private persons to cut drains, the necessary result of which will be to flood the lands of individuals. This was shown in Ashley v. City of Port Huron, 35 Mich., 296, where many authorities are referred to. The highway overseer no doubt has a discretion in deciding how and where he will expend highway labor, but it is a discretion limited by the rights of individuals, and when he invades those rights he becomes liable. * * * This rule sometimes, when the agent has acted in good faith and without knowledge of the want of legal authority, may seem to operate oppressively, but it is a necessary and very just rule notwithstanding, and full protection of the citizen in his legal rights would be impossible without it. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it. Every one must be sure of his legal right when he invades the possession of another.”

Equally pertinent quotations might be made from Tearney et al. v. Smith, 86. Ill., 391, and from McCord v. High, 24 Iowa, 336. Other cases of like purport are cited in the brief of counsel for the plaintiff. The essential proposition which they sustain is obvious'. It is that the public not having the right to inflict injury upon its citizens can confer' ño such right upon its officer, and-the officer having no immunity from legal liability for his act can reflect no immunity upon his co-defendant.

In the brief of counsel for the defendants it is said that if such is the rule in other states, it is not in Ohio. But the decisions of this court which, are cited in support of that view fail of the purpose. To the. contrary Beckwith v. Beckwith et al., 22 Ohio St., 180, though an action for trespass instead of nuisance, proceeds upon principles which are in manifest conflict with the instruction given in the present case.. . It recognizes the distinction 'already adverted to, and in accordance with the current of decisions holds that a party is not without remedy for such wrongs as the plaintiff alleged and her evidénce tended to show in the present case.

Judgments reversed and cause remanded for a new trial.

Price, Crew, Spear- and Davis, JJ., concur.  