
    William Ehle, Appellant, v. The Town of Minden, Respondent.
    
      Town—liability of, for an injury from the fall of a bridge, built on private prop, erty to temporarily replace the highway bridge destroyed by a freshet.
    
    A highway bridge having been washed out by a freshet, the highway commissioner barricaded the highway to prevent travel in the direction of the washout; built a temporary bridge across the stream on private lands, and obtained a license to drive through such private lands to the temporary bridge.
    
      Held, that, in procuring the license and in constructing the temporary bridge, the highway commissionerácted as a volunteer and not in his official capacity, and that the town was not liable, under section 16 of the Highway Law, for any damages to person or property sustained by a person driving across the temporary bridge by reason of a defect therein, especially where it appeared that the person sustaining the injuries was aware of the situation.
    Appeal by the plaintiff, William Ehle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 4th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Montgomery Trial Term.
    
      F. G. Kelsey and Andrew J. Nellis, for the appellant.
    
      Henry M. Eldredge, for the respondent.
   Kellogg, J.:

This action is for damages for injuries to plaintiff’s horse and person sustained through the fall of a bridge while plaintiff was attempting to cross it with a load of hay weighing 4,299 pounds, horses weighing 2,800 pounds, and wagon weighing 1,400 pounds.

It appears that some days prior to the accident the highway bridge had been washed out by a freshet and the highway itself had been barricaded to prevent travel in the direction of the washout. This was done by the highway commissioner. A passageway by license of the owner of the land had been opened through the. private lands of this owner so that teams might drive to a place on the creek and cross the creek by means of a temporary structure in lieu of a bridge This passageway ivas not intended to be permanent. No other work was done upon it than the work of erecting the temporary structure which was intended to answer for a bridge until the highway bridge could be reconstructed. This entire' passageway, including the substitute for a bridge, was wholly outside the limits of the highway. The .highway itself was a cross road but little traveled. • When plaintiff rested his case I think there was sufficient evidence to warrant a finding by the jury that Emory Walratli, the' commissioner of highways of the town of Minden, procured the license from the landowner for this passageway and erected the structure over the creek.

I do not, however, think that the town was liable for the reason that this was not a public highway nor was it a bridge in or over a public highway, nor was it one which it was the duty of the high-c way commissioner to provide, nor one upon which he had the right to expend the funds of the municipality. It was wholly outside the limits of the commissioner’s jurisdiction, entirely on private grounds, and in the procurement of the license and in the construction of this substitute for a public highway and a public bridge, he acted as a. volunteer and not as a highway commissioner. That this ivas not a public highway, and not a bridge in the public highway, was well known to the plaintiff. It was obvious to any one there passing in the daytime, and especially obvious to plaintiff who was familiar with this highway from frequent driving over it before the washout. It is only for the misfeasance or nonfeasance of the highway commissioner when acting within the scope of his official duties that the town is liable. The language of the statute is as follows (Highway Law [Q-eneral Laws, chap. 19 (Laws of 1890, chap. 568)], § 16):

Liability of towns for defective highways.— Every town shall be liable for all damages to person or property sustained by reason of any defect- in its highways or bridges, existing because of the neglect of any commissioner of highways of such town.”

It is under this statute that plaintiff must recover against the town if he recovers at - all. It will be noted that the neglect here for which recovery against the town is authorized, is neglect touching defects existing m the town’s highways and bridges, hot defects in private bridges, or bridges on private property, over which the town hás and can have no control or jurisdiction. It is only the public highway which can be barricaded for the traveler’s protection ; it-is only within the limits of the town’s highways that the commissioner can exercise his official functions. The commissioner’s duties are plainly and specifically imposed and pointed out in the Highway Law, and his duties here imposed are the exact measure of his powers. Nowhere in words or by implication is the duty imposed or the authority conferred of erecting temporary passage, ways over private lands, or erecting structures along those passageways in lieu of bridges in the town’s highways. Nor is there any power in any town officer, or board of town officers, to authorize the highway commissioner to do this. This passageway and temporary structure, it will be observed, was in no way a means to the construction of a highway bridge. It was not a necessary act in the reconstruction of the washed-out bridge. No duty is imposed upon the commissioner to facilitate the public travel beyond the construction, in a reasonable time, of a bridge in the town’s highway to replace the one destroyed.. The question, cannot arise in this case as to the commissioner’s duty to warn the public that this passage was not a public highway, because the plaintiff knew it. He knew it Before he attempted it. It is an ancient rule, and the courts declare it a sound rule, that to charge a person or a municipality with negligence respecting a public work, the law must have imposed the duty so as to make failure in performance culpable. The duty here imposed relates solely to defects in the town’s roads and bridges, and none others. As this was not a town road or bridge, the town cannot be held for any neglect in its construction, and that is the sole neglect charged in the complaint. There is no charge of failure to barricade against a danger, or failure to warn plaintiff that this was not a town highway. Where the duty of erecting and maintaining bridges is imposed upon a county, as is the case in some States, it has been declared that the county is liable only for the class of bridges which the statute requires or authorizes it to build and maintain, (Taylor v. Davis County, 40 Iowa, 295 ; Moreland v. Mitchell County, Id. 394; Long v. Boone County, 32 id. 181.)

In Mayor v. Cunliff (2 N. Y. 165), Cady, J., after stating the rule of liability of a person or municipality to be confined in public works to the class of acts within the field of statutory duty imposed, says : “ Suppose a traveller upon a public road comes to a narrow and deep stream which he cannot cross without a bridge and he immediately goes to work and makes a bridge over which he with his horse and wagon passes, and shortly after another traveller attempts to pass over with a span of horses and wagon, hut unfortunately the bridge breaks down and both his horses are drowned. Has lie a remedy against the man who built the bridge % Why not ? Because the law had imposed on him no duty to build it. And so I apprehend the law to be in relation to the defendants. If the law had imposed upon them no obligation to construct the bridge or to widen and enlarge the draw therein, they must be regarded as mere volunteers and in no way responsible to the plaintiff for what they did or for what they neglected to do.” This was a case of a bridge built over the Hudson river by the city of Albany under an unconstitutional act, which fell from faulty construction after the public had begun to travel over it. The judgment of the Court of Appeals is placed squarely on the ground that the city had no authority to build the bridge and the act of the officials could not make the city liable because ultra vires. Strong, J., says; “ It was said, however, that the assent of the common council estopped the corporation from raising this objection ” (lack of authority). Admitting the principle to be true as applied to individuals, he further says, “But it is, I conceive, different with a corporation. There the officers act for their constituents, who have to pay, when they are responsible at all, and such officers are limited in their legitimate action to the powers conferred by their charters. So long as they confine their agency to such powers, their constituents are responsible for their misfeasance or carelessness. * * * The rule, although it may sometimes operate harshly, is a safe and sound one and should be applied uniformly to all cases of misconduct in persons acting in a representative character where they travel beyond their legitimate powers.” .Commenting upon this case, Miller, J., in Sewell v. City of Cohoes (75 N. Y. 51) says: “ It will thus be seen that no duty was imposed upon the defendant to build the ridge in question, and as the law conferred no authority there could be no liability.”

The court, in Smith v. City of Rochester (76 N. Y. 506), declares the rule as stated in the head note of the case, “ To establish the liability of a municipal corporation for damages resulting from the alleged negligence or want of skill of its agent or servant in the course of' his employment, it is essential to show that the act complained of was within the scope of the corporate powers ; if outside of the powers of the corporation as conferred hy statute, the corporation is not liable, whether its officers directed the performance of the act, or it was done without any express direction.”

It is misleading to give to the acts of every person having a little brief authority an official character, though professed to be done by color of office. The fact that it is so done does not make a prima, facie case; it must be shown by every complainant that the act was in fact authorized respecting a public work, and always this burden is upon the plaintiff.

Without giving any expression on the question of contributory negligence, I am of opinion that plaintiff’s complaint was, for the' reasons stated, properly dismissed, and the judgment should be affirmed, with costs.

All concurred.

Judgment unanimously affirmed, with costs.  