Moran v. McClearns.

been obstructed, and also destroyed a sluiceway which had been constructed by the trustees of a school district, across the same road, whereby the water flowing on the west side was carried across onto an east and west road; the effect of which was, at times, to excavate the east and west road, and render it dangerous, if not impassable. Another effect of the sluiceway which had been made by the trustees of the school district, was to throw upon the defendant's farm, water from the west ditch, which had not before been accustomed to flow upon his land, and to subtract a considerable quantity of water from that which had formerly flowed down the west ditch, and thence, by another existing sluiceway, across the road onto the land of the plaintiff. It was claimed by the plaintiff, that in thus changing the course of the water, the defendant was actuated by motives of self interest, to protect his own land, or by a design to injure the plaintiff, and not by motives connected with the public interest. On the trial, the question as to where the water had been accustomed to flow before the trustees of the school district had changed its course, was litigated; and the defendant gave evidence tending to show that, from time immemorial, the water had been used to flow down the west ditch until the time when it was thus intercepted by the trustees of the school district; and also tending to show the material injury to the east and west highway which was produced by the change which had been made; and tending to show that the acts done by the defendant only restored the watercourse to its ancient condition, and were proper to protect the east and west highway.

Among a great variety of propositions, the court, on the trial, stated to the jury as follows: "I think, therefore, that the diversion of these waters upon the plaintiff's land was wrongful, and that the plaintiff is entitled to recover the damages he has sustained by reason of the diversion of these waters upon his land." To this the

7n

39

Moran v. McClearns.

defendant excepted. This appears to have been an instruction to the jury that the plaintiff was entitled to recover, and not a mere intimation of an opinion on a question of fact, and must have been so received.

Now, whether the diversion was wrongful or not, depended upon a variety of questions of fact, which were, and fairly might be, controverted upon the evidence; and the statement of the court to the jury seems to preclude any consideration by them of the various facts in controversy, and upon which the legal right depended, and which it was error to withdraw from the jury and pass upon as a question of law.

Again; the court instructed the jury as follows: "If you come to the conclusion that the defendant acted maliciously in diverting this water; that he did not do it because he deemed it a public duty, or because he deemed it reasonable and proper for him to do it as a public officer, but he did it maliciously, to injure Mr. Moran, then the plaintiff is entitled to recover all the damages he has sustained, whether he had a right to turn the water or not." This instruction was excepted to. It amounts to an instruction to the jury, that notwitstanding a public officer may be fully warranted and duly authorized in law to do the act complained of, yet his motives are, in such a case, the subject of inquiry by the jury, and if they come to the conclusion that his motives were selfish and sinister, then the act becomes unlawful. It is scarcely necessary to say that such a rule determining the liability of public officers, not according to the lawfulness of their acts, but according to what a jury may suppose to have been their secret motives, could not be tolerated. In civil actions the inquiry is, first, as to the lawfulness of the act complained of. If the act be unlawful, the motives which have actuated a party, may, in many cases, operate upon the question of damages, but the motives can rarely be a subject of inquiry where the act done was in the exercise of a clear

Squares v. Campbell.

legal right. It was no valid objection to the justification. of the defendant that he had not been ordered by the commissioners of highways to make the repairs in question. It is made the duty of overseer of highways, under a penalty, to keep the highways in his district in repair, and it is well settled that this duty devolves upon him. whether he has been directed by the commissioners or not. (McFadden v. Kingsbury, 11 Wend. 667.)

The judgment of the county court must be reversed, and a new trial in that court granted; costs to abide the

event.

[FOURTH DEPARTMENT, GENERAL TERM, at Syracuse, May 1, 1871. Mullin, P. J., and Johnson and Talcott, Justices.]

SQUARES v8. CAMPBELL.

The act of the legislature, of May 9, 1867, (chap. 814,) amending the act of April 23, 1862, "to prevent animals from running at large in the public highways," provides for a judicial proceeding, in which the justice has jurisdiction of the parties and of the subject matter, and therefore, so far as it authorizes the seizure of animals trespassing on a private inclosure, is not liable to the objection that it is penal in its character, and deprives the owner of his property without due process of law; but is valid and constitutional.

The act is not unconstitutional because it interferes with the right of trial by jury. Due process of law does not necessarily import a trial by jury. As to the damages to be recovered, the act is indisputably remedial in its character, and comes under the same principles and practice, and is sustained by the same reason, as the proceeding to distrain animals damage feasant.

The words "without due process of law," as used in the constitution, do not mean the want of process by which the property is taken, but the want of a judicial proceeding in which it is taken. The act in question provides for a judicial proceeding, and the captor seizes and retains the property as a part of the proceeding.

Squares v. Campbell.

The act of 1867 gives to the owner of the property seized, by virtue of its provisions, the same right of replevin as the law gave in case of distress of animals damage feasant.

MOTION by the defendant for a new trial, on a case

exceptions.

The defendant, under the act of the legislature of May 9, 1867, amending the act of April 23, 1862, “to prevent animals from running at large in the public highway," (Laws of 1867, ch. 814, p. 2036,) on the 13th of July, 1869, seized a colt belonging to the plaintiff, of the value of $150, which was trespassing upon his private inclosure. He immediately endeavored to make complaint to a justice of the peace of the town where the seizure was made, in accordance with the requirements of the act; but before he had succeeded in doing so, the plaintiff brought this action of replevin, to recover possession of the property. The defendant justified under said act. On the trial, the court directed a verdict for the plaintiff.

Wm. Gleason, for the plaintiff.

F. Jacobs, Jr., for the defendant.

MURRAY, J. On this motion two points are presented for consideration: 1st. Is the said act as amended constitutional, in authorizing the seizure of animals trespassing on a private inclosure? 2d. If it is constitutional, was the defendant in this action protected in seizing and retaining the colt, as he did, before any complaint was made?

In section 2 of chapter 459 of the laws of 1862, it is provided that it shall be lawful for any person to seize and take into his custody and possession any animal which may be in any public highway, and opposite the land owned or occupied by him, or which may be trespassing upon premises owned or occupied by him. Section 3 provides that on such seizure, it shall be the duty of such

Squares. Campbell.

person to give immediate notice to some justice of the peace or commissioner of highways in the same town, and that the justice or commissioner shall give notice that the animal will be sold at a certain time and place, and on that day sell the same at public auction, and out of the proceeds of the sale, pay officers' fees, and persons making the seizure, certains sums for each animal seized, and a reasonable compensation for keeping them, to be estimated by the justice or commissioner, and pay the surplus to the

owner.

In the case of Rockwell v. Nearing, (35 N. Y. 302,) the constitutionality of this act was brought in question. It was virtually conceded, in the Court of Appeals, to be constitutional in authorizing a seizure of animals running at large on a public highway; but in authorizing a seizure of animals trespassing on a private inclosure, it was held to be unconstitutional. The reason for this decision was that it deprived the owner of his property without due process of law, in violation of section 6, article 1, of the constitution of the State. The reasons are very clearly and satisfactorily stated in the able opinions of Judge Porter and Justice Morgan. This decision was made at the March term of that court, in the year 1866. On the 9th of May, 1867, the legislature, by an amendment to said act, (chap. 814,) attempted to remove the constitutional objections to it. In citing the provisions of the amended act, and in consideration thereof, I will only refer to it so far as it relates to private trespasses.

In section 2 it is provided that it shall be lawful for any person to seize and take into his custody, and retain until disposed of as required by law, any animal which may be trespassing on premises owned or occupied by him. Section 3 provides that on such seizure, it shall be the duty of such person to make immediate complaint, in writing, under oath, stating the facts, to a justice of the peace of the same town, and that such justice shall thereupon have