Warren v. Sabin. I think the jury did not include any vindictive or punitory damages in their verdict. My conclusion is, that no error was committed on the trial to the prejudice of the defendants; and that their motion for a new trial should be denied, with costs. So decided. JOHN WARREN, Respondent, v. LUTHER S. SABIN, Appellant. (GENERAL TERM, THIRD DISTRICT, MAY, 1869.) Plaintiff and defendant owned and occupied contiguous premises, facing a highway; defendant drove a post, partly on the plaintiff's land, at the point where their front fences came together, claiming the right to maintain it there, as part of his front fence. In an action by plaintiff, to recover damages for trespass, on account thereof-Held, the jury were rightly instructed that the post was not part of a division fence. The rule as to division fences permits them to be placed equally on the land of each adjoining owner. It has its foundation wholly in the statute, and does not apply to fences meeting on the front of adjoining premises. Such fences are required to terminate at the division line. APPEAL by defendant from a judgment entered upon a verdict at the Rensselaer Circuit. The action was to recover damages against defendant for his driving a post on plaintiff's land. The answer denied that it was plaintiff's land, and claimed that the land where the post was driven was the property of defendant's wife, by whose authority the post was driven. The parties were occupants and owners of adjoining lands, and maintained, by agreement between them, equal portions of a division fence. The plaintiff recovered a verdict for norminal damages, and the defendant appealed to this court. F. Rising, for the appellant. R. H. Parmenter, for the respondent. Present-MILLER, INGALLS and PECKHAM, JJ. Warren v. Sabin. By the Court-PECKHAM, J. The only point made upon this appeal is the alleged error of the justice, at the trial, in charging the jury, that the plaintiff was entitled to recover if the post, or any part of it, was upon the plaintiff's land; and in refusing to charge to the contrary, or to charge that that post was part of a division fence, and, hence, that defendant had the right to place it half on one side and half on the other side of the line between the parties. The justice, at the trial, charged that the defendant had the right to put the post there, in part, upon the plaintiff's land, "if it was put there for the division fence, or for part of the division fence, or for a division line." But the court adde that it did not regard this post as part of a division fence cr line between the parties. This part of the charge, and of the refusal to charge, was excepted to by the defendant. Was it right? In my opinion it was. The doctrine as to division fences being placed partly on the land of each owner, has its foundation entirely in the statute. Our statute provides that "where two or more persons have lands adjoining, each must maintain a just proportion of the division fence between them." Under this statute it is clear, upon principle and authority, that the owners are bound to erect and maintain a line or division fence, and should make it equally upon the lands of each. The difficulty in the defendant's case seems to be that on the north side of this lot conveyed to plaintiff, there was no division fence, and could be none. On the north side their lands did not "adjoin." They adjoined only on the westerly line of the plaintiff's, and the easterly line of the defendant's land. The northerly side of plaintiff's land adjoined the public highway. It is not pretended that this post complained of was put there as any part of the fence running north and south, which was and could be the only division fence between the parties; the only fence between adjoining lands. It was claimed to be a part of the defendant's fence, running on the north side of his lot. If it were a part of that fence (of which I am not satisfied on the Hicks v. Dorn. evidence; it seems to have been put there simply to obstruct the plaintiff's gate; to assert the defendant's right to place it there) there was no necessity for putting any part of it on the plaintiff's land. The fence of the defendant on that line should run up to the line on one side, and the plaintiff's fence should run up to the same line from the other direction, to meet the defendant's fence. Such a fence is in no sense a division fence, and the statute has no sort of application to its location. (Nowell v. Hill, 2 Met., 180.) This being the only point urged or presented in the points, as a ground for reversal, the judgment must be affirmed. Judgment affirmed. CORNELIUS D. HICKS, Respondent, v. ROBERT C. DORN, Superintendent of Canal Repairs, Appellant. (GENERAL TERM, THIRD DISTRICT, MAY, 1869.) In the use of means to restore a canal to a navigable condition after it has been determined that there is an obstruction requiring removal, a superintendent of canal repairs acts ministerially, and is liable for damages if he unnecessarily adopts such a remedy, or proceeds in such a manner as to injure private property. To justify the injury or destruction of private property, there must exist a pressing public necessity both as to the act to be done and the manner of doing it; and whether such a necessity existed is a question of fact to be determined from the circumstances of the case. Accordingly, where plaintiff's boat had grounded (without his fault), between the gates of a dry dock, opening into a basin of the canal, and thus prevented navigation; and the superintendent, acting in good faith, and doing no more injury than the act required, destroyed the boat; and it appeared that other methods were practicable, and might have been adopted by him, without serious detriment to the public interests, which did not necessarily involve injury to the plaintiff's boat-Held, the superintendent was liable for the value of the boat. THIS was an appeal by defendant, from a judgment rendered in favor of plaintiff. on the report of a referee, for $2,131.95. On the 19th of May, 1865, the defendant was superintendent LANSING- VOL. I. 11 Hicks. Dorn. of canal repairs, in charge of section two, of the Erie canal, including the portions thereof hereafter mentioned, under instructions from the canal commissioners to act promptly whenever a break occurred, and restore the canal to a navigable condition as speedily as practicable, at all hazards. At Vischer's Ferry the canal runs nearly east and west. On the northerly side of the canal was a basin, forming part of the canal itself, covering about half an acre. At the northerly point of the basin were two lock-gates, belonging to the State, separating the basin of the canal from a dry dock, covering about a quarter of an acre, the private property of one Alexander Sherman, into which boats were taken from the canal for repairs. These lock-gates opened southerly into the canal. On the easterly side of Sherman's dry dock he had a waste-weir for letting off surplus water. A short distance west of the dry dock was a culvert, under the canal, the property of the State, through which, from the north, a creek, called Stony creek, ran into the Mohawk river, southerly of the canal. The lock-gates, owned by the State, were used as a waste-weir to let off the water from the canal, which passed into the dry dock, and out of that, through the gates thereof belonging to its owner, into a ravine, through which it ran into Stony creek, above the culvert. The creek was of considerable size, and above the culvert fell rapidly. The State kept no one in charge of the lock-gates, but they were opened by Sherman, and those in his employ, to let boats from the basin into the dry dock, they immediately thereafter closing them again. On the 18th of May there was a severe spring rain, which raised the water in the river, creek and canal, creating a freshet, filling the canal so that the water ran over its banks. This was the condition of the river, the creek and the canal, on the 19th of May. Two or three days previous to the 19th, the plaintiff's canal boat, the "G. W. Ganung," had been thus run from the canal into this dry dock for repairs. On the 19th of May, the canal was in a navigable condition the whole length thereof, and a large number of boats were Hicks v. Dorn. 4 navigating it. On that day, when the canal, the creek, and the river were in such a swollen condition, the canal lockgates were opened by Sherman's men in charge of the dry dock, and the captain and crew of plaintiff's boat commenced running her, stern foremost, into the canal. When she was nearly half way through the gates, the waste-weir and gates of Sherman's dry dock suddenly gave way, creating a large breach in the bank thereof; in consequence of which the water ran rapidly out of the dry dock and of that, a three mile level of the canal. This left the boat between the open gates of the canal, resting upon the miter sill. She was about ninety-five feet long; about forty-five feet lay in the basin of the canal, and the remainder in the dry dock. The lock-gates of the canal could not be closed, and navigation thus resumed, until the boat was removed. The defendant was notified of the break, and arrived on the ground about nine o'clock in the morning. He examined and deliberated upon the situation, and upon the several modes of restoring the navigation of the canal. Four methods were possible: 1. To dam up the culvert under the canal, so as to raise the water above it high enough to set it back up the ravine into the dry dock and level of the canal, deep enough to float the boat. This would have been only an experiment, and, if successful, would have been fraught with danger to the canal. 2. By repairing the banks of Sherman's dry dock, which might have been done in two days, so as to have permitted sufficient water to have been let into the canal and dry dock to float the boat out of the gates, so they could be closed, and navigation resumed. 3. By building a coffer dam, in the basin of the canal, around the stern of the boat, which could have been done in two or three days, at a cost of $900, and $250 to $350 for removal. 4. By cutting out of plaintiff's boat a piece thereof of suf ficient length to enable him to close the gates between the canal and the dry dock, and let the water into the level, which could be done in about twelve hours. This involved the destruction of property, the value of which did not much |