John Anderson, Appellant, v. Joshua A. Van Tassel, Respondent

John Anderson, Appellant, v. Joshua A. Van Tassel, Respondent. A public officer cannot be deprived of the power conferred upon him for public purposes by implication. The act of 1863 (chap. 93, Laws of 1863), authorizing the making of sidewalks and planting shade trees along highways, etc., is not repugnant to •and does not repeal the act of 1860 (chap. 61, Laws of 1860), providing for the construction and protection of sidewalks, which reserves to commissioners and overseers their authority over highways, and the permission to landowners given hy the former act is not inconsistent with the exercise of the authority conferred hy law upen the officers charged with the care of highways and bridges. (Argued June 6, 1873 ; decided September 23, 1873.) Overseers of highways, in the performance of their duty to keep in repair the highways in their respective districts, have jurisdiction over every part of the highway to its entire width. Accordingly, held, that an overseer of highways, who had taken material from the side of a highway necessary for the repairs of the carriage way at the same point, was not liable to the owner of the adjoining land, although the latter had made some improvements by way of grading and leveling the ground from whence the material was taken, and in making gutters, etc., in the absence of proof that the overseer had acted wantonly or maliciously, and where it did not appear that the character of the improvements or the condition of the highway rendered it improper to take the material. This was an action of trespass in removing the soil from the sides of the highway adjoining plaintiff’s premises. The plaintiff was the owner of a piece of land in Tarry-town, lying on the east side of the highway known as the Highland Turnpike. For a part of the way he had removed the earth in front of his property along the road, and had graded the road along his line, to the width of six feet, along which he made a paved gutter, the inner side of which, adjoining the line of the graded surface, was flanked with flat stones and boulders. In May, 1866, the defendant, being overseer of the highways, in repairing the highway, plowed up this graded surface, and carried about ten inches of the earth into the road adjoining, which was then much out of repair. There was no other place in the neighborhood where earth could easily be got. After removing the earth the defendant cleared out the gutters, and left the graded portion of the road adjoining the plaintiff’s line, so that persons could walk on it as before. For these acts the plaintiff brought the suit, and the foregoing facts appearing on the plaintiff’s own evidence, after he had rested his ease, the circuit judge, on the motion of the defendant, nonsuited the plaintiff. Held, as above stated. C. Frost for the appellant. Thomas Nelson, for the respondent. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.