SUPREME COURT.

#### Francis H. Moran, respondent, agt. William McClearns, appellant.

In an action against an overseer of highways for wrongfully diverting a watercourse on the plaintiff’s laud, it is error for the judge to instruct the jury that the diversion of the waters on the plaintiff’s laud was wrongful, and that the plaintiff is entitled to recover the damages he has sustained thereby.

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.

It is also error for the conrfc to instruct the jury that if the- defendant acted *maliciously*in diverting the water, to injure the plaintiff, the plaintiff was entitled to recover all the damages he had sustained, whether the defendant had a right to-turn the water or not.

This amounts to an instruction to the jury that, notwithstanding 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 aet becomes unlawful.

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—cannot be tolerated.

*Fourth Department, Submitted May General Term,*1871.

*Decided at June Term,*1871.

*Before*Mullin, P. *J.,*Johnson *and*Talcott, *JJ.*

This was an appeal from a judgment of the county court of Onondaga County, in favor of the plaintiff. The action arose in justice’s court, where the plaintiff recovered $140 damages. Upon an appeal brought by the defendant to the county court of Onondaga County, the action was tried before Hon. Henry Riegel, county judge, and a jury, and *290resulted in a verdict in favor oí the plaintiff for the sum of $150.

The facts, so far as they are material, are sufficiently stated in the opinion of the court.

Ludington & Gillespie, *for respondent.*

Fullee *&*Vann, *for appellant.*

*By the court,*Talcott, J.

The action was for wrongfully diverting a watercourse on the plaintiff’s land, *to*his damage. The defendant justified as overseer of highways. The facts seem to have been .that the defendant, as over seer of highways, had opened a ditch on the west side of a road in his district,, which had, for some time, been obstructed, and had also destroyed a sluiceway which had been censtructed by the trustees, of a school district, across the same road, whereby the water flowing on the west side was carried across on to 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 on 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 sluice-way, across the road on to 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, and not by motives ■connected with the public interest, or by a design to injure ■the plaintiff.

-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, *291the 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 coufit, 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 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 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 notwithstanding, a public officer *292may 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 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 the 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*agt. *Kinsbury,*11 *Wend,,*667).

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