Fredonia and Sinclearville Plank Road Co. v. Wait.

cluded, in his defense, from drawing the title in question. (§ 58.) If it appears, on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action. (§ 59.) The justice has no jurisdiction to try a disputed title to real property. The question of actual possession is not a question of title, within the meaning of the statute. (Ehle v. Quackenboss, 6 Hill, 537.) Hence, in a justice's court, the question of actual possession is often litigated. One cannot maintain an action for a trespass upon land unless he was in possession at the time the trespass was committed. He must therefore give evidence of possession, and the defendant may controvert this evidence. He may show himself or some other person in the actual possession, at the time the act complained of as a trespass was committed. But neither party can resort to evidence to prove the title of the land in him, for the purpose of showing a constructive possession, if the other party objects, and disputes the title.

In Koon v. Mazuzan, (6 Hill, 44,) the plaintiff was not in actual possession. He gave in evidence, without objection, a deed of the premises to himself. The defendant did not, on the trial, dispute the title as shown by the plaintiff, and for this reason the judgment in favor of the plaintiff was sustained.

In the present case the plaintiff proved itself a corporation, and in possession of the road. Suppose the plaintiff had offered to prove its title to the road, by proving all the proceedings required by the act to obtain the title or right to take the highway for its road; could not the defendant have objected, and disputed such title? And would not this have ousted the justice of his jurisdiction, according to section 59 of the code? So far as title to land is concerned, the justice can only try the question of actual possession.

In this case it appeared from the cross-examination of one of the plaintiff's witnesses, that the locus in quo had been

Fredonia and Sinclearville Plank Road Co. v. Wait.

for many years a public highway, and used as such up to the time the plaintiff took possession. There is no dispute about the possession of the plaintiff at the time the acts complained of were committed. But it is said that until the plaintiff showed a right to enter and construct its road and erect its gate, it was a trespasser and the gate a nuisance. If the plaintiff had acquired no right to enter and erect its gate, such erection was undoubtedly a nuisance. But how is this question of right to be tried? Such a question undoubtedly involves title to real property, and this would have appeared upon the plaintiff's own showing, if it had attempted to introduce the evidence indicated by the defendant. And the defendant, by simply disputing the title, would deprive the justice of his jurisdiction.

If the defendant intended to raise the question of title, he should have set forth, in his answer, the matter showing that title would come in question, and should have given the undertaking. Not having done so, the justice had jurisdiction of the cause, and the defendant was precluded, in his defense, from drawing the title in question. If the defendant had answered that the locus in quo was a public highway, this would have made a question of title. (6 Hill, 342. 15 Wend. 338. 19 id. 373.)

The justice erred, and the judgment of the county court must be affirmed.

[GENESEE GENERAL TERM, May 17, 1858. Grover, Marvin and Davis, Justices.]

COLE VS. THE TRUSTEES OF THE VILLAGE OF MEDINA,

Where no absolute and imperative duty is imposed upon a municipal corporation, by its charter, to make or repair sidewalks in the streets, or to cause them to be made and repaired, but if the owners of lots, after having been required by ordinances or by-laws to construct or repair a side-walk, or to keep it in repair, shall neglect or refuse to do so, the trustees are authorized to construct such sidewalk, or repair the same, at the expense of the lot owners; and in case any sidewalk shall become impassable, or, in the judgment of the trustees, dangerous, they are authorized to repair the same immediately; a discretion is conferred upon the corporation, and it is not responsible for a refusal to enact ordinances or by-laws, in relation to the repairing of side-walks; nor, if it enacts such ordinances or by-laws, is it liable for damages arising from a neglect to enforce them.

IN

N September, 1856, the plaintiff, while walking upon the sidewalk, in Mill street, in the village of Medina, late in the evening, stepped into an opening between the planks and fell, and her leg and ankle were broken. This action was brought to recover damages for such injury. It was proved that the sidewalk, along Mill street, was built in 1853, by the owners of the adjoining lots, in pursuance of an ordinance of the trustees of the village, requiring such sidewalk to be constructed. It was also found that the sidewalk, at the time of the injury, was much out of repair, and evidence was given tending to show that the trustees had had notice of, and knew, the condition of the walk. When the plaintiff rested, the court, on motion of the defendant, nonsuited the plaintiff, and she excepted. Judgment was entered for the defendant, and the plaintiff appealed to the general term.

De Puy & Bowen, for the plaintiff.

Sickels & Graves, for the defendants.

By the Court, MARVIN, J. The legislature, on the 10th of April, 1855, passed an act revising and amending the act of 1837, incorporating the village of Medina. The trustees of the village, among other powers, are authorized to pro

Cole v. Trustees of Medina.

vide for and open streets, and regulate the grading, paving, repairing and improving the same; to compel the owners of lots and grounds to construct sidewalks in front thereof, and to cover them with plank, or flag them with brick or stone, and keep the same in repair, and clear from snow or other obstruction. (Sess. Laws of 1855, p. 483, § 8.) The trustees are declared to be commissioners of highways. The act contains a special section relating to sidewalks. (§ 21.) If the owners of lots, after having been required, by ordinances or by-laws, in the manner specified in the act, to construct or. repair the sidewalk, shall neglect or refuse to construct the same, or keep it in repair, for 90 days, the ordinance or bylaw shall be published six weeks, and then the trustees are authorized to construct such sidewalks, or repair the same, in pursuance of any such ordinance, by-law or requirement, and the expenses are to be a tax upon the owner, and a lien upon his lots. By an act passed April 1, 1856, this section was so amended as to substitute 60 instead of 90 days, within which the owner is to construct or repair the sidewalk. And also providing, that "if at any time any sidewalk in front or along the side of any lot or grounds, in said village, shall become impassable or, in the judgment of the trustees of said village, dangerous, for any reason, they are hereby authorized to repair the same immediately," and collect of the owner of the lot the expenses.

After examining the cases cited by the plaintiff's counsel, I remain of the same opinion as at the circuit, viz: that the plaintiff cannot recover. The village of Medina is a municipal corporation. Its powers are mainly exercised by a board of trustees, upon whom the statute confers certain specific powers. Most of these powers are, in their nature, discretionary and legislative. The trustees have power to make and establish by-laws, to prevent and suppress vice and immorality, &c. They have power to provide for and open streets, &c., and to compel the owners of lots and grounds to construct sidewalks in front thereof, and keep the same in repair.

Cole v. Trustees of Medina.

The mode of proceedings is specially pointed out. It is by ordinances or by-laws requiring the owners of lots or grounds to construct or repair sidewalks in front, or along the side thereof. If the owner neglects for a certain time, then the trustees are authorized to construct such sidewalks, or repair the same, at the expense of the owner of the lots. And by the act of 1856, if the sidewalks shall become impassable, or, in the judgment of the trustees, dangerous, they are authorized to repair the same immediately, without waiting for the owner of the lot to make the repairs, and at the expense of the owner. All these powers are discretionary. There is no absolute and imperative duty imposed upon the trustees to make or repair the sidewalks. They cannot make them in the first instance; but if there are to be any sidewalks at all, the trustees must first act by ordinances or by-laws. They must legislate. They are to exercise discretion. They are not responsible for a refusal thus to enact ordinances or bylaws; or if they enact them in relation to sidewalks, they are not liable for a neglect to enforce them. In short, there is no imperative duty imposed by the act upon the village or the trustees, to make or repair sidewalks, or to cause them to be made or repaired. And I apprehend that very few of our villages would consent that an imperative duty should be imposed upon them to make, or cause to be made and kept in repair, their sidewalks; thus incurring taxation, often unnecessarily, as along many of the streets little used, artificial sidewalks are not required.

The inhabitants and taxpayers are content that trustees elected by them should have certain discretionary powers over them, relating to streets, sidewalks and a great variety of other matters. But it would be a great revolution, to change these numerous discretionary judicial powers into absolute ministerial duties, so as to render the corporation liable in an action for damages arising from any neglect to perform the specified work or act.

This case has no analogy to the case of The Mayor &c.