Beck, J.
1. water-division: pubiic use. The owner of land over which a stream of water flows has a right thereto without diversion, interruption or diminution of that element so indispensable to life, both animal and vegetaan(j so useful as a propelling power for machinery. The law recognizes a water-course as a subject of property, and guards the lights of owners thereof with the same care that it extends to all other things that are the subjects of exclusive ownership. The right which the owner of lands has to a water-course flowing over them is in the nature of a freehold right, and it cannot be taken from him constitutionally for public use without just compensation. Gardner v. Newburgh, 2 Johns. Ch. 162; Canal v. People, 5 Wend. 423; Ex parte Jennings, 6 Cow. 518; Platt v. Johnson, 17 Johns. 195; 2 Hilliard’s Real Property, 111.
This right, being thus secured by the Constitution and laws, cannot be indirectly taken away while protected from direct deprivation. The supreme power in the State cannot enact a law which will authorize the diminution or diversion of the stream from its natural channel for public purposes without providing adequate compensation for the right — the property to be so appropriated to public use.
2 officer: Jo"f dfscre4-8 tl0nIt surely cannot be claimed that a road supervisor is clothed with ’ such discretion, with such judicial duties and powers that he may divest or diminish the "water of a stream without rendering to the owner of the property compensation therefor ; yet such seems to be the view taken by the court below, and it is urged by defendant’s counsel in this court.
The plaintiif can have no remedy against the road dis[343]*343trict, township or county for the damage he has sustained ; unless the supervisor is liable, he is without remedy, and his right to the enjoyment of the water— his property therein — may be taken from him without compensation.
It is claimed, that the duties of the road supervisor are both ministerial and judicial to a certain extent; that he is clothed with discretion to determine what work is to be done, and must exercise his judgment as to the proper way to do it, and is not liable for mere error in judgment in the discharge of his duties. It indeed may well be doubted whether the courts and authorities do not often use the terms “judicial acts” and “judicial functions” in too broad a sense when applying them to those acts of officers which require the exercise of judgment and discretion. It appears that Lord Mansfield’s definition of the terms, confining them strictly to matters in litigation, is more nearly in accordance with the true force and meaning of the words. Medhurst v. Waite, 3 Burr. 1259. But regarding the duties of the supervisor as of mixed character, partly ministerial, partly quasi judicial, as these terms are now understood, we will have no difficulty in arriving at the conclusion, that the acts complained of by plaintiff are not of that judicial character that will exempt him from all liability for negligence and carelessness in their performance; in truth, the acts com'plained of, and which caused the damage for which compensation is sought in the suit, were of a purely ministerial character. It must be borne in mind that, the fact of an officer being clothed with discretion in the discharge of a duty as to the manner of its performance, or as to the control of circumstances and attendant acts necessarily arising in the discharge of such duty, will not give to it a judicial character. It is impossible to conceive of any ministerial duty to be performed by an [344]*344officer that may not be, that is not, accompanied by circumstances which require the exercise of judgment and discretion.
A familiar illustration will probably more clearly express the idea. A sheriff, whose duties are of a purely ministerial character, is required by a fieri facias, to make a levy thereof of the goods of the defendant therein, and sell the same, or so much thereof, as may be necessary, and return the writ, with the proceeds, into court. The acts which he is required to do, are the levy, sale and return; in regard to these acts the writ is peremptory, and he has no discretion and can exercise no judgment to do, or not to do them. The manner of performing these acts are mainly pointed out by the law, yet much is left to the officer’s discretion and judgment. The time within which the acts are to be done, is prescribed by the writ, the kind- and quantity of property to be levied upon, within certain limits, is prescribed by the law; but neither the writ nor the law, directs where, or in what manner, many acts necessary to be done, in order fully to discharge his duty, shall be performed. 'In the performance of these, he exercises discretion and judgment, and is liable for errors and mistakes that may result in loss to others, though they were the result of the deliberate exercise, in good faith, of such discretion and judgment. In short, he has no discretion, and can exercise no judgment, in regard to the end to be attained by his discharge of duty; as to the means and manner of accomplishing the end, he, of necessity, must be more or less free to choose, for it is impossible for the law to provide rules adapted to the infinite variety of human actions and attendant circumstances that may be met by its ministers. A supervisor of roads being required, in the discharge of his duty, to largely exercise discretion and judgment, does not, therefore, necessarily discharge judicial functions.
[345]*345There can be no great difficulty in determining, when an officer is charged with both judicial and ministerial duties, to which class of duties a particular act belongs.
The character of the act itself, will usually determine whether it be judicial or ministerial. If it be the execution of a determination, committed by the law to the judgment and discretion of the officer, which could be as well done by another as by the one thus clothed with the power of determination, it is a ministerial act. The fact, that it requires skill, and involves judgment and discretion, will not give it a judicial character.
The proper performance of grading, ditching, and the construction of masonry, though they may require the highest order of engineering and mechanical skill, and demand the exercise of a high order of judgment in the selection of materials, and of discretion in the choice of means, cannot be regarded as the discharge of judicial functions. But the determination, that such work is necessary, and must be accomplished, may properly be said to partake of a judicial character.
3. Watercourse ; highway: ofteer. This brings me to the application of these principles to to the case at bar. The defendant, as supervisor of roads, is required, by law, to keep the highways in repair; he determines whén and where repairs are necessary, and what work shall be done in order to effect the repairs. The determination may be regarded as of a judicial nature.
lie also is required to direct the work, to make the repairs he has determined upon; this is simply a ministerial duty. These views are sustained in Lacour v. Mayor of New York, 3 Duer, 406; Lloyd v. Mayor, etc. of New York, 1 Selden, 369; City of Camden v. Mulford, 2 Dutcher, 56; The Rochester White Lead Co. v. The City of Rochester, 3 Comst. 466.
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Beck, J.
1. water-division: pubiic use. The owner of land over which a stream of water flows has a right thereto without diversion, interruption or diminution of that element so indispensable to life, both animal and vegetaan(j so useful as a propelling power for machinery. The law recognizes a water-course as a subject of property, and guards the lights of owners thereof with the same care that it extends to all other things that are the subjects of exclusive ownership. The right which the owner of lands has to a water-course flowing over them is in the nature of a freehold right, and it cannot be taken from him constitutionally for public use without just compensation. Gardner v. Newburgh, 2 Johns. Ch. 162; Canal v. People, 5 Wend. 423; Ex parte Jennings, 6 Cow. 518; Platt v. Johnson, 17 Johns. 195; 2 Hilliard’s Real Property, 111.
This right, being thus secured by the Constitution and laws, cannot be indirectly taken away while protected from direct deprivation. The supreme power in the State cannot enact a law which will authorize the diminution or diversion of the stream from its natural channel for public purposes without providing adequate compensation for the right — the property to be so appropriated to public use.
2 officer: Jo"f dfscre4-8 tl0nIt surely cannot be claimed that a road supervisor is clothed with ’ such discretion, with such judicial duties and powers that he may divest or diminish the "water of a stream without rendering to the owner of the property compensation therefor ; yet such seems to be the view taken by the court below, and it is urged by defendant’s counsel in this court.
The plaintiif can have no remedy against the road dis[343]*343trict, township or county for the damage he has sustained ; unless the supervisor is liable, he is without remedy, and his right to the enjoyment of the water— his property therein — may be taken from him without compensation.
It is claimed, that the duties of the road supervisor are both ministerial and judicial to a certain extent; that he is clothed with discretion to determine what work is to be done, and must exercise his judgment as to the proper way to do it, and is not liable for mere error in judgment in the discharge of his duties. It indeed may well be doubted whether the courts and authorities do not often use the terms “judicial acts” and “judicial functions” in too broad a sense when applying them to those acts of officers which require the exercise of judgment and discretion. It appears that Lord Mansfield’s definition of the terms, confining them strictly to matters in litigation, is more nearly in accordance with the true force and meaning of the words. Medhurst v. Waite, 3 Burr. 1259. But regarding the duties of the supervisor as of mixed character, partly ministerial, partly quasi judicial, as these terms are now understood, we will have no difficulty in arriving at the conclusion, that the acts complained of by plaintiff are not of that judicial character that will exempt him from all liability for negligence and carelessness in their performance; in truth, the acts com'plained of, and which caused the damage for which compensation is sought in the suit, were of a purely ministerial character. It must be borne in mind that, the fact of an officer being clothed with discretion in the discharge of a duty as to the manner of its performance, or as to the control of circumstances and attendant acts necessarily arising in the discharge of such duty, will not give to it a judicial character. It is impossible to conceive of any ministerial duty to be performed by an [344]*344officer that may not be, that is not, accompanied by circumstances which require the exercise of judgment and discretion.
A familiar illustration will probably more clearly express the idea. A sheriff, whose duties are of a purely ministerial character, is required by a fieri facias, to make a levy thereof of the goods of the defendant therein, and sell the same, or so much thereof, as may be necessary, and return the writ, with the proceeds, into court. The acts which he is required to do, are the levy, sale and return; in regard to these acts the writ is peremptory, and he has no discretion and can exercise no judgment to do, or not to do them. The manner of performing these acts are mainly pointed out by the law, yet much is left to the officer’s discretion and judgment. The time within which the acts are to be done, is prescribed by the writ, the kind- and quantity of property to be levied upon, within certain limits, is prescribed by the law; but neither the writ nor the law, directs where, or in what manner, many acts necessary to be done, in order fully to discharge his duty, shall be performed. 'In the performance of these, he exercises discretion and judgment, and is liable for errors and mistakes that may result in loss to others, though they were the result of the deliberate exercise, in good faith, of such discretion and judgment. In short, he has no discretion, and can exercise no judgment, in regard to the end to be attained by his discharge of duty; as to the means and manner of accomplishing the end, he, of necessity, must be more or less free to choose, for it is impossible for the law to provide rules adapted to the infinite variety of human actions and attendant circumstances that may be met by its ministers. A supervisor of roads being required, in the discharge of his duty, to largely exercise discretion and judgment, does not, therefore, necessarily discharge judicial functions.
[345]*345There can be no great difficulty in determining, when an officer is charged with both judicial and ministerial duties, to which class of duties a particular act belongs.
The character of the act itself, will usually determine whether it be judicial or ministerial. If it be the execution of a determination, committed by the law to the judgment and discretion of the officer, which could be as well done by another as by the one thus clothed with the power of determination, it is a ministerial act. The fact, that it requires skill, and involves judgment and discretion, will not give it a judicial character.
The proper performance of grading, ditching, and the construction of masonry, though they may require the highest order of engineering and mechanical skill, and demand the exercise of a high order of judgment in the selection of materials, and of discretion in the choice of means, cannot be regarded as the discharge of judicial functions. But the determination, that such work is necessary, and must be accomplished, may properly be said to partake of a judicial character.
3. Watercourse ; highway: ofteer. This brings me to the application of these principles to to the case at bar. The defendant, as supervisor of roads, is required, by law, to keep the highways in repair; he determines whén and where repairs are necessary, and what work shall be done in order to effect the repairs. The determination may be regarded as of a judicial nature.
lie also is required to direct the work, to make the repairs he has determined upon; this is simply a ministerial duty. These views are sustained in Lacour v. Mayor of New York, 3 Duer, 406; Lloyd v. Mayor, etc. of New York, 1 Selden, 369; City of Camden v. Mulford, 2 Dutcher, 56; The Rochester White Lead Co. v. The City of Rochester, 3 Comst. 466.
The defendant, in the case at bar, saw fit to change the [346]*346crossing of the stream, by dispensing with a bridge which had before been used, and erecting an embankment and culvert. Whatever rights the public had acquired, to cross the stream by user, and by acquiescence of the plaintiff, were confined to the use of the bridge, or such other manner of crossing as would interfere in no greater degree with the rights of plaintiff to the water, than did the bridge. ,The act of thus changing the manner of crossing the stream was ministerial in its nature, and it was the defendant’s absolute duty so to perform it that plaintiff should not be injured thereby. The Rochester White Lead Co. v. The City of Rochester, 3 Comst. 463; The City of Camden v. Mulford, 2 Dutcher, 56.
The liability of a road supervisor, for injuries sustained by another, on account of the negligent and improper erection of a culvert over a stream of water, was recognized in Conwell v. Emrie (4 Ind. 209), a case very similar in facts to the one at bar.
4. corporation* municipal. The powers of road supervisors are similar to those exercised by cities, through their officers and agents, in &rading, paving, and otherwise improving streets. They derive their powers from the same source, and exercise them for the same purpose, and in reason, each must be subject to the same -liabilities for their improper or careless exercise. Such powers, and their correlative duties, are of the same quasi judicial ' nature, when exercised by cities or towns, and by supervisors. The doctrine is recognized in very many authorities found in the books, that cities and towns are liable for negligent and careless construction of improvements and repairs of streets. Such have been the frequent rulings of this court. Wallace v. Muscatine, 4 G. Green, 373; Creal v. Keokuk, id. 47; Cotes & Patchin v. Davenport, 9 Iowa, 233; Freeland v. Muscatine, id. 461; Templin v. Iowa City, 14 id. 60. The doctrine of [347]*347these cases must be applicable to the question of the liability of road supervisors, at least, so far as to determine, that they are not exempt, on account of the quasi judicial nature of their duties and powers.
It follows, that the first, second and fourth instructions, asked for by plaintiff, should not have been refused. If they fail to announce the law correctly, they do so in giving it too favorably for defendant.
The instructions given the jury on the motion of defendant, and the amendment to plaintiff’s first instruction, are erroneous in the light of the principles above stated.
5. mamce: pieadmg. It is claimed, by defendant’s attorney, that, inasmuch as plaintiff', in his petition, avers that the acts complained °f were willfuly and maliciously done, recovei.y cannot be had for careless and negligent acts, but only for such as were proven to have been willful and malicious, and this seems to have been the principle that guided the court below in giving and refusing instructions.
If the defendant is liable for negligent and careless acts, recovery may be had against him upon the petition charging the acts to have been willful and malicious, without proof of malice. This was the rule under the old system of pleading, which was more strict in its requirements that the proof should correspond with the allegations of the declaration, than is our present system. It is held, that the allegations of malice and willfulness may be disregarded as surplusage and proof given of negligence and carlessness. 1 Chitty’s Pleadings, 424; 1 Hilliard on Torts, 138; Panton v. Holland, 17 Johns. 92.
6.-may be inferred. The court erred in refusing the sixth instruction asked by plaintiff, which is to the effect, that the jury may infer malice on the part of the defendant if they were satisfied from his acts that he designed to injure the plaintiff. There is no clearer rule of evidence [348]*348than that malice may be inferred from the acts of a party. If those acts of the defendant were of such a character as to convince the jury that injury was designed to plaintiff, they were bound to infer malice. Malice is defined to be a disposition, a design to injure another. It is properly inferred from the acts of a party, indeed, is most usually so proven.
7. watercourse: diversion. The third instruction of plaintiff should have been given to the jury. It does not appear from the evidence that plaintiff had abandoned his right to have *• ° , all the water of the stream flow through its natural channel upon his land, or that he had in any way been deprived of that right. He had, therefore, lawful authority to dam up the ’ artificial channel and thus restore the flow of water to its natural channel. The defendant had no right to divert the water from the natural channel and restore the artificial channel. If, in doing so, plaintiff sustáined damage, he is liable therefor.
The other objections to the ruling of the court below need not be considered, as the case must, for the reason already given, be reversed. , ■
Reversed.
8. officer: imbiiity. Dillon, Ch. J. — I have had in my own mind so much difficulty respecting the main question in this case, viz., the personal responsibility of the road super-vigor, that I desire to state briefly why I assent to a reversal of the judgment of the District Court. If the act of the supervisor which caused the inj ury were malicious, I should, of course, entertain no doubt as to' Ms liability.
But the doubt I have had respects his liability for injuries not willfully or maliciously caused by him. That the road supervisor is exempt from liability for certain mistakes of judgment, honestly made in the per[349]*349formance of his official duties, I have no question. If his acts be not strictly judicial, they are in certain cases (as for example, the kind of a bridge he will build or th^ requisite capacity of a culvert) in the nature of judicial., acts, and rest to some extent upon the same principled The supervisor is bound to accept his office or be finer'He is bound to exercise his judgment as to the kind improvements he will make; and this may be influence' by the extent or amount of means or resources at his command. He may not in many cases be able to execute his best thought or judgment. To a certain extent, he must be free to exercise his judgment without being liable to have an action brought against him if his judgment should in a particular case turn out to be faulty.
But private rights of property are also to be respected. A very old and just maxim of the law is, that where there is a wrong, there is a remedy. The law recognizes, as is very correctly stated in the opinion of Mr. Justice Beck, as high a right of property in the water-course as in the soil. If an individual obstructs or diverts a watercourse, the injury is actionabie. So it is if done by a municipal corporation. Whether the public officers of such corporation who do the work which occasions the damage in the course of their official duties, are also liable, admits, in' my mind, of more doubt.
The injury of which the plaintiff complains is actionable in its character; but against whom shall the action be brought ?
It cannot be brought against the road (district of which the defendant is supervisor, because, as was settled in White v. The Road District (9 Iowa, 202), the road district is not, under our statute, liable to be sued as a quasi corporation or otherwise. For the same reason, it cannot be brought against the township.
[350]*350And it would seem, that under the decisions of this court (Wilson v. Jefferson Co., 13 Iowa, 182; Brown v. Jefferson Co., 16 id. 339; McCullom v. Black Hawk Co., 21 id. 409; Bell v. Foutch, id. 129), the bridge or culvert in question, not being built by the county officers or by direction of the county authorities, so far as shown by the record, the county would not be liable for the injury the plaintiff sustained from the obstruction or diversion of the water-course.
So that, although the injury done the plaintiff is a direct invasion of his rights of property, and actionable-in its nature, he is without remedy, unless it be against the defendant. In such a case, upon principles of justice, the action should, I think, be held to lie against the public officer.
And the principle involved in this holding, and which, upon the whole, I believe to be sound, is this: That where a public officer other than a judicial one, does an act directly invasive of the private rights of others, and there is otherwise no remedy for the injury, such officer is personally liable without proof of malice and an intent to injure. If this is so, the court erred in its instructions to the jury, and its judgment must be reversed.
Whether the supervisor would be liable if the plaintiff had a remedy against the road district, township or county, I give no opinion.
The discretion which protects such an officer as the road supervisor stops at the boundary where the absolute rights of property begin. Suppose the plaintiff had a mill upon the stream, would it do to hold, that the road officers could if they saw fit or judged best, entirely obstruct or essentially diminish the water ?
I think not. And this view has the merit of protecting the rights of property without, as I think, placing these officers under any oppressive responsibility. Cases, [351]*351without merit against an officer who had simply erred in judgment would not meet with any favor from either courts or juries.