The opinion of the Court was delivered by
Rice, J.
The case is presented on exceptions and report. Two grounds for exception were presented. First, that the Court erred in declining to instruct the jury, that the plaintiff’s deed bounds him by the bank of the stream, and that it does not give him the rights of a riparian proprietor, so as to maintain this action for damages growing out of the change of the current of the water.
There will be found, on examination of the books, many technical rules by which to determine the effect of the descriptive terms of deeds, grants, &c., bounding lands upon rivers and other bodies of water. When, however, that sound and sensible principle of construction, that the intention of the parties must govern, is not overlooked in search of some more technical and recondite rule, there will, ordina[137]*137rily be found little difficulty in arriving at satisfactory results. It is competent for a proprietor to convey sucb portion of his estate as he may desire, and affix such boundaries to the estate alienated as he may deem expedient, by the use of apt words for that purpose.
Thus the owner of upland and flats connected, may sell his upland without the flats, or the flats without the upland, or both together. It has, however, been held, under a technical rule of construction, originating in the Colonial Ordinance of 1641, that where land was bounded “ on a stream, on the bank thereof, and on the bank of. the Penobscot river,” being tide water, the upland included in the description in the deed, not only passed, but the flats also, below high water mark, as appurtenant to the upland. Lapish v. Bangor, 8 Maine, 85. The same rule has prevailed in many other cases, both in this State and in Massachusetts.
The land, which is the subject of controversy in this case, lies upon the margin of a stream, in which, according to the testimony, the tide ebbs and flows, though the water is fresh. But this fact, according to the doctrine of the case above cited, is immaterial, the rule having reference rather to the question, whether the tide flows at the point in controversy, than to the fact that the water is salt or fresh.
If, then, the technical rule of the class of cases referred to were to be applied, the plaintiff’s lot would not only extend to the bank of the brook, and include the upland, but would also include the flats, if any, below high water mark. This construction, however, is not applicable to the case and would not comport with the obvious intention of the parties. The plaintiff is bounded by the bank of the brook. By this term is understood what contains the river in its natural channel when there is the greatest flow of water. 1 Bouvier’s Law Dict. The obvious intention was to include in the plaintiff’s deed the land to the margin of the stream, but not to include the stream itself or the bed thereof. The owner may sell the land without the privilege of the stream; as he will, if he [138]*138bounds his grant by the bank. Hatch v. Dwight, 17 Mass. 289.
The plaintiff’s land is, therefore, bounded by ordinary high water mark, and this principle will not be changed by the fact that the land or bank continues to rise more or less precipitously above that point. His land is not limited to the top of the hill or bank beside the stream, but extends to the margin of the stream, to that point where the bank comes in contact with the stream.
Such being the case, it is immaterial whether the plaintiff has the rights in the stream of an ordinary riparian proprietor or not. He has the right to the quiet enjoyment of his land, to its full extent, and, if by any unauthorized diversion of the stream from its natural channel, he has been injured, he is entitled to a legal remedy for such injury.
The next alleged error, on the part of the presiding Judge, was, that he declined to instruct the jury that, if they find that this road and bridge were legally laid out by the County Commissioners, and the defendants caused the bridge to be erected in pursuance of that laying out, they are not liable in this action, unless it was wantonly built so as to injure the plaintiff.
There seems to have been no question raised at the trial, controverting the legal establishment of the way upon which the bridge was built, which is the alleged cause of the plaintiff’s injury; nor that the bridge was constructed by the constituted authorities of the city, acting in their official capacity. The only question raised on this part of the case, has reference to the degree of care which the defendants were bound to use in the erection of the bridge. The Court instructed the jury, that the defendants would be liable in damages for injuries sustained from want of ordinary care. The defendants contended, that they would be liable only in case the bridge was wantonly built, so as to injure the plaintiff.
The laying out and establishing the way by the County Commissioners, was a judicial act, and was performed under [139]*139the same responsibilities as other acts of that character, which are judicial in their nature. But the construction of the way and the bridge thereon, by the city, through the intervention of its agents, were purely ministerial acts, and fall within an entirely different principle as to the degree of diligence required in the execution. In the latter case they, like private individuals, must proceed with ordinary care and diligence, and, if by the want of such care, private persons are injured, a remedy may be had’ for such injury by action at common law. Angell on Highways, § 221.
Under our statute, the duty is devolved upon highway surveyors, or road commissioners, to remove any obstacle, natural or artificial, which shall in anywise obstruct, or be likely to obstruct, or render dangerous the passage of any highway or town way. These officers are thus required to act, not only in a ministerial capacity, but also, to some extent, in a judicial capacity. They must not only remove obstructions, and make such repairs as are required to keep the ways under their jurisdiction, in such condition as to be safe and convenient, which is a merely ministerial duty, but they must determine, within certain limits, what repairs are necessary for the purpose, which determination partakes of a judicial character. And therefore, it has been decided, that if a highway surveyor dig down a street, or road, with discretion and not wantonly, no action at common law, under the general statute of the State, can be maintained against him. Hovey v. Mayo, 43 Maine, 322.
If the public safety, and convenience require a levelling of the road, the surveyor must do it with as much care in relation to property bordering on the road, as it is possible for him to use; and, if he should abuse his authority by digging down or raising up, when it might not be necessary for the reasonable repair and amendment of the road, he would be amenable to the suffering party for his damages. Callender v. Marsh, 1. Pick. 418.
Public officers, of every grade and description, may be impeached and indicted for official misconduct and corruption. [140]*140To this there is no exception, from the highest to the lowest. But the civil remedy, for misconduct in office, is more restricted, and depends exclusively upon the nature of the duty which has been violated.
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The opinion of the Court was delivered by
Rice, J.
The case is presented on exceptions and report. Two grounds for exception were presented. First, that the Court erred in declining to instruct the jury, that the plaintiff’s deed bounds him by the bank of the stream, and that it does not give him the rights of a riparian proprietor, so as to maintain this action for damages growing out of the change of the current of the water.
There will be found, on examination of the books, many technical rules by which to determine the effect of the descriptive terms of deeds, grants, &c., bounding lands upon rivers and other bodies of water. When, however, that sound and sensible principle of construction, that the intention of the parties must govern, is not overlooked in search of some more technical and recondite rule, there will, ordina[137]*137rily be found little difficulty in arriving at satisfactory results. It is competent for a proprietor to convey sucb portion of his estate as he may desire, and affix such boundaries to the estate alienated as he may deem expedient, by the use of apt words for that purpose.
Thus the owner of upland and flats connected, may sell his upland without the flats, or the flats without the upland, or both together. It has, however, been held, under a technical rule of construction, originating in the Colonial Ordinance of 1641, that where land was bounded “ on a stream, on the bank thereof, and on the bank of. the Penobscot river,” being tide water, the upland included in the description in the deed, not only passed, but the flats also, below high water mark, as appurtenant to the upland. Lapish v. Bangor, 8 Maine, 85. The same rule has prevailed in many other cases, both in this State and in Massachusetts.
The land, which is the subject of controversy in this case, lies upon the margin of a stream, in which, according to the testimony, the tide ebbs and flows, though the water is fresh. But this fact, according to the doctrine of the case above cited, is immaterial, the rule having reference rather to the question, whether the tide flows at the point in controversy, than to the fact that the water is salt or fresh.
If, then, the technical rule of the class of cases referred to were to be applied, the plaintiff’s lot would not only extend to the bank of the brook, and include the upland, but would also include the flats, if any, below high water mark. This construction, however, is not applicable to the case and would not comport with the obvious intention of the parties. The plaintiff is bounded by the bank of the brook. By this term is understood what contains the river in its natural channel when there is the greatest flow of water. 1 Bouvier’s Law Dict. The obvious intention was to include in the plaintiff’s deed the land to the margin of the stream, but not to include the stream itself or the bed thereof. The owner may sell the land without the privilege of the stream; as he will, if he [138]*138bounds his grant by the bank. Hatch v. Dwight, 17 Mass. 289.
The plaintiff’s land is, therefore, bounded by ordinary high water mark, and this principle will not be changed by the fact that the land or bank continues to rise more or less precipitously above that point. His land is not limited to the top of the hill or bank beside the stream, but extends to the margin of the stream, to that point where the bank comes in contact with the stream.
Such being the case, it is immaterial whether the plaintiff has the rights in the stream of an ordinary riparian proprietor or not. He has the right to the quiet enjoyment of his land, to its full extent, and, if by any unauthorized diversion of the stream from its natural channel, he has been injured, he is entitled to a legal remedy for such injury.
The next alleged error, on the part of the presiding Judge, was, that he declined to instruct the jury that, if they find that this road and bridge were legally laid out by the County Commissioners, and the defendants caused the bridge to be erected in pursuance of that laying out, they are not liable in this action, unless it was wantonly built so as to injure the plaintiff.
There seems to have been no question raised at the trial, controverting the legal establishment of the way upon which the bridge was built, which is the alleged cause of the plaintiff’s injury; nor that the bridge was constructed by the constituted authorities of the city, acting in their official capacity. The only question raised on this part of the case, has reference to the degree of care which the defendants were bound to use in the erection of the bridge. The Court instructed the jury, that the defendants would be liable in damages for injuries sustained from want of ordinary care. The defendants contended, that they would be liable only in case the bridge was wantonly built, so as to injure the plaintiff.
The laying out and establishing the way by the County Commissioners, was a judicial act, and was performed under [139]*139the same responsibilities as other acts of that character, which are judicial in their nature. But the construction of the way and the bridge thereon, by the city, through the intervention of its agents, were purely ministerial acts, and fall within an entirely different principle as to the degree of diligence required in the execution. In the latter case they, like private individuals, must proceed with ordinary care and diligence, and, if by the want of such care, private persons are injured, a remedy may be had’ for such injury by action at common law. Angell on Highways, § 221.
Under our statute, the duty is devolved upon highway surveyors, or road commissioners, to remove any obstacle, natural or artificial, which shall in anywise obstruct, or be likely to obstruct, or render dangerous the passage of any highway or town way. These officers are thus required to act, not only in a ministerial capacity, but also, to some extent, in a judicial capacity. They must not only remove obstructions, and make such repairs as are required to keep the ways under their jurisdiction, in such condition as to be safe and convenient, which is a merely ministerial duty, but they must determine, within certain limits, what repairs are necessary for the purpose, which determination partakes of a judicial character. And therefore, it has been decided, that if a highway surveyor dig down a street, or road, with discretion and not wantonly, no action at common law, under the general statute of the State, can be maintained against him. Hovey v. Mayo, 43 Maine, 322.
If the public safety, and convenience require a levelling of the road, the surveyor must do it with as much care in relation to property bordering on the road, as it is possible for him to use; and, if he should abuse his authority by digging down or raising up, when it might not be necessary for the reasonable repair and amendment of the road, he would be amenable to the suffering party for his damages. Callender v. Marsh, 1. Pick. 418.
Public officers, of every grade and description, may be impeached and indicted for official misconduct and corruption. [140]*140To this there is no exception, from the highest to the lowest. But the civil remedy, for misconduct in office, is more restricted, and depends exclusively upon the nature of the duty which has been violated. When that is absolute, certain and imperative, and every merely ministerial duty is so, the delinquent officer is bound to make full redress to every person who has suffered by such delinquency. Duties which are purely ministerial in their nature are sometimes cast upon officers whose chief functions are judicial. When this occurs and the ministerial duty is violated, the officer, although for most, purposes a judge, is civilly responsible for his misconduct. Wilson v. Mayor, &c., of New York, 1 Denio, 595.
The rights of the public in property are to be governed by the same rules of law as the rights of individuals, and the maxim sic utere tuo ut alienum non laedas, applies with equal force in the one case as in the other.
In the case under consideration, the laying out and establishing the way, was a judicial act, and was performed by the County Commissioners. The construction of that way, and the bridge thereon, was a purely ministerial act, and was devolved upon and performed by the city. It was not a case of ordinary repairs of a highway, falling within the jurisdiction of the road commissioners or highway surveyors, and for which they would be personally liable, but was performed by the agent of the city, acting under the supervision of the regularly constituted authorities of the city. For such acts the defendants are to be governed by the same rules of law as would private individuals, in the performance of acts of like ministerial character. The rule of law laid down by the presiding Judge, was applicable and appropriate for this class of eases, and not open to objection.
As to the motion. We have carefully examined the evidence reported, and though, if the case had been submitted to us for determination, upon the facts as therein presented, we might have come to a different conclusion, both upon the question of ordinary care and as to the amount of damages, yet we cannot say that the result is so manifestly incorrect as [141]*141to authorize us to interpose and set aside the judgment of the men to whom these questions were submitted, and whose duty it was to decide them.
No evidence has been adduced to show that the jury were influenced by prejudice and improper motives, and we do not think that there is such a preponderance of evidence as would authorize us to draw such an inference from the testimony in the case.
Exceptions and motion overruled, and Judgment on the verdict.
Tenney, C. J., and Appleton, Cutting, May, and Goodenow, J. J., concurred.