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tion is that, because the lessor gave certain pard v. Nixon, 43 N. J. Eq. 632, 13 Atl. 617: easements in that part of the 13.52 acres not ‘Under this statute, possession in fact, as in terms demised, and particularly an ease- distinguished from that constructive possesment in the water lying on and flowing sion which in ejectment suits arises in virtue through the larger tract, he really demised of the legal title, is essential to the jurisdicthe whole. The cases that he cites prove tion of the court.' And, further on, he says: just the opposite. Thus, in Perrine y. Berg- 'The defendant having in his answer made en, 14 N. J. Law, 355, 27 Am. Dec. 63, Jus- denial of possession by complainant, it was tice Ford says: 'Even an easement works incumbent on complainant to establish that no dispossession of the owner. The posses- fact by proof. Here the complainant has sion still remains in him, as much as if the not attempted to establish possession in fact easement did not exist.' And in Burnet v. of the part not demised. It has not been in Crane, 56 N. J. Law, 285, 28 Atl. 591, 44 the joint occupation of the land, and it has Am. St. Rep. 395, an ejectment suit, the Chan- not participated in the issues of it. The cellor, speaking for the Court of Errors and

proofs, if they show anything, show that deAppeals, says: "The right to a fee and the fendants have, as far as lay in their power, right to an easement in the same estate are excluded complainant from the possession rights independent of each other, and may and refused in any way to recognize its title. well subsist together when vested in differ- Under these circumstances it seems to me ent persons. Each can maintain an action that for this court to assume jurisdiction to vindicate and establish his right,' etc. This would be to disregard the rule laid down by last case is conclusive authority on the point the Court of Errors and Appeals in Shepthat ejectment may be brought notwithstand

pard v. Nixon. As complainant's title deing the existence of an easement. Now I

pends upon the proper construction of the am quite unable to find in the lease anything will of Richard I. De Gray, and does not apthat gives more than an easement in so pear to hinge on any disputed question of much of the entire tract as is not the sub

fact, it might be a convenient thing for this ject of specific demise. This being so, I do court to construe this will, just as it might not see why ejectment may not be brought have been a convenient thing for this court, in respect of the land not included in the

in the first instance, to have construed the demise. The practice act makes provision

deed in the Pipe Line Case (Pipe Line Co. v. for the case of a person suing for an undivid

Delaware, Lackawanpa & Western Railroad ed part. If complainant sues for an un- Co., 62 N. J. Law, 254, 41 Atl. 759), but, actdivided one-sixth of the land not demised,

ing under the well-settled rule it declined to and is able to prove his title to it, he will

take jurisdiction until the legal question was have judgment. Section 24 of the ejectment first settled. After that was done, it applied act (2 Gen. St. 1895, p. 1285), requires the

the equitable remedy. Delaware, Lackawandefendant, if he denies ouster, to admit the

na & Western Railroad Co. v. Breckenridge, right of the plaintiff to an undivided share,

57 N. J. Eq. 154, 41 Atl. 966; Breckenridge stating what share. If the admission is made

V. Delaware, L. & W. R. Co., 58 N. J. Eq. in terms satisfactory to the plaintiff, he at

581, 43 Atl. 1097. No distinction has been tains the object of his suit, and may then

taken in this state between questions of conproceed with his case here. If the admission

struction of documents and questions of fact is only of a less interest than plaintiff claims,

in dispute. The Court of Errors and Apthe case will be tried at law, and the court

peals has very recently applied the rule to of law will determine the amount of the in

partition cases (Slock bower v. Kanouse, 50 terest. The plaintiff,' says Justice Haines,

N. J. Eq. 481, 26 Atl. 333), and the Chancellor, in Combs v. Brown, 29 N. J. Law, 36, 44,

in a still later case (Hanneman v. Richter, 'can only recover such part of the premises

62 N. J. Eq. 366, 50 Atl. 904), had under conas his proofs have shown him entitled to, and

sideration a partition depending upon the if it appears that he is entitled to an un

construction of a will, divided part, he shall have verdict and judg.

"I am at a loss to see why the cases cited ment for such part.'

do not apply to this case. If I am wrong in "But the complainant says, further: “We

my conclusions, the court of review will have are in possession for the reason that the de

before it all the facts, and can finally dispose fendants are in possession. The possession of

of the whole matter." one tenant in common is the possession of all, Being in possession, we cannot bring eject- Preston Stevenson and Gilbert Collins, for ment.' If possession always followed the appellants. John B. Humphreys, for respondtitle, then ejectment would not be possible

ent. as between tenants in common-a proposi. tion, of course, untenable. The fact in this PER CURIAM. The decree appealed from case is undeniable that, aside from its con- is affirmed, for the reasons stated in the opinstructive possession of that part which has ion delivered in the court of chancery by been under lease the complainant has had Vice Chancellor Stevens, on the hearing of no possession in fact. Actual possession is the cause, and in the supplemental opinion essential to the jurisdiction under the act to delivered by him on the application for a


et al. (Court of Errors and Appeals of New Jersey.


A municipal corporation is not liable for the acts of a board of health created by public statute for the public benefit, even though its members are appointed by the municipal authorities.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $ 1569; Dec. Dig. 8 74542.*) 2. HEALTH ($ 18*)-BOARDS OF HEALTH-LIABILITIES– ESTABLIŞUMENT OF QUARANTINE.

The members of a board of health, acting in performance of a public duty under a public statute to prevent the spread of an infectious or contagious disease, are not personally liable in a civil action for damages arising out of their acts in establishing a quarantine, even where the disease does not actually exist, provided they act in good faith.

[Ed. Note.-For other cases, see Health, Cent. Dig. $ 16; Dec. Dig. $ 18.*) 3. CONSTITUTIONAL LAW (8 200*)—PERSONAL LIBERTY ACTIONS AGAINST BOARD OF HEALTH.

Section 15 of the board of bealth act (Gen. St. 1895, p. 1038), which forbids suits against the board, its officers or agents, unless upon proof that the board acted without reasonable and probable cause to believe that the alleged cause of disease was in fact prejudicial and hazardous to the public health, does not infringe the constitutional provisions protecting private property and individual liberty.

(Ed. Note.--For other cases, see Constitutional Law, Dec. Dig. $ 299.*] 4. HEALTH (8 19*)-BOARDS OF HEALTH-A0TIONS AGAINST.

Section 15 of the board of health act (Gen. St. 1895, p. 1038) in effect gives an action against the board upon proof of the facts there in set forth, but in such suits the question of reasonable and probable cause is for the court.

[Ed. Note.-For other cases, see Health, Dec. Dig. $ 19.* ]

(Syllabus by the Court.)

antined. The replication denied that the board of health had reasonable and probable cause to believe that the plaintiff's daughter was suffering from scarlet fever, and tender. ed issue thereon.

At the trial, upon the plaintiff's opening that the board of health acted without any authority at all of the city, a nonsuit was or. dered in favor of the city of Englewood. The case proceeded against the board of health and the individual defendants.

The evidence showed that the city physician, one of the defendants, reported to the board of health a case of scarlet fever at the plaintiff's residence; and that at a con. sultation between Dr, Currie, of Englewood, and Dr. Bulkley, of New York City, the two latter stated that the case was not scarlet fever; that four local physicians were of opinion, from a statement of symptoms and without seeing the patient, that the case was scarlet fever. The city physician informed the plaintiff, at first by verbal notice, that the house was to be quarantined, and apparently gave the plaintiff the option to have a strict quarantine of the whole house estab lished, or a quarantine of his daughter and ber attendant in one room of the house. The plaintiff, in order to secure proof as to who was responsible, demanded a written notice; and thereupon such a notice was served, sign. ed by the secretary of the board of health, in which the option of having the child and her attendant quarantined in a separate room, or of having the entire house and occupants quarantined, was again given to the plaintiff. He declined to avail himself of the option, a card was placed upon his office door indicating that there was scarlet fever on the premises, and measures were taken by the board of health to fumigate the house. There seems to have been nothing further done by way of enforcing the quarantine. When the plaintiff was asked what kept him in quarantine, what was done, and who did it, his only answer was that the health inspector came and fumigated the house.

The board of health had adopted ordinances, pursuant to the statute, providing that persons affected by certain diseases, of which scarlet fever was one, should be isolated, quarantined, or removed to such a locality as the board might order and direct; and that buildings and property, which might become infected, should be disinfected or de stroyed; and that the board might establish such separation and isolation or domestic quarantine of the sick from persons not necessary as attendants as should be needed in order to prevent the spread of the disease.

Adolph L. Engelke, Harry B. Brockhurst, and Peter W. Stagg, for plaintiff in error. Albert C. Wall and Charles W. Hulst, for defendants in error.

Error to Supreme Court.

Action by Daniel W. Valentine against the City of Englewood and others. Judgment for defendants, and plaintiff brings error, Affirmed.

The declaration contains counts in trespass quare clausum fregit, for false imprisonment, and for libel. The defendants plead in justification that there were 30 cases of scarlet fever in the city of Englewood, and that the board of health had reasonable and probable cause to believe that the plaintiff's daughter was ill of the disease, and thereupon caused the plaintiff to be notified that they had declared his house quarantined, and that had the option to place his child and her attendant in strict quarantine in a separate room, and to have the contents of the house fumigated by the board of health, or to have the entire house and occupants quar

SWAYZE, J. (after stating the facts as of New York, 62 N. Y. 160, 20 Am. Rep. 468; above). We find it convenient to deal first Felch y. Weare, 69 N. H. 617, 45 Atl. 591. with the liability of the city of Englewood. The city could only be held by applying the

The precise question involved is new in this rule respondeat superior, and that rule has court. In Kehoe v. Rutherford, 74 N. J. Law, no application in a case where the persons 659, 65 Atl. 1046, there was active wrongdo. who commit the act complained of are neithing by the inunicipal authorities in collecting er the servants nor agents of the municipal surface water and discharging it so that it corporation, nor acting in the performance injured the plaintiff's land, but that act was of any corporate duty. So far as their act the act of the corporation itself for a special is outside the limits of the corporate duty of corporate purpose. A distinction is made in the municipality, it cannot be considered the the cases in other jurisdictions between such act of the municipality. 2 Dillon (3d Ed.) 88 acts and acts done in performance of a gov- 968-974. The case is not altered by the fact ernmental function in execution of powers of that the court excluded the question whetha public and general character, delegated to

er the records of the common council showed the municipality for the welfare and protec- any action on their part in regard to the tion of its inhabitants or the general public. quarantining of the plaintiff. At that time of the numerous cases collected in 28 Cyc. the nonsuit had already been ordered, and 1257, it will suffice to refer to Daly v. New

nothing was said to indicate that the offer was Haven, 69 Conn. 644, 38 Atl. 397; Colwell v.

to show anything that would conflict with the Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. statement of plaintiff's counsel in bis openR. A. 218; Hourigan v. Norwich, 77 Conn.

ing that the board of health acted without 358, 59 Atl. 487; Hafford v, New Bedford, 16

any authority from the city. It is not neces. Gray (Mass.) 297; Fisher V. Boston, 104

sary, therefore, to consider whether the liaMass. 87, 6 Am. Rep. 196; Manners v. Hav

bility of the city would have been different

The erhill, 135 Mass. 165; Clark v. Easton, 146

is express authority had been shown. Mass. 43, 14 N. E. 795; Maxmilian v. Mayor,

evidence, moreover, becomes quite immaterial

in view of other considerations to be stated. etc., of New York, 62 N. Y. 160, 20 Am. Rep.

No liability of the city was shown, and in 468. These cases have been followed by our

tbat respect the ponsuit was right. Supreme Court in Tomlin v. Hildreth, 65 m.

The statute creating the board of health w Law, 438, 47 Atl. 649. A more recent case

authorizes it to adopt ordinances to prevent is Cunningham v. Seattle, 42 Wash. 134, 84

the spreading of dangerous epidemics or conPac. 641, 4 L. R. A. (N. S.) 629; 7 Am. & Eng.

tagious diseases, and to maintain and enforce Ann. Cag. 805, in a note to which numerous

sufficient quarantine when it deems necescases as to the nonliability of a municipality

sary. Gen. St. 1895, p. 1644, § 49. The board for acts of its firemen are collected.

is required by section 13 to examine into all The principle has been frequently applied

causes of disease injurious to the health of to the acts of boards of health. Summers

the inbabitants, and to cause the same to be v. Daviess County, 103 Ind. 262, 2 N. E. 723,

removed and abated. Section 15 enacts that 53 Am. Rep. 512; Mitchell v. Rockland, 52 Me.

no suit shall be maintained in any of the 118; Nicholson v. Detroit, 129 Mich. 246, 88

courts of this state to recover damages N. W. 695, 56 L. R. A. 601; Bryant v. St.

against any such board, its officers or agents, Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep.

on proceedings had by them to abate and re31; Lowe v. Conroy, 120 Wis. 151, 97 N. W.

move a cause of disease, unless it shall be 942, 66 L. R. A. 907, 102 Am. St. Rep. 983.

shown in such suit that the cause of disease It seems to be founded in reason,

did not exist, was not hazardous and prejThe acts complained of by the plaintiff udicial to the public health, and that the were in performance of a governmental func- board acted without reasonable and probable tion imposed upon the board of health by the cause to believe that such cause was in fact Legislature, under a special statute relating prejudicial and hazardous to the public to boards of health, for the benefit of the health. public at large. The duty was quite inde- The evidence in the present case justified pendent of any provisions of the city charter, an inference on the part of the jury that and was in no way for the benefit of the city scarlet fever did not in fact exist; and, as in its corporate capacity, or as the owner of the trial judge nonsuited the plaintiff, his property. The only connection, under the ruling cannot be vindicated, if the actual exstatute, between the city and the board of istence of the disease is essential to the jushealth, is that the members of the board of tification of the defendants. The issue joinhealth are appointed by the governing body ed upon the pleadings was only wbether there of the city. This, however, did not make existed reasonable and probable cause to be them the servants or agents of the city; they lieve that the defendant's daughter was sick were public officers, notwithstanding the with scarlet fever, but it would be taking method of their appointment. Hafford v. too narrow a view of the case to decide it New Bedford, 16 Gray (Mass.) 297; Fisher upon this question of pleading only. We V. Boston, 104 Mass. 87, 6 Am. Rep. 196; prefer to rest the decision upon broader Murphy v. Inbabitants of Needham, 176 Mass. grounds.

Lawrence, 21 N. J. Law, 248, and on appeal, ment upon a state of facts, the conclusion 21 N. J. Law, 714, 47 Am. Dec. 190, and 23 from which may be doubtful or difficult. N. J. Law, 590, 57 Am. Dec. 420, it was held In the discussion which arose after the dein the Supreme Court, in a very able opinion cision of the famous case of Ashby v. White, by Chief Justice Green, that the defendant, 1 Smith's Leading Cases (7th Am. Ed.) 455, who, as mayor of New York City, had de- it was expressly stated in the argument prestroyed real and personal property in order pared by the committee of the House of to stop the spread of a great fire, was not to Lords, which was principally drawn up by be held responsible, since he acted in pur. the Lord Chief Justice, that fraud and malice suance of a duty imposed upon him by stat- were the gist of the action. The language ute, and not for private emolument or for his quoted on page 484 is: “There is no danger individual benefit. Chief Justice Green said: to an honest officer that means to do his "It is a well-settled principle that where a duty; for where there is a real doubt touchperson in discharge of a public duty, not ing the party's right of voting, and the offiacting for private emolument, unwittingly in- cer makes use of the best means to be injures another in the performance of the act, formed, and it is plain bis mistake arose while acting with due skill and caution, he from the difficulty of the case, and not from is not answerable for damages.” The judg- any malicious or partial design, no jury will ment was reversed in this court, upon the find an officer guilty in such a case, nor can ground that the statutes of New York provid- any court direct them to do it, for it is the ed no compensation for the personal property fraud and the malice that entitles the party destroyed, that the facts amounted to a tak- to the action." In that case fraud and maling of property for public use without com- ice were averred in the declaration. Some pensation, and the case was therefore within American courts have gone so far as to hold the prohibition of our state Constitution. that the officer is exempt even in a case of The case afterwards came before the Su- corruption and malice. Spalding v. Vilas, preme Court on a demurrer to amended pleas, 161 U. S. 483, 493, et seq., 16 Sup. Ct. 631, and the judgment there rendered in favor of 40 L. Ed. 780, which was an action against the defendant was affirmed in this court. 23 the Postmaster General. Weaver v. DevenN. J. Law, 590, 57 Am. Dec. 420. Justice dorf, 3 Denio (N. Y.) 117, which was an acCarpenter, in the course of his opinion took tion against an assessor for loss caused by occasion to say, at page 600 of 23 N. J. Law an illegal assessment. Where there is no (57 Am. Dec. 420): "A public officer, acting fraud or malice, the overwhelming weight of in good faith, upon a sudden and alarming authority is in favor of the exemption of the emergency, under the sanction of a constitu- public officer from civil action, and the cases tional and valid law in a matter of public are not limited to officers acting in a judicial duty, is not to be held responsible for the capacity, but reach the case of all who are unavoidable and necessary result of such act called upon in behalf of the public to exerof duty. An injured party may have a right cise their judgment. Thus it was held in to resort to the public for satisfaction, but Otis v. Watkins, 9 Cranch, 339, 3 L. Ed. 752, the law has ever held that the officer, him- that a collector of a port detaining a vessel self, not exceeding his power and not guilty under the embargo law of 1808 (Act Cong. of oppression or bad faith, is not personally April 25, 1808, c. 66, 2 Stat. 499) need not liable.” He quotes with approval what was show that his opinion that the vessel was said by Justice Nevius in Sinnickson V. John- about to violate the law was correct, nor that son, 17 N. J. Law, 150, 34 Am. Dec. 184, he used reasonable care and diligence in aswhere a distinction was drawn between acts certaining the facts upon which his opinion done exclusively for the public interest by was formed. It was said to be enough that agents appointed by public authority acting he honestly entertained the opinion upon within the scope of that authority, and acts which he acted; and, although Chief Justice done for a private and individual interest. Marshall dissented, he did not question this Justice Carpenter limits the exemption of general principle, but placed his dissent upon public officers to acts done under the sanction entirely different grounds. The same view of a constitutional and valid law, but, at the was expressed in Kendall v. Stokes, 3 How. same time, quotes Chancellor Kent as ex- 87, 11 L. Ed. 506. In New York, it was held, tending the exemption to acts done under in Williams v. Weaver, 75 N. Y. 30, that asstatutes which were, prima facie, good; a sessors were not liable in a civil action for view which seems to be sustained by the an unlawful levy. The court said: “That opinion expressed by this court in Lang v. class of public officials is charged with duBayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 ties which require the exercise of judicial L. R. A. (N. S.) 93.' It is, however, unneces- functions, and, when they are called upon sary for us to go to that extent in the pres. thus to act, they are protected from the conent case, since we think the act constitution- sequences which may flow from any error al for reasons to be hereafter stated. Nor is they may commit. Surrounded as these offiit necessary for us to go to the full extent cers are by great difficulties in the discharge justified by Justice Carpenter's language. He of their official duties, the law shields them does not limit the exemption to officers act- when acting within their jurisdiction. In must be made to appear against the assess- judicial character of the officer, but the judiors, not only that the assessment was er- cial character of the act, and the public necesroneous, but that such assessors had no juris- sity that public agents engaged in the perdiction whatever in laying the tax." The formance of a public duty, in obedience to the case subsequently went to the Supreme Court command of a statute, should not suffer perof the United States (100 U. S. 547, 25 L. sonally for an error of judgment which the Ed. 708), and Justice Miller said, in speaking wisest and most circumspect cannot avoid. of the decision of the Court of Appeals of It is not quite accurate to say that in such New York upon this point: “Whether that cases a man is deprived of liberty or propercourt decided that question correctly or not, ty without compensation. As Justice Devens it is not a federal question, but one of gen- pointed out "the individual is presumed to be eral municipal law, to be governed either by compensated by the benefit which such reguthe common law or the statute law of the lations confer upon the community of which state. In either case it presents no question he is a member, or by which his property is upon which this court is authorized to re- protected." The case may, however, be lookview a judgment of the state court.” This ed at in another light. The board of health is case was decided in 1880, long after the dis- acting for the public in the exercise of the cussion arising out of the fourteenth amend- police power of the state. For an error in the ment had become familiar; and it is, there- exercise of that power, no doubt the state fore, not only authority for the exemption ought to answer. Just as in an action for of public officers, but for the proposition that malicious prosecution, the principal who insuch exemption does not contravene the four- stigates the prosecution may be held although teenth amendment.

the justice and the constable are immune, so The principle was held applicable in in a case of an error in judgment by the board Teall v. Felton, 1 N. Y. 537, 49 Am. Dec. 352, of health it is the state which ought to anto the case of a postmaster who assumed to swer for the default of its agent acting in charge letter postage on a newspaper, but obedience to its statutory command. The was held in that particular case that the post- state does not, it is true, answer in an ordimaster did not act in a judicial capacity. nary action at law in this or any other case, The rule has been applied in the case of but there is the same remedy in all cases health officers. Whidden v. Cheever, 69 N. H. an appeal to the justice of the state. A dif142, 44 Atl. 908, 76 An. St. Rep. 154.

ferent view from that of the Massachusetts The exemption of officers from liability ex- court prevailed in Raymond v. Fish, 51 Conn. tends only to matters in which they have 80, 50 Am. Rep. 3, and in Beeks v. Dickinson jurisdiction under the statutes, and it may Co., 131 Iowa, 244, 108 N. W. 311, 6 L. R. A. be said that the board of health has no juris- (N. S.) 831, a case decided after the cases last diction unless a cause of disease actually ex- cited. ists. This view is too narrow. The principle Miller v. Horton was decided in the abwhich was adopted by this court, and vindi- sence of a statute such as ours forbidding an cated in an able opinion of Chief Justice action against the board unless lack of reaBeasley in Grove v. Van Duyn, 44 N. J. Law, sonable and probable cause can be shown. 654, 43 Am. Rep. 412, is applicable. It is The same distinguished court has vindicated enough if the matter is colorably, though the right of the Legislature to require all innot really, within their jurisdiction.

ported rags to be put through a disinfecting A different view has been expressed in process at the expense of the owner, whether Massachusetts. Miller v. Horton, 152 Mass. actually infected or not (Train v. Boston Dis540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. infecting Co., 144 Mass. 523, 11 N. E. 929, 59 Rep. 850, which was followed in Pearson v. Am. Rep. 113), upon the ground that the Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. Legislature had the power to pronounce im113, and in Lowe v. Conroy, 120 Wis. 151, 97 ported rags, not yet disinfected, nuisances in N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. themselves, or, as Justice Holmes said in the 983. The reasons are well stated by Mr. Jus- later case, because the danger was too great tice Holmes, but are combated with equal to permit discrimination. What our Legislaforce by Justice Devens, and the case is ture has done in the health act is in substance weakened as an authority by the fact that it to say that anything which may possibly be was decided by a bare majority of the court. a cause of disease is subject to the regula. Upon principle, we cannot distinguish the tions of the board of health, when that board case from those above cited, where admin- has reasonable and probable cause to think istrative officers were held exempt when call- it to be in fact a cause of disease. Under ed upon to act judicially. If a postmaster such a statute the cases above cited from general, or a postmaster, or a collector of a Massachusetts, Illinois, and Wisconsin are port, or an assessor of taxes are to be im- not in point, and there is no reason why the mune when their error in judgment causes ordinary rule exempting public officers from the loss of another's liberty or property, we private action should not be applied. The think a board of health is entitled to a like board of health was acting for the benefit of immunity. A justice of the peace is immune the public at large, and pursuant to a duty if he acts in a matter colorably within his imposed upon it by a public statute. There

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