flict with those cited above. It belongs to that class of cases in which municipal corporations have been held liable for torts committed by an irregular and illegal exercise of a power which the corporation possessed. They have no application to the case before us. Here the injury complained of was not occasioned by an act done within the scope of the power and authority of the corporation, but was the result of an act void and illegal because done without power or authority. Had the grading of North Avenue been within the power possessed by the corporation, and the injury to the plaintiff's property resulted from the careless or improper manner in which the work was done, it would have presented a very different question, and an action for such injury could have been maintained. It is wholly immaterial whether the mayor and city council by a subsequent ordinance adopted and ratified the grading of the avenue. If the act was void, because ultra vires, and they had no power to authorize it before it was undertaken or commenced, they certainly had no power to adopt it after it was done.

We think there was no error in the instruction given by the court below, and the judgment must be affirmed.

JUDGMENT AFFIRMED.

LIABILITY OF MUNICIPAL CORPORATIONS FOR TRESPASSES DONE COLORE OFFICII.

THIRTIETH SELECTED CASE.

LEE V. THE VILLAGE OF SANDY HILL.*

To render a municipal corporation liable for the tortious acts of their servants and officers, it is enough that it should appear, either that they were expressly authorized by such corporation or that they were done bona fide, in pursuance of a general authority to act for the corporation on the subject in relation to which they were performed. MASON, J.

* Reported in 40 N. Y., 442 (1869).

The charter of an incorporated village provided that its officers should be five

trustees and that such trustees should be commissioners of highways of the village, and have the same powers and be subject to the same duties as to the roads, streets and alleys of the village as commissioners of highways in towns, and might lay out or alter any street or highway through or upon any garden, orchard, yard or other lands in the village. Under a written resolution and order of such trustees, the overseer of highways wrongfully entered upon the land of the plaintiff and moved back a fence erected by him in front of his lot; the trustees in making the order, acting in good faith, erroneously supposing the plaintiff's fence was an encroachment upon the street, and that they were proceeding in pursuance of the authority conferred upon them by the charter: Held (JAMES, J., dissenting), that the plaintiff could maintain trespass against the village for such removal, whether the trustees were to be regarded as mere agents of the corporation, or it was deemed the act of the corporation itself.

Where the owner of land in a village causes a street to be laid out over it and dedicated to the public use, and the same has been used by the public as a highway for not more than five years, in the absence of any act of the village authorities in opening or working the said street, or accepting such dedication, it may be revoked by the owner, and the land does not become a public highway.

APPEAL from the judgment of the General Terın, in the Fourth District, affirming a judgment at the Special Term, for the defendant, on a verdict reserved for consideration by the judge who presided at the Circuit.

The action was for trespass to land. The complaint stated the incorporation of the defendant, the plaintiff's ownership of the locus in quo, and averred that the defendant unlawfully, wrongfully and forcibly entered upon the premises owned by the plaintiff, took forcible possession thereof, removed the fences, dug up the soil, and threatened to make a highway. The answer contained a general denial, and also alleged that the land entered upon was a public highway and dedicated by the owner.

It appeared upon the trial that, in 1855, the then owner of the premises caused to be surveyed and laid out through his lands a street fifty-five feet wide, of which the locus in quo formed a part, sixteen and one-half feet wide; that before opening the street, the owner sold one lot, covenanting to open such a street; that the tract of land through which the street

was laid out has passed through several mesne conveyances into the hands of the plaintiff.

The street opened by the plaintiff's grantor, fifty-five feet wide was used of that width until 1860, when the plaintiff fenced in on the west side a strip a rod wide. This was the fence removed, and the strip so fenced in the premises tres

passed upon.

July 6th, 1862, the trustees of the defendant passed the following resolution:

On motion,

Resolved, That Cherry street be widened in accordance with the petition of R. C. Cary and others, and that said street, when widened, be three rods wide, measuring from the east side of the fence on said street as it now stands.

Subsequently, in 1862, the trustees of the defendant caused it to be surveyed and recorded. November 6th, of that year, the trustees made the following order:

Whereas, A road used as a highway, in the village of Sandy Hill, town of Kingsbury, Washington county, leading from Canal street to Mechanic street, past the residence of Robert Cary, was laid out and dedicated by Stephen B. Lee, in the year 1859, and accepted and used by the public, and named and called Cherry street, but has never been sufficiently and properly described and recorded as a public road; now, therefore, we, the trustees of the village of Sandy Hill, in the town of Kingsbury, aforesaid, and commissioners of highways for the said village, at a regular meeting of the said board of trustees (all of said trustees except Jeremiah Finch being present), held on the 6th day of November, 1862, at said village, for the purpose of causing said road to be ascertained, described and entered of record in the town clerk's office, and having caused a survey of the said road to be made and ascertained, do order that the said road be, and the same is hereby ascertained and described as follows: Commencing at a post in the southwest corner of the door-yard fence in front of the house of Robert Cary, and running thence northwardly along the fence on the west side of the lands of said Cary, the lands of Orson K. Mason and John Moon to Canal street; thence westwardly along Canal street three rods; thence southwardly on

a line parallel with the said first mentioned line to Mechanic

street.

DARIUS MATHEWSON,

G. W. CLARK,

H. CHURCH,

CHAS. STONE, Jr.,

Trustees.

November 11, 1862, they made the following order:

To JOHN H. NORTHUP, ESQ., overseer of highways in and for the village of Sandy Hill:

You are hereby required and directed to remove the obstructions from Cherry street, in said village; to-wit., the fence placed in and along the westerly side of said street, so as to leave it free and clear of obstructions, to the width originally laid out, and as the same has been ascertained and recorded. Dated, November 11, 1862.

DARIUS MATHEWSON,
G. W. CLARK,

H. CHURCH,

CHAS. STONE, Jr.,

Trustees.

And on the 18th of November they made the following order and direction:

November 18, 1862.

To JOHN H. NORTHUP, overseer of highways in and for the village of Sandy Hill:

You are hereby ordered to remove the fence and other obstructions now in or being put upon the south part of Cherry street, in the village of Sandy Hill, so as to make a three rod street, the west line to be a straight line.

D. MATHEWSON,
H. CHURCH,
CHAS. STONE, JR.,
Trustees.

Under these orders the overseer proceeded and committed the trespasses complained of, and upon this evidence the court ordered a verdict for the amount of damage proved in favor

of the plaintiff, and reserved, for further consideration, the question whether the corporation was liable, and subsequently ordered judgment for the defendant on the ground that it was not liable for these acts of the trustees, although wrongful; which judgment was affirmed by the General Term. The charter of the defendant, so far as its provisions have any bearing on the case, will be found in chapter 48, of the laws of 1856, and chapter 130, of the laws of 1860.

Hughes & Northup, for the appellant, to show that trespass would lie against a corporation, cited, Eastern Counties Railway Co. v. Broom (2 Eng. Law and Eq., 406, 409); Sharrod v. London and N. W. R. Co. (4 Eng. Law and Eq., 404); The Mayor, etc., v. Bailey (2 Denio, 433, 439); Sanford v. Eighth Av. R. R. Co. (23 N. Y., 343); Mott v. Mayor, etc. (2 Hilton, 358, 364); Lockwood v. Mayor, etc. (2 Hilton, 66); Howell v. City of Buffalo (15 N. Y., 512, 519); Dater v. Troy Turnpike and R. R. Co. (2 Hill, 629); Seneca Road Co. v. A. and R. R. R. Co. (5 Hill, 170); Bloodgood v. M. and H. R. R. Co. (18 Wend., 9); Hay v. Cohoes Co. (3 Barb., 42); Hay v. Cohoes Co. (2 Coms., 159); Beach v. Fulton Bank (7 Cow., 484); 9 Serg. & R., 94; 4 Mann & G., 452; Tremain v. Cohoes Co. (2 Coms., 163); Moore v. Fitchburg R. R. Co. (4 Gray, 464); Howe v. Buffalo and Erie R. R. Co. (38 Barb., 124); Watson v. Bennett (12 Barb., 196); Roe v. B. L. and C. J. R. Co. (7 Eng. Law and Eq., 546); Crawfordsville R. R. Co. v. Wright (5 Ind., 250); State v. Morris and Essex R. R. Co. (3 Zabriskie, 360); Goodspeed v. East Haddam Bank (22 Conn., 530); Allen v. City of Decatur (23 Ill. R., 332); City of Pekin v. Newell (26 Ill. R., 320); Freeland v. City of Muscatine (9 Iowa R., 461); Regina v. Great North of Eng. Railway (58 E. C. L. R., 315); s. c., 9 Q. B., 315; 9 A. & Ellis, N. s., 312.

Upon the question of the liability of a corporation for the acts of its agents they cited First Baptist Church of Schenectady v. The Schenectady and Troy R. R. Co. (5 Barb., 79, 90); Conrad v. Village of Ithica, supra; Perkins v. New York C. R. R. Co., supra; Sharrod v. The London and M. W. Railway Co., supra; P. W. and B. R. R. Co. v. Quig.