tion is that, because the lessor gave certain easements in that part of the 13.52 acres not in terms demised, and particularly an easement in the water lying on and flowing through the larger tract, he really demised the whole. The cases that he cites prove just the opposite. Thus, in Perrine v. Bergen, 14 N. J. Law, 355, 27 Am. Dec. 63, Justice Ford says: 'Even an easement works no dispossession of the owner. The possession still remains in him, as much as if the easement did not exist.' And in Burnet v. Crane, 56 N. J. Law, 285, 28 Atl. 591, 44 Am. St. Rep. 395, an ejectment suit, the Chancellor, speaking for the Court of Errors and Appeals, says: "The right to a fee and the right to an easement in the same estate are rights independent of each other, and may well subsist together when vested in different persons. Each can maintain an action to vindicate and establish his right,' etc. This last case is conclusive authority on the point that ejectment may be brought notwithstanding the existence of an easement. Now I am quite unable to find in the lease anything that gives more than an easement in so much of the entire tract as is not the subject of specific demise. This being so, I do not see why ejectment may not be brought in respect of the land not included in the demise. The practice act makes provision for the case of a person suing for an undivided part. If complainant sues for an undivided one-sixth of the land not demised, and is able to prove his title to it, he will have judgment.

Section 24 of the ejectment act (2 Gen. St. 1895, p. 1285), requires the defendant, if he denies ouster, to admit the right of the plaintiff to an undivided share, stating what share. If the admission is made in terms satisfactory to the plaintiff, he attains the object of his suit, and may then proceed with his case here. If the admission is only of a less interest than plaintiff claims, the case will be tried at law, and the court of law will determine the amount of the interest. "The plaintiff,' says Justice Haines, in Combs v. Brown, 29 N. J. Law, 36, 44, 'can only recover such part of the premises as his proofs have shown him entitled to, and if it appears that he is entitled to an undivided part, he shall have verdict and judg. ment for such part.'

"But the complainant says, further: 'We are in possession for the reason that the defendants are in possession. The possession of one tenant in common is the possession of all. Being in possession, we cannot bring ejectment.' If possession always followed the title, then ejectment would not be possible as between tenants in common-a proposition, of course, untenable. The fact in this case is undeniable that, aside from its constructive possession of that part which has been under lease the complainant has had no possession in fact. Actual possession is essential to the jurisdiction under the act to

pard v. Nixon, 43 N. J. Eq. 632, 13 Atl. 617: 'Under this statute, possession in fact, as distinguished from that constructive possession which in ejectment suits arises in virtue of the legal title, is essential to the jurisdiction of the court.' And, further on, he says: "The defendant having in his answer made denial of possession by complainant, it was incumbent on complainant to establish that fact by proof.' Here the complainant has not attempted to establish possession in fact of the part not demised. It has not been in the joint occupation of the land, and it has not participated in the issues of it. The proofs, if they show anything, show that defendants have, as far as lay in their power, excluded complainant from the possession and refused in any way to recognize its title. Under these circumstances it seems to me that for this court to assume jurisdiction would be to disregard the rule laid down by the Court of Errors and Appeals in Sheppard v. Nixon. As complainant's title depends upon the proper construction of the will of Richard I. De Gray, and does not appear to hinge on any disputed question of fact, it might be a convenient thing for this court to construe this will, just as it might have been a convenient thing for this court, in the first instance, to have construed the deed in the Pipe Line Case (Pipe Line Co. v. Delaware, Lackawanna & Western Railroad Co., 62 N. J. Law, 254, 41 Atl. 759), but, acting under the well-settled rule it declined to take jurisdiction until the legal question was first settled. After that was done, it applied the equitable remedy. Delaware, Lackawanna & Western Railroad Co. v. Breckenridge, 57 N. J. Eq. 154, 41 Atl. 966; Breckenridge v. Delaware, L. & W. R. Co., 58 N. J. Eq. 581, 43 Atl. 1097. No distinction has been taken in this state between questions of construction of documents and questions of fact in dispute. The Court of Errors and Appeals has very recently applied the rule to partition cases (Slockbower v. Kanouse, 50 N. J. Eq. 481, 26 Atl. 333), and the Chancellor, in a still later case (Hanneman v. Richter, 62 N. J. Eq. 366, 50 Atl. 904), had under consideration a partition depending upon the construction of a will.

"I am at a loss to see why the cases cited do not apply to this case. If I am wrong in my conclusions, the court of review will have before it all the facts, and can finally dispose of the whole matter."

Preston Stevenson and Gilbert Collins, for appellants. John B. Humphreys, for respond

ent.

PER CURIAM. The decree appealed from is affirmed, for the reasons stated in the opinion delivered in the court of chancery by Vice Chancellor Stevens, on the hearing of the cause, and in the supplemental opinion delivered by him on the application for a

(76 N. J. L. 509) VALENTINE v. CITY OF ENGLEWOOD

et al.

(Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. MUNICIPAL CORPORATIONS (§ 7452*)-ACTS OF OFFICERS-GOVERNMENTAL OR CORPORATE

FUNCTIONS.

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. § 1568; Dec. Dig. § 7452.*]

2. HEALTH (§ 18*)-BOARDS OF HEALTH-LIABILITIES-ESTABLISHMENT 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 (§ 299*)-PERSONAL ACTIONS AGAINST BOARD OF

LIBERTY

HEALTH.

Section 15 of the board of health act (Gen. St. 1895, p. 1638), 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 (§ 19*)-BOARDS OF HEALTH-ACTIONS AGAINST.

Section 15 of the board of health act (Gen. St. 1895, p. 1638) in effect gives an action against the board upon proof of the facts therein 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.)

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 he 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

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 tendered 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 ordered 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 physiclan, one of the defendants, reported to the board of health a case of scarlet fever at the plaintiff's residence; and that at a consultation 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 established, or a quarantine of his daughter and her 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, signed 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.

SWAYZE, J. (after stating the facts as above). We find it convenient to deal first with the liability of the city of Englewood.

The precise question involved is new in this court. In Kehoe v. Rutherford, 74 N. J. Law, 659, 65 Atl. 1046, there was active wrongdoing by the municipal authorities in collecting surface water and discharging it so that it injured the plaintiff's land, but that act was the act of the corporation itself for a special corporate purpose. A distinction is made in the cases in other jurisdictions between such acts and acts done in performance of a governmental function in execution of powers of a public and general character, delegated to the municipality for the welfare and protection of its inhabitants or the general public. Of the numerous cases collected in 28 Cyc. 1257, it will suffice to refer to Daly v. New Haven, 69 Conn. 644, 38 Atl. 397; Colwell v. Waterbury, 74 Conn. 568, 51 Atl. 530, 57 L. R. A. 218; Hourigan v. Norwich, 77 Conn. 358, 59 Atl. 487; Hafford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Manners v. Haverhill, 135 Mass. 165; Clark v. Easton, 146 Mass. 43, 14 N. E. 795; Maxmilian v. Mayor, etc., of New York, 62 N. Y. 160, 20 Am. Rep. 468. These cases have been followed by our Supreme Court in Tomlin v. Hildreth, 65 N.

Law, 438, 47 Atl. 649. A more recent case is Cunningham v. Seattle, 42 Wash. 134, 84 Pac. 641, 4 L. R. A. (N. S.) 629; 7 Am. & Eng. Ann. Cas. 805, in a note to which numerous cases as to the nonliability of a municipality for acts of its firemen are collected.

The principle has been frequently applied to the acts of boards of health. Summers v. Daviess County, 103 Ind. 262, 2 N. E. 725, 53 Am. Rep. 512; Mitchell v. Rockland, 52 Me. 118; Nicholson v. Detroit, 129 Mich. 246, 88 N. W. 695, 56 L. R. A. 601; Bryant v. St. Paul, 33 Minn. 289, 23 N. W. 220, 53 Am. Rep. 31; Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983. It seems to be founded in reason,

The acts complained of by the plaintiff were in performance of a governmental function imposed upon the board of health by the Legislature, under a special statute relating to boards of health, for the benefit of the public at large. The duty was quite independent of any provisions of the city charter, and was in no way for the benefit of the city in its corporate capacity, or as the owner of property. The only connection, under the statute, between the city and the board of health, is that the members of the board of health are appointed by the governing body of the city. This, however, did not make them the servants or agents of the city; they were public officers, notwithstanding the method of their appointment. Hafford v. New Bedford, 16 Gray (Mass.) 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Murphy v. Inhabitants of Needham, 176 Mass.

of New York, 62 N. Y. 160, 20 Am. Rep. 468; Felch v. Weare, 69 N. H. 617, 45 Atl. 591.

The city could only be held by applying the rule respondeat superior, and that rule has no application in a case where the persons who commit the act complained of are neither the servants nor agents of the municipal corporation, nor acting in the performance of any corporate duty. So far as their act is outside the limits of the corporate duty of the municipality, it cannot be considered the act of the municipality. 2 Dillon (3d Ed.) §§ 968-974. The case is not altered by the fact that the court excluded the question whether the records of the common council showed any action on their part in regard to the quarantining of the plaintiff. At that time the nonsuit had already been ordered, and nothing was said to indicate that the offer was to show anything that would conflict with the statement of plaintiff's counsel in his opening that the board of health acted without any authority from the city. It is not necessary, therefore, to consider whether the liability of the city would have been different if express authority had been shown. The evidence, moreover, becomes quite immaterial in view of other considerations to be stated. No liability of the city was shown, and in that respect the nonsuit was right.

The statute creating the board of health authorizes it to adopt ordinances to prevent the spreading of dangerous epidemics or contagious diseases, and to maintain and enforce sufficient quarantine when it deems necessary. Gen. St. 1895, p. 1644, § 49. The board is required by section 13 to examine into all causes of disease injurious to the health of the inhabitants, and to cause the same to be removed and abated. Section 15 enacts that no suit shall be maintained in any of the courts of this state to recover damages against any such board, its officers or agents, on proceedings had by them to abate and remove a cause of disease, unless it shall be shown in such suit that the cause of disease did not exist, was not hazardous and prejudicial to the public health, and that the board acted without reasonable and probable cause to believe that such cause was in fact prejudicial and hazardous to the public health.

The evidence in the present case justified an inference on the part of the jury that scarlet fever did not in fact exist; and, as the trial judge nonsuited the plaintiff, his ruling cannot be vindicated, if the actual existence of the disease is essential to the justification of the defendants. The issue joined upon the pleadings was only whether there existed reasonable and probable cause to believe that the defendant's daughter was sick with scarlet fever, but it would be taking too narrow a view of the case to decide it upon this question of pleading only. We prefer to rest the decision upon broader grounds.

Lawrence, 21 N. J. Law, 248, and on appeal 21 N. J. Law, 714, 47 Am. Dec. 190, and 23 N. J. Law, 590, 57 Am, Dec. 420, it was held in the Supreme Court, in a very able opinion by Chief Justice Green, that the defendant, who, as mayor of New York City, had destroyed real and personal property in order to stop the spread of a great fire, was not to be held responsible, since he acted in pursuance of a duty imposed upon him by statute, and not for private emolument or for his individual benefit. Chief Justice Green said: "It is a well-settled principle that where a person in discharge of a public duty, not acting for private emolument, unwittingly injures another in the performance of the act, while acting with due skill and caution, he is not answerable for damages." The judgment was reversed in this court, upon the ground that the statutes of New York provided no compensation for the personal property destroyed, that the facts amounted to a taking of property for public use without compensation, and the case was therefore within the prohibition of our state Constitution. The case afterwards came before the Supreme Court on a demurrer to amended pleas, and the judgment there rendered in favor of the defendant was affirmed in this court. 23 N. J. Law, 590, 57 Am. Dec. 420. Justice Carpenter, in the course of his opinion took occasion to say, at page 600 of 23 N. J. Law (57 Am. Dec. 420): "A public officer, acting in good faith, upon a sudden and alarming emergency, under the sanction of a constitutional and valid law in a matter of public duty, is not to be held responsible for the unavoidable and necessary result of such act of duty. An injured party may have a right to resort to the public for satisfaction, but the law has ever held that the officer, himself, not exceeding his power and not guilty of oppression or bad faith, is not personally Hiable." He quotes with approval what was said by Justice Nevius in Sinnickson v. Johnson, 17 N. J. Law, 150, 34 Am. Dec. 184, where a distinction was drawn between acts done exclusively for the public interest by agents appointed by public authority acting within the scope of that authority, and acts done for a private and individual interest. Justice Carpenter limits the exemption of public officers to acts done under the sanction of a constitutional and valid law, but, at the same time, quotes Chancellor Kent as extending the exemption to acts done under statutes which were, prima facie, good; a view which seems to be sustained by the opinion expressed by this court in Lang v. Bayonne, 74 N. J. Law, 455, 68 Atl. 90, 15 L. R. A. (N. S.) 93. It is, however, unnecessary for us to go to that extent in the present case, since we think the act constitutional for reasons to be hereafter stated. Nor is it necessary for us to go to the full extent justified by Justice Carpenter's language. He does not limit the exemption to officers act

ment upon a state of facts, the conclusion from which may be doubtful or difficult.

In the discussion which arose after the decision of the famous case of Ashby v. White, 1 Smith's Leading Cases (7th Am. Ed.) 455, it was expressly stated in the argument prepared by the committee of the House of Lords, which was principally drawn up by the Lord Chief Justice, that fraud and malice were the gist of the action. The language quoted on page 484 is: "There is no danger to an honest officer that means to do his duty; for where there is a real doubt touching the party's right of voting, and the officer makes use of the best means to be informed, and it is plain his mistake arose from the difficulty of the case, and not from any malicious or partial design, no jury will find an officer guilty in such a case, nor can any court direct them to do it, for it is the fraud and the malice that entitles the party to the action." In that case fraud and malice were averred in the declaration. Some American courts have gone so far as to hold that the officer is exempt even in a case of corruption and malice. Spalding v. Vilas, 161 U. S. 483, 493, et seq., 16 Sup. Ct. 631, 40 L. Ed. 780, which was an action against the Postmaster General. Weaver v. Devendorf, 3 Denio (N. Y.) 117, which was an action against an assessor for loss caused by an illegal assessment. Where there is no fraud or malice, the overwhelming weight of authority is in favor of the exemption of the public officer from civil action, and the cases are not limited to officers acting in a judicial capacity, but reach the case of all who are called upon in behalf of the public to exercise their judgment. Thus it was held in Otis v. Watkins, 9 Cranch, 339, 3 L. Ed. 752, that a collector of a port detaining a vessel under the embargo law of 1808 (Act Cong. April 25, 1808, c. 66, 2 Stat. 499) need not show that his opinion that the vessel was about to violate the law was correct, nor that he used reasonable care and diligence in ascertaining the facts upon which his opinion was formed. It was said to be enough that he honestly entertained the opinion upon which he acted; and, although Chief Justice Marshall dissented, he did not question this general principle, but placed his dissent upon entirely different grounds. The same view was expressed in Kendall v. Stokes, 3 How. 87, 11 L. Ed. 506. In New York, it was held, in Williams v. Weaver, 75 N. Y. 30, that assessors were not liable in a civil action for an unlawful levy. The court said: "That class of public officials is charged with duties which require the exercise of judicial functions, and, when they are called upon thus to act, they are protected from the consequences which may flow from any error they may commit. Surrounded as these officers are by great difficulties in the discharge of their official duties, the law shields them when acting within their jurisdiction. In

must be made to appear against the assessors, not only that the assessment was erroneous, but that such assessors had no jurisdiction whatever in laying the tax." The case subsequently went to the Supreme Court of the United States (100 U. S. 547, 25 L. Ed. 708), and Justice Miller said, in speaking of the decision of the Court of Appeals of New York upon this point: "Whether that court decided that question correctly or not, it is not a federal question, but one of general municipal law, to be governed either by the common law or the statute law of the state. In either case it presents no question upon which this court is authorized to review a judgment of the state court." This case was decided in 1880, long after the discussion arising out of the fourteenth amendment had become familiar; and it is, therefore, not only authority for the exemption of public officers, but for the proposition that such exemption does not contravene the fourteenth amendment.

The principle was held applicable in Teall v. Felton, 1 N. Y. 537, 49 Am. Dec. 352, to the case of a postmaster who assumed to charge letter postage on a newspaper, but it was held in that particular case that the postmaster did not act in a judicial capacity. The rule has been applied in the case of health officers. Whidden v. Cheever, 69 N. H. 142, 44 Atl. 908, 76 Am. St. Rep. 154.

The exemption of officers from liability extends only to matters in which they have jurisdiction under the statutes, and it may be said that the board of health has no jurisdiction unless a cause of disease actually exists. This view is too narrow. The principle which was adopted by this court, and vindicated in an able opinion of Chief Justice Beasley in Grove v. Van Duyn, 44 N. J. Law, 654, 43 Am. Rep. 412, is applicable. It is enough if the matter is colorably, though not really, within their jurisdiction.

A different view has been expressed in Massachusetts. Miller v. Horton, 152 Mass. 540, 26 N. E. 100, 10 L. R. A. 116, 23 Am. St. Rep. 850, which was followed in Pearson v. Zehr, 138 Ill. 48, 29 N. E. 854, 32 Am. St. Rep. 113, and in Lowe v. Conroy, 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983. The reasons are well stated by Mr. Justice Holmes, but are combated with equal force by Justice Devens, and the case is weakened as an authority by the fact that it was decided by a bare majority of the court. Upon principle, we cannot distinguish the case from those above cited, where administrative officers were held exempt when called upon to act judicially. If a postmaster general, or a postmaster, or a collector of a port, or an assessor of taxes are to be immune when their error in judgment causes the loss of another's liberty or property, we think a board of health is entitled to a like immunity. A justice of the peace is immune if he acts in a matter colorably within his

judicial character of the officer, but the judicial character of the act, and the public necessity that public agents engaged in the performance of a public duty, in obedience to the command of a statute, should not suffer personally for an error of judgment which the wisest and most circumspect cannot avoid. It is not quite accurate to say that in such cases a man is deprived of liberty or property without compensation. As Justice Devens pointed out "the individual is presumed to be compensated by the benefit which such regulations confer upon the community of which he is a member, or by which his property is protected." The case may, however, be looked at in another light. The board of health is acting for the public in the exercise of the police power of the state. For an error in the exercise of that power, no doubt the state ought to answer. Just as in an action for malicious prosecution, the principal who instigates the prosecution may be held although the justice and the constable are immune, so in a case of an error in judgment by the board of health it is the state which ought to answer for the default of its agent acting in obedience to its statutory command. The state does not, it is true, answer in an ordinary action at law in this or any other case, but there is the same remedy in all cases→ an appeal to the justice of the state. A different view from that of the Massachusetts court prevailed in Raymond v. Fish, 51 Conn. 80, 50 Am. Rep. 3, and in Beeks v. Dickinson Co., 131 Iowa, 244, 108 N. W. 311, 6 L. R. A. (N. S.) 831, a case decided after the cases last cited.

Miller v. Horton was decided in the absence of a statute such as ours forbidding an action against the board unless lack of reasonable and probable cause can be shown. The same distinguished court has vindicated the right of the Legislature to require all imported rags to be put through a disinfecting process at the expense of the owner, whether actually infected or not (Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N. E. 929, 59 Am. Rep. 113), upon the ground that the Legislature had the power to pronounce imported rags, not yet disinfected, nuisances in themselves, or, as Justice Holmes said in the later case, because the danger was too great to permit discrimination. What our Legislature has done in the health act is in substance to say that anything which may possibly be a cause of disease is subject to the regula tions of the board of health, when that board has reasonable and probable cause to think it to be in fact a cause of disease. Under such a statute the cases above cited from Massachusetts, Illinois, and Wisconsin are not in point, and there is no reason why the ordinary rule exempting public officers from private action should not be applied. The board of health was acting for the benefit of the public at large, and pursuant to a duty imposed upon it by a public statute. There