Rogers v. Board of Road Com'rs for Kent County

OPINION BY: REID, J.

Plaintiff instituted this suit to recover damages because of the death of her husband, Theodore Rogers, which plaintiff claims was caused by the trespass and negligence of the defendant board of county road commissioners. Defendant filed a motion to dismiss, based on the pleadings and on the ground of governmental immunity. The lower court granted defendant's motion and dismissed the cause. Plaintiff appeals from the judgment of dismissal of her cause.

Plaintiff claims that for two winter seasons previous to the date of the fatal injury to her husband the defendant board of road commissioners had obtained a license to place a snow fence in decedent's field parallel to the roadway past decedent's farm. Plaintiff claims in her declaration that the placing of the snow fence there was with the distinct understanding and agreement between the defendant and decedent that all of the fence together with the anchor posts should be removed by defendant at the end of each winter season, when the necessity for snow fences for that season no longer existed. Plaintiff claims that such was the arrangement for the winter season of 1943-1944, that the arrangement was renewed for the winter season of 1944-1945, and that in the spring of 1945 the defendant's agents and employees removed the snow fence but did not remove a steel anchor post which protruded from 6 to 8 inches above the ground. Plaintiff further claims that the place where the post was located was a meadow where the grass grew to a considerable height, so that the anchor post was entirely hidden, and that on July 23, 1945, after decedent's husband had mowed several swaths around the field where the snow fence had been, with his mowing machine attached to his neighbor's tractor, and without any negligence or what of proper method of operation on his part, the mowing bar struck the steel stake and as a result of the impact decedent was forcibly thrown from the sent of the mowing machine to and upon the wheels of the mowing machine and upon the ground. By reason of the accident decedent received severe injuries which caused his death on October 25, 1945…

The court dismissed plaintiff's cause of action, ruling that the action was plainly an action based upon negligence, that there was no basis for any finding of trespass and that the defense of governmental immunity applied to the facts set forth in plaintiff's declaration.

Failure to remove the anchor stake upon expiration of the license to have it on defendant's land was a continuing trespass and is alleged by plaintiff to have been a proximate cause of the damage which she seeks to recover.

"SEC. 160. Failure to remove a thing placed on the land pursuant to a license or other privilege.

"A trespass, actionable under the rule stated in section 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon

"(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or

"(b) pursuant to a privilege conferred on the actor irrespective of the possessor's consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise." 1 Restatement, Torts, p. 368…

The judgment of the court dismissing the cause of action is reversed and the cause remanded for such further proceedings as shall be found necessary…