Adney v. State Road Commission of Utah

• Decision Date: 07 August 1926
• Docket Number: 4366
• Citation: 67 Utah 567,248 P. 811
• Court: Utah Supreme Court
• Parties: ADNEY et al. v. STATE ROAD COMMISSION OF UTAH et al

248 P. 811

67 Utah 567

ADNEY et al. v. STATE ROAD COMMISSION OF UTAH et al

No. 4366

Supreme Court of Utah

August 7, 1926

Appeal from District Court, First District, Box Elder County; M. C Harris, Judge.

Action by C. G. Adney and others against the State Road Commission of Utah and others. Judgment for plaintiffs, and defendants appeal.

AFFIRMED.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty Gen., for appellants.

William J. Lowe, of Salt Lake City, and J. Wesley Horsley, of Brigham City, for respondents.

STRAUP J. GIDEON, C. J., and THURMAN, FRICK and CHERRY, JJ., concur.

OPINION

STRAUP, J.

A public highway runs from Brigham City in a northwesterly direction to Corinne, Promontory, Tremonton, and on through the state into Idaho. On the record it is designated as an "old state highway." At a point about a mile easterly of Corinne, the road, in the direction of Corinne, runs in a westerly direction through the southern portion of Corinne, thence southwesterly beyond Corinne, and thence northwesterly to a point about a mile northwest of Corinne, the course so described being about 3.72 miles. Just east of the corporate limits of Corinne there is a bridge over which this portion of the road crosses Bear river. This bridge will be referred to as the old bridge. At the point of the old road about a mile east of Corinne the state road commission, in connection with the county commissioners of Box Elder county, laid out and constructed a new road and a more direct route, and in a more northwesterly direction running but a short distance north of Corinne, and thence northwesterly to the point, about a mile northwest of Corinne, where it joins the old road, the distance of the new road being 2.82 miles, thus lessening the distance between the stated points about a mile. The new road crosses Bear river, over which the commission and the county constructed a new bridge, about or a little more than a mile east of Corinne. At the new bridge the distance between the old and the new road is a little more than a quarter of a mile, and a short distance west of Corinne the distance between the new and the old road is a little more than three-fifths of a mile. The new bridge is more than a half mile east and about a quarter of a mile north of the old bridge. The road commission and its contractor, the C. F. Dinsmore Construction Company, acting under its authority, were about to dismantle and tear down the old bridge which is about 200 feet long and of steel and concrete construction, and to remove and use it on a road in Emery county.

The individual plaintiffs, owning and occupying farms abutting the old road east of Corinne and east of the bridge, and the town or city of Corinne, brought this action to restrain the road commission and its contractor from dismantling or tearing down the old bridge. Box Elder county and its commissioners were also made parties. They appeared and averred that the bridge belonged to the county, and that they had not abandoned nor released it or the old road, and that the road commission had no right, title, or interest in or to the bridge and had no right or authority to dismantle or remove it. The state road commission asserted title to the ownership of the bridge and the right to remove and use it as contemplated, chiefly in virtue of a contract which it had entered into with the county commissioners with respect to the construction of the new road, but such right was denied by the plaintiffs and the county. The case was tried to the court, who, on findings in favor of the plaintiffs, enjoined the road commission from tearing down and removing the bridge, from which judgment the road commission has prosecuted this appeal.

Though the court found that prior to 1875 the bridge was constructed and maintained by the town or city of Corinne, yet since about that time the county had entered into a contract with the city for a location and reconstruction of the bridge across the river at the same place, for the use and benefit of the public generally, including the citizens in and near Corinne, and the bridge thereafter having been maintained by the county with public funds, and as the bridge was so maintained outside of the corporate limits, the court held that the town or city of Corinne had no such special interest in the bridge or highway as to enable it to maintain the action. No complaint is made of that ruling and hence we lay it aside.

The appellant, however, contends that none of the individual plaintiffs had any special interest in the bridge or highway or will suffer any special injury or damage, if the bridge is removed, different from that suffered or sustained by the general public, and that hence none of them were entitled to maintain the action. But the evidence shows and the court found that the old road was necessary for ingress and egress to and from the farms owned and occupied by the individual plaintiffs and others abutting the old road east of the bridge, and that without the bridge they had not means of ingress and egress to and from their farms, or to Corinne city for the purpose of marketing their crops, or of trading and shopping, or of attending public schools and churches in Corinne, for all of which purposes the bridge and highway were used by them and their predecessors continuously since and prior to 1875. In other words, while the new road affords the general traveling public from Brigham City through Corinne, and thence on northwesterly through the state, equal, if not better, means and a somewhat shorter distance than the old road, still the general public, if the old bridge is removed, will not suffer the damage or injury that will be suffered by the plaintiffs and by those whose farms east of the bridge abut the old road. They, as found by the court, will be deprived of ingress and egress to and from their farms, and of marketing and trading in Corinne, or there attending public schools or churches, except as they travel easterly on the old road, if it be kept open and in condition for travel, to a point where it joins the new road, and thence back northwesterly to Corinne a distance of several miles. As is seen, the change made by the construction of the new road or highway is not a mere alteration or improvement of the old road, but is in effect the establishment of a new course or route or road, and the removal of the bridge will, as found by the court, in effect constitute an abandonment of the old road. Under the circumstances, we think the removal of the bridge will cause the individual plaintiffs such a special damage as is different in kind and not merely in degree from that which will be suffered by the general public, and, hence, such individual plaintiffs had the right to maintain the action. 13 R. C. L. 75; 29 C. J. 626; 2 Elliott, Roads and Streets (3d Ed.) § 854.

The case of Muir v. Kay (Utah) 244 P. 901, on its facts, is dissimilar from the case here, and hence readily distinguishable. However, in this case the county itself appeared and averred its ownership in and to the bridge, alleged that the road commission had no right or authority to remove it, and objected to its removal and to a vacation or abandonment of the old road, and averred that no action had been taken by it or its commissioners as to any abandonment or vacation of the old road or of the bridge, or as to its removal or other disposition of it. Thus, for such additional reason, had the court before it proper parties entitled to maintain the action and to seek injunctive relief against a wrongful removal of the bridge. That the old road was established and continuously used as a public highway for a half century or more, and the bridge was constructed and continuously maintained out of public funds and used as a part of such highway for such length of time, is not disputed.

Chapter 65, Laws of Utah 1923, defining the powers and duties of the state road commission relating to state highways, so far as here material, gives the commission power:

"* * * (a) To make all contracts for the construction and maintenance of highways. * * *

"(d) To...