American Steel Dredge Works v. Bd. of Com'rs of Putnam Cnty.

Decision Date12 June 1908
Docket NumberNo. 21,292.,21,292.
Citation85 N.E. 1,170 Ind. 571
PartiesAMERICAN STEEL DREDGE WORKS et al. v. BOARD OF COM'RS OF PUTNAM COUNTY.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by board of commissioners of Putnam county, Ind., against the American Steel Dredge Works and others. From a judgment for plaintiff, defendants appealed to the Appellate Court, whence the cause was transferred, under section 1394, subd. 2, Burns' Ann. St. 1908. Reversed with directions.

For opinions in Appellate Court, see 82 N. E. 995, and 84 N. E. 19.

Million & Hanna and Hathaway, Renner & McNutt, for appellants. John H. James, T. T. Moore, and J. P. Hughes, for appellee.

GILLETT, C. J.

This action was brought by the board of commissioners of the county of Putnam, in the year 1906, to obtain an injunction. We observe in the assignment of errors a slight defect in the naming of the partners composing the American Steel Dredge Works, which was named in the amended complaint as a defendant. The variance comes within the rule of idem sonans, and leaves no doubt as to the intendment. We do not regard the defect as jurisdictional, and shall treat it as waived. Landon v. White, 101 Ind. 249. The latter observation also covers a defect in the naming of appellee. The amended complaint was in two paragraphs, to each of which a demurrer was overruled. There was a finding for appellee on the first of said paragraphs, and a finding against it on the second. From the final judgment which followed, appellants appeal.

The only error we shall rule on is based on the overruling of the demurrer to the first paragraph of the amended complaint. Said paragraph alleges appellee's exclusive control, management, maintenance, and ownership of four bridges, having public and greatly used and traveled highways of said county, leading to, from, and over said bridges, one of which highways is a free macadam road; that three of said bridges are along a natural, but nonnavigable, water course running through said county, while the fourth (known as the Parker Bridge), which also leads across said stream, is a county line bridge, and is owned, in equal interest, by the counties of Putnam and Morgan; that said bridges are of certain value (which is alleged), and in good condition and repair; that the defendants, and each of them, are threatening to, and state that they will, unless enjoined, tear down and remove and destroy said bridges, and will cut out, dig, dredge, and remove the earth in the channel of said stream, which gives support to and (will) undermine the stone abutments of said bridges, and make said abutments unsafe to support said bridges, and (will) destroy them, to the great and irreparable injury of plaintiff in a certain alleged sum. The complaint then proceeds as follows: “That the defendants, and each of them, claim to have some right or contract to tear down and remove said bridges, and each of said bridges, but plaintiff says that neither the board of commissioners, nor any member thereof, nor the county of Putnam, nor any one representing the county of Putnam, nor the board of commissioners of said county, have ever, in any way or manner whatever, been made parties to any drainage proceedings, or proceedings or actions of any kind, in any court, and that they, nor either of them, have never, in any manner whatever, been named in any complaint or petition filed in any court, and that they have never in any way appeared to or joined in any proceeding, and that the interest, title, or right in and to the property described in the complaint has never been described, named, or mentioned in any complaint or petition of any kind in any court, and there has never been any actions or proceedings of any kind, brought or commenced in any court, in which it was asked, as against them or either of them, to do the things, or any of them, which defendants are now threatening to do, as alleged in the complaint, and that they, nor either of them, have never in any way or manner been notified of any such proceedings of any kind or nature whatever, and that no process or notice has ever been served or posted of any drainage proceedings, or of any proceedings or actions of any kind, in any court, and that they, nor either of them, have never had any notice of any proceeding or actions in which it was sought or asked to do the things, or any of them, which defendants are now threatening to do, or which would in any way interfere with or in any way affect or disturb the right, title, or interest in said property over which plaintiff has control, or in and to the property, or any of it, described in plaintiff's complaint.” The fact appears from the record, and in view of the silence of the complaint we may assume, that the drainage proceeding was had in a court of general jurisdiction (it was, in fact, in the Morgan circuit court). The evidence, which is in the record, further shows that said drainage proceeding was instituted while the act of 1885, concerning drainage, was in force. As shown, there is an allegation in the complaint of ownership by the county of the various bridges involved, but, as we are led to infer from the discussion that all but the Parker bridge, while they are highway bridges extending over water courses, do not extend over the division line of any county or township, and as there is no allegation that the township trustees of the proper townships were not in court, it appears important, in order to limit the extent of this litigation, if our assumption be correct, to consider whether the county has a standing to complain of an injury to such bridges.

Passing over, for the present, the question of joint county line bridges, as well as the matter of bridges for the building of which townships have voted aid, we shall proceed to consider the relationship of the county and the township to highway bridges over water courses built and maintained under the General Statute. In a strict sense of the term there is no local ownership of public highway bridges, in the absence of provision of statute therefor. They are parts of the general system of highways which belongs to the state at large, and both the county and the township are charged with certain duties with respect to such bridges as are within their respective jurisdictions. Assuming, as the record shows, that the drainage proceeding in question was instituted prior to the taking effect of the highway act of 1905 (Acts 1905, p. 521, c. 167), we shall consider, in view of the limitation in section 123 thereof as to pending proceedings; the condition of legislation on the subject of such bridges at and prior to the operation of such act. Under then existing laws it may be said that each of said corporations possessed certain duties in respect to the construction and repair of highway bridges over water courses. See sections 3275-3282, 3284, 6834-6836, Burns' Ann. St. 1901; Board v. Allman, 142 Ind. 573, 42 N. E. 206, 39 L. R. A. 58. Bridges on free macadam roads are on the same footing. Board v. Mankey, 29 Ind. App. 55, 63 N. E. 864. Section 3277, supra, which relates to bridges over water courses, and which is a part of an act which has been regarded as the governing act for the construction of bridges of that character (Board v. Allman, supra; Deweese v. Hutton, 144 Ind. 114, 43 N. E. 13), provides that the township trustee may, if the board of county commissioners do not deem a bridge of sufficient importance to justify the making of an appropriation out of the county treasury for the building or repair of it, appropriate any part of the road tax fund in the township treasury for that purpose, if he shall deem it right and expedient so to do. It was stated in Board v. Allman, supra, wherein the bridge legislation of this state was carefully considered, that: “It is the duty of township trustees and road supervisors at all times to keep the bridges in repair, and protect them from injury”-citing sections 6818, 6832-6838, Burns' Ann. St. 184. Concerning such bridges, it may be said that it is the intendment of the law that counties shall make an appropriation for the building of those which exceed the ability of the district to pay for, by means available for that purpose, provided the public convenience shall so require; but they have a large, if not uncontrollable, discretion in the premises, and, even then, their appropriation is in aid of the township. Board v. Allman, supra; Deweese v. Hutton, supra. It was held in Board v. Allman, supra, that the right of the county to make repairs depends upon the supervisor applying the ordinary road work and tax, while in Deweese v. Hutton, supra, the court stated that, “primarily, bridge repairs are to be made by the road district in which the bridge is situated.” For fast driving over such a bridge, and willful injuries thereto, provision is made, by sections 3282, 3284, Burns' Ann. St. 1901, for a recovery in favor of the township superintendent, and, by the express terms of the first of said sections, and by the implication of the other, the recovery is to be applied to the repairs of such bridge.

The right to enjoin a threatened injury to the class of bridges referred to, caused by the execution of an order for the establishment of a public drain, cannot be in both corporations, nor can it be said to depend upon such varying circumstances as the size of the bridge, the importance of the highway, the ability of the township, and the taking of steps by the latter to cause the county to make an appropriation for the undertaking. The only reasonable view is that it is proper, in proceedings for the construction of public drains, to make the township trustee, upon whose township the primary duty of making the repairs rests, a party, as a necessary step in the obtaining of jurisdiction over the class of bridges we are considering. This course finds additional commendation in reason, if...

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4 cases
  • Karr v. Board of Commissioners of County of Putnam
    • United States
    • Supreme Court of Indiana
    • June 12, 1908
    ...... naming of the partners composing the American Steel Dredge. Works, which was named in the ......
  • Bonneville County v. Bingham County
    • United States
    • United States State Supreme Court of Idaho
    • May 10, 1913
    ...... the state at large. (American Steel Dredge Works v. Board. of Commrs., 170 ......
  • State v. Robert, 28342.
    • United States
    • Supreme Court of Indiana
    • January 23, 1948
  • State ex rel. Barner v. White Circuit Court, 29533
    • United States
    • Supreme Court of Indiana
    • January 14, 1958
    ...and procedure. However, when the Legislature re-enacted the drainage law in 1933, it also had before it the cases of Karr v. Board, etc., 1908, 170 Ind. 571, 581, 85 N.E. 15, and Neff v. Reed, 1884, 98 Ind. 341, 345, which were decided by this court prior to and therefore independent of the......

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