Anderson v. The Board of County Commissioners of The County of Cloud

• Decision Date: 07 June 1913
• Docket Number: 18,265
• Citation: 132 P. 996,90 Kan. 15
• Parties: C. G. ANDERSON, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLOUD, Appellee
• Court: Kansas Supreme Court

132 P. 996

90 Kan. 15

C. G. ANDERSON, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLOUD, Appellee

No. 18,265

Supreme Court of Kansas

June 7, 1913

Decided January, 1913.

Appeal from Cloud district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INJUNCTION--Removal of Bridge--Too Late to Review Ruling Sustaining Demurrer to Petition. In an action for an injunction to prevent the removal of a county bridge from one location to another a demurrer was interposed to the petition. An application for a temporary injunction was denied after a hearing in which all the material facts presented by the petition were considered. On appeal to this court the law applicable to the case was stated, and the order denying a temporary injunction was affirmed. The county board then removed the bridge. Afterwards the demurrer to the petition came on for hearing and was sustained. The plaintiff again appeals. Held, the ruling sustaining the demurrer will not be reviewed.

2. COUNTIES--Not Liable for Damages Caused by Removing County Bridge. The action was brought against the board of county commissioners as a corporate body. The petition contained an allegation that the plaintiff would be damaged by a removal of the bridge in a sum in excess of $ 5000. Held, the petition does not state a cause of action for damages since the law does not impose upon the county an obligation to respond in damages in cases of this character.

F. W Sturges, and F. W. Sturges, jr., both of Concordia, for the appellant.

A. L. Wilmoth, of Concordia, for the appellee.

OPINION

BURCH, J.:

The plaintiff brought suit to enjoin the board of county commissioners from removing a bridge from its location across the Republican river and reestablishing it at another place. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The plaintiff made application for a temporary injunction to prevent the removal of the bridge pending the litigation. After a hearing the court made elaborate findings of fact, covering all the grounds for relief presented by the petition, and a temporary injunction was refused. On appeal to this court the judgment of the district court was affirmed on November 9, 1910. (Anderson v. Cloud County, 83 Kan. 419, 111 P. 464.) There then remained on file in the district court the petition and the demurrer. In May, 1912, the district court sustained the demurrer and rendered judgment against the plaintiff for costs. The present appeal is taken from that judgment.

It is admitted that after the former appeal was determined the bridge was removed and relocated as the petition charged it would be if the court did not interfere. If the cause were remanded with direction to overrule the demurrer the district court would be unable to prevent the removal of the bridge by the process prayed for. An event occurring subsequent to the filing of the petition has rendered an injunctive order incapable of enforcement. The controversy has been reduced to one concerning an abstract question of law involving nothing of substance to the parties except costs, and appeals are not heard for the determination of matters of costs only. The principle involved is sufficiently discussed in the following cases: Hurd v. Beck, 88 Kan. 11, 45 P. 92; The State, ex rel., v. Board of Health, 58 Kan 817, 51 P. 1101, post, p. 18, 51 P. 1101; The State, ex rel., v. Railway Co., 60...