Barth v. Clay Tp.

• Decision Date: 02 July 1945
• Docket Number: 39353
• Citation: 188 S.W.2d 660,354 Mo. 90
• Parties: Charles W. Barth v. Clay Township, Harrison County, Missouri, and William Jones, George Hamilton, Roy Hullinger, Cleo Phillips, Grant Snethens, Lloyd DeLong and Herbert Land, Appellants
• Court: Missouri Supreme Court

188 S.W.2d 660

354 Mo. 90

Charles W. Barth v. Clay Township, Harrison County, Missouri, and William Jones, George Hamilton, Roy Hullinger, Cleo Phillips, Grant Snethens, Lloyd DeLong and Herbert Land, Appellants

No. 39353

Supreme Court of Missouri

July 2, 1945

Appeal from Harrison Circuit Court; Hon. V. C. Rose, Judge.

Reversed and remanded (with directions).

E L. Redman and C. B. DuBois for appellants.

(1) Equity acts only in personam. The judgment against Clay Township is a nullity as a matter of law. None of the Township board at the time of the institution of this action or now are parties to this action and in this case the court erred in rendering judgment against the individual defendants herein long after their term of office had expired and they were out of office, and in overruling defendants' objection made at the beginning of the trial to the introduction of any evidence for the reason that plaintiff's petition fails to state facts sufficient to constitute any cause of action or for the relief herein sought. 19 Am. Jur., p. 52, sec. 23, and p. 169, sec. 197; Pike v. Megoun, 44 Mo. 491; State ex rel. Funk v. Turner, 17 S.W.2d 986. (2) Plaintiff has not alleged or proven any special injury or damage to himself. Plaintiff did not suffer or sustain any special damage or injury not common to the public generally and plaintiff cannot maintain this action as an individual. Weller v. Mo. Lbr. & Mining Co., 176 Mo.App. 243, 161 S.W. 853; Oetting v Pollock, 189 Mo.App. 263, 175 S.W. 222; Patton v Forgey, 171 Mo.App. 1, 153 S.W. 575. (3) Mandatory injunction does not lie in this case. The statutes provide a complete and adequate remedy in cases where public roads are obstructed and plaintiff has a complete and adequate remedy at law. Sec. 8581, R.S. 1939; Wainscott v. Strode, 237 S.W. 196; Sec. 1683, R.S. 1939. (4) Mandatory injunctions are not regarded with judicial favors and are used only in cases of great necessity and courts are reluctant to interpose a mandatory writ. 28 Am. Jur., sec. 20, p. 213, and sec. 191, p. 212; Lyle v. Chicago, 93 A.L.R. 1492. (5) The road in question was abandoned and vacated by non-user of the public for more than ten years continuously prior to the removal of the tubes from the road in question. Sec. 8485, R.S. 1939; Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590. (6) Courts will not interfere by injunction with discretionary functions of a township. A court of equity will not attempt by injunction to substitute its own discretion for that of a township officer in matters belonging to the proper jurisdiction of the latter. Defendant township and its township board were the custodian and had the supervision and control of the road in question, its tubes, culverts and equipments for the use and benefit of the public and the township and its board has the discretionary authority with respect to the use of said road and its equipment, its upkeep, replacement and management and is authorized and empowered to use said tubes and road equipment in its discretion for the greatest public good and convenience. Secs. 8520, 8595, 8813, 8814, 8819, 8824, 13933, 13976, R.S. 1939. (7) Courts of equity do not interfere by injunction with the acts of township and its officers pertaining to matters properly under their jurisdiction for the purpose of controlling the acts of said public officers nor will they review and correct errors in the proceedings of such officers. Hughes v. State Board of Health, 345 Mo. 995, 137 S.W.2d 523; Selecman v. Matthews, 321 Mo. 1047, 15 S.W.2d 788, 63 A.L.R. 512; State ex rel. Snyder v. Bourke, 338 Mo. 86, 89 S.W.2d 31. (8) Acts of officers involving the exercise of discretion cannot be controlled by injunction. Kearney v. Laird, 164 Mo.App. 406, 144 S.W. 904; Schmidt v. Berghaus, 205 Mo.App. 409, 223 S.W. 939; State ex rel. Allen v. Dawson, 284 Mo. 247, 224 S.W. 824; 28 Am. Jur., sec. 162, p. 352. (9) In matters of injunction a court of equity is bound to stay its hand in the public interest where the private right invaded is merely a technical or unsubstantial one where the issuance of the writ occasions great public inconvenience, expense and prejudice. 28 Am. Jur., p. 254, sec. 57, p. 230, sec. 35; 32 C.J., sec. 384, p. 243. (10) Both the right and duty of an officer or branch of the government to act involves the exercise of discretion. The officers conduct with respect to such duties or discretion cannot be controlled by injunction. Interference in such a case would be to interfere with the ordinary functions of government. Louisiana v. McAdoo, 234 U.S. 627, 58 L.Ed. 1506; 32 C.J., pp. 243, 250, 253. (11) Where plaintiff's objective and motive in seeking mandatory relief, is to acquire a new road over a location of his own choosing and failing in this chastises the defendants and the public by forcing them to do an expensive, vain and useless thing, he has not come into court with clean hands and has not done equity and is not entitled to mandatory relief. 19 Am. Jur., p. 332, sec. 479; Bates v. Dana, 345 Mo. 311, 133 S.W.2d 326; Greene v. Spitzer, 343 Mo. 751, 123 S.W.2d 57; Frederich v. Union Elec. L. & P. Co., 336 Mo. 1038, 82 S.W.2d 79. (12) Plaintiff cannot resort to a court of equity for injunctive relief even though illegal acts are alleged and proven unless irreparable injury be shown. 28 Am. Jur., sec. 47, p. 242; Sylvester Coal Co. v. St. Louis, 130 Mo. 323; United Fuel Gas Co. v. Rd. Comm., 278 U.S. 300, 73 L.Ed. 390, 49 S.Ct. 150; Cruickshank v. Bidwell, 176 U.S. 73, 44 L.Ed. 377, 20 S.Ct. 280; Prendergast v. Blomberg, 141 S.W.2d 156. (13) Courts of equity will not compel by mandatory injunction political subdivision and its officers to do a useless thing. The remedy sought is of no value to the plaintiff and the public. It is impracticable and it is a physical impossibility for defendants to perform the mandatory order. Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597; Place v. Union Township, 66 S.W.2d 584; State ex rel. Hog Haven Farms, Inc., v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; Johnson v. Railroad, 227 Mo. l.c. 450, 127 S.W. 63. (14) A judgment in a suit in equity is reviewable on the merits and is heard by the Supreme Court de novo and while some deference is given to the finding of the trial judge, the Supreme Court will, if it finds itself at variance with the judgment of the trial court, order a new decree in accordance with the Supreme Court's finding. Edmondson v. Waterston, 342 Mo. 1082, 119 S.W.2d 318; Knickmeyer v. Fleer, 185 S.W.2d 57; Place v. Union Township, 66 S.W.2d 584.

C. C. Ross for respondent.

(1) Non-user of road, even if continued for the period of ten years, would not authorize an obstruction of the road. State v. Culiver, 65 Mo. 607. (2) The plaintiff and the public has a vested interest in a legally established highway and no one has a right to obstruct it. State v. Faith, 180 Mo.App. 166 S.W. 649. (3) There are only two ways to vacate a public road so as to authorize its obstruction. Secs. 8482, 8485, R.S. 1939; State v. Culiver, 65 Mo. 607; State v. Walters, 149 Mo. 657. (4) Where road not vacated, according to law, injunction will lie to restrain obstruction thereof. Rosendal v. Buecker, 27 S.W.2d 471. (5) To deprive one of a remedy by mandamus on the theory of adequate legal remedy, the legal remedy must be equally convenient and effective. State ex rel. v. Sale, 153 Mo.App. 273, 133 S.W. 119. (6) Mandamus is a legal and not an equitable remedy. State ex rel. v. Pythian Sisters, 227 Mo.App. 557, 54 S.W.2d 468. (7) Mandamus is an appropriate and proper remedy to compel a restitution of a highway to its former state and can be done by the plaintiff in his individual capacity. State ex rel. Morris v. Hannibal & St. J. Railroad Co., 86 Mo. 13; State ex rel. Tate v. Sevier, 334 Mo. 771, 68 S.W.2d 50; Walther v. Cape Girardeau, 166 Mo.App. 467; Bruce v. County, 26 Mo. 262. (8) Injunction will lie against a public corporation to prevent the doing of an unlawful act. Glasgow v. St. Louis, 87 Mo. 678; Lumber Co. v. Ry., 129 Mo. 455, 31 S.W. 706; Lockwood v. Ry., 122 Mo. 86, 26 S.W. 698. (9) Obstruction of a highway may be both a public and a private nuisance and a private citizen may have injunctive relief. Schopp v. St. Louis, 117 Mo. 131, 22 S.W. 898; Cummings v. St. Louis, 90 Mo. 259; Road District v. Drainage District, 199 S.W. 716; State ex rel. v. Feitz, 174 Mo.App. 456, 160 S.W. 585.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

Plaintiff instituted a mandamus proceeding in the Circuit Court of Harrison County, Missouri, against Clay township and certain individuals who had served on the township board and two defendants who had been road overseers, to compel them to replace five culverts in a public road which had been removed by the road overseers at the direction of the township board. The trial court entered a decree against the township and the defendants who had served on the board to replace four of the culverts. No decree was entered against the road overseers. The township and the defendants against whom the decree was entered appealed.

The road involved the northerly portion of a north and south road running through sec. 32 and fractional sec. 29, township 67 in Clay township, Harrison county Missouri. The record shows that there was a public road running east and west along the northerly line of sec. 29, which is likewise the state boundary line between Iowa and Missouri. It was also shown that there was a road running in an easterly and westerly direction along the southerly line of sec. 32. The road here in question connected with the two east and west roads just mentioned. The two east and west roads were also connected by north and south roads. One was located about a mile and a half west of the...