Board of Commissioners v. Mankey

• Decision Date: 01 May 1902
• Docket Number: 4,334
• Citation: 63 N.E. 864,29 Ind.App. 55
• Parties: BOARD OF COMMISSIONERS ET AL. v. MANKEY
• Court: Indiana Appellate Court

63 N.E. 864

29 Ind.App. 55

BOARD OF COMMISSIONERS ET AL. v. MANKEY

No. 4,334

Court of Appeals of Indiana

May 1, 1902

From Warren Circuit Court; J. M. Rabb, Judge.

Suit by John Mankey against the board of commissioners of Warren county and others. From a decree for plaintiff, defendants appeal.

Affirmed.

H. D Billings and J. C. Stephens, for appellants.

C. V McAdams, for appellee.

OPINION

ROBINSON, P. J.

Suit by appellee to enjoin appellants from cutting down the grade of an established free gravel road, and to set aside an appropriation of money made to pay for the work. The principal question presented by the pleading is whether the board of county commissioners, acting as free gravel road directors, may, in making repairs, substantially change the established grade of a free gravel road. Appellee owns lands along the road, and appellants, as turnpike directors, are threatening to cut down a certain hill in the road in front of appellee's lands a depth of six feet below the top of the grade as constructed, and to use for that purpose a sum of money appropriated by the county council from the gravel road repair fund.

It is claimed by appellee that it is not necessary, to restore and repair the road and place it in the same condition as when constructed, to cut the hill in any manner or to any extent. Appellants claim that because of the steepness of the grade the surface waters wash away the gravel and render the road unfit for travel, and that, in order to keep it in repair without great and unreasonable expense, it is necessary to reduce the grade of the hill by cutting the same down to such an extent as appellants may find necessary, and that properly to maintain the road in repair, and for the purpose of getting dirt to place around the abutments of a bridge at the foot of the hill, it is expedient and necessary to reduce the grade of the hill to such an extent as appellants may find necessary when entering upon the work.

The management and control of free gravel, macadam, and free turnpike roads are vested in the county commissioners as a board of directors for all such roads in the county. They are given authority to do such acts, in the way of employing labor and purchasing material, as are necessary to keep the roads in repair. § 6868 Burns 1901. And provision is made for a fund to pay the cost and expenses of such repairs. § 6873 Burns 1901. See Byram v. Board, etc., 145 Ind. 240, 33 L.R.A. 476. It is true a discretion is vested in the board as to when and to what extent repairs shall be made. The question of the necessity and expediency of repairing the road is not a question to be determined by any judicial proceeding, but is wholly within the discretion of the board. But this discretion is as to the making of repairs only, and not the improvement of the road by practically reconstructing a portion of it. To repair is "to restore to a sound or good state after decay, injury, dilapidation, or partial destruction." Webster. Pittsburg, etc., R. Co. v City of Pittsburg, 80 Pa. 72. Weaver v. Templin, 113 Ind. 298, 14 N.E. 600. A gravel road is supposed to be a permanent and lasting improvement, and complete provision is made by statute for the construction of such roads and for providing funds to pay the cost. §§ 6857, 6858, 6859, 6860 Burns 1901. If a completed road, or portions of it, should, for any reasons, need to be reconstructed or improved, the legislature must provide the method. No such authority is given the board as turnpike directors. They are authorized to make repairs only, that is, to bring the road back to its former state as nearly as practicable. The authority to repair does not carry with it the power to raise the grade of the road, or to lower it, no matter how much the improvement is needed. When they have restored the road as nearly as practicable to its former condition, they have exercised all the authority vested in them as to repairs. They may restore the road, but they can not materially change it. If the grade may be cut down in one place, it may be raised in another, and thus practically a new road constructed throughout its entire length, and paid for out of a fund expressly provided for making repairs. The board has no authority, in making repairs, to make any material departure from the original established grade of the road. Board, etc., v. Gwin, 136 Ind. 562, 588, 22 L. R. A. 402, 36 N.E. 237; Western, etc., Co. v....