Bohan v. The Board of County Commissioners of The County of Sumner and J. W. Mavity

• Decision Date: 05 July 1930
• Docket Number: 29,272
• Parties: FRANK BOHAN, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SUMNER and J. W. MAVITY, County Engineer of Sumner County, Appellees
• Court: Kansas Supreme Court

289 P. 436

131 Kan. 87

FRANK BOHAN, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SUMNER and J. W. MAVITY, County Engineer of Sumner County, Appellees

No. 29,272

Supreme Court of Kansas

July 5, 1930

Decided July, 1930.

Appeal from Sumner district court; LAFAYETTE H. FINNEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MANDAMUS--County Commissioners--Compelling Connection With Highway. Where the owner of land fronting on a public highway seeks by mandamus to compel the board of county commissioners and county engineer, as provided by R. S. 68-543, to construct a culvert over a ditch along the highway, which ditch obstructed the usual entrance connecting the owner's property with the public highway, and the pleadings and evidence show that something more than the culvert mentioned in the statute is needed and required to effect such connection because of the lowering of the road and surrounding land by flood and the reconstruction of the road on piling four or more feet above the general level, which would require a fill or bridge to now make such connection with the highway, and it is further shown by the pleadings and evidence that the board of county commissioners had laid out a private road for the use of the plaintiff landowner: Held, that mandamus will not lie because the end desired is not the performance of an act specifically enjoined by the statute (R. S. 68-543), and because the matter is not a ministerial duty, but is administrative and its determination involves the exercise of discretion; also, because a private road and connection had already been laid out by the board for the use of the plaintiff.

J. Graham Campbell and W. M. Glenn, both of Wichita, for the appellant.

Bert E. Church, county attorney, E. J. Taggart and John Bradley, all of Wellington, for the appellees.

OPINION

HUTCHISON, J.:

This is an action in mandamus by the owner of land with about 120 feet of frontage on the north side of a public highway in Sumner county to compel the board of county commissioners and the county engineer, under R. S. 68-543, to construct a culvert over a ditch along the public road in front of his property and separating his property from the highway.

The plaintiff in his petition alleged that for many years he had enjoyed direct connection and access to and with the highway until April, 1927, when defendants constructed a ditch of such depth as to obstruct the usual entrance connecting his property with the highway, and further alleged that defendants constructed a wooden trestlework, runway or bridge as an approach to the bridge across the river, obstructing the usual entrance connecting plaintiff's property.

Plaintiff further alleged that prior to and during the construction of such trestlework bridge he was assured by the defendants that if he would refrain from bringing any legal proceedings to restrain the work they would and did agree that suitable and sufficient road or bridge would be built giving him access to the highway from his land, and since the construction of the bridge they have refused to do so. The alternative command of the writ was "to construct either a culvert, a fill, or a culvert with a fill, or a bridge such as would be necessary to provide and maintain the usual entrance connecting the plaintiff's said property with said public highway."

The answer to the alternative writ was a general denial, and it was alleged therein that to grant the plaintiff a connection with the trestlework bridge where his connection was before the flood, which made necessary the building of the bridge approach, would result in a hazardous and dangerous condition to the roadway, and it was not, in the opinion of the defendants, a practical thing to do, and the action of the plaintiff is to prevent them as officials from the exercise of their discretion. The answer further alleged that a private road had been laid out by the board, on petition of plaintiff, affording him access to the public highway west of where he now demands such access, and that plaintiff acquiesced therein by paying the condemnation money awarded.

An agreed statement of facts and the testimony of plaintiff show that plaintiff's land is bounded on the south by this public highway, which leads to the bridge over the river running along the east side of plaintiff's land. The recent flood washed away the road as well as the surrounding land to a considerable depth, so that when the trestlework bridge was constructed to the same height as before it was from four to six feet above the level of ground on the north side of the highway. It was supported on piling, and the approach to the bridge extended past the whole frontage of plaintiff's land and eighty feet further to the west, where it first struck the grade. It was an eighteen-foot slab road on the piling and continued the same width where it struck the grade to the west, but was then in a road sixty feet wide.

Plaintiff for many years conducted a camping resort on his land, where he had erected seven tourist cottages. He leased the tract directly south of his and across the highway, and owned and operated thereon, in connection with his cottages on the north, a restaurant, accessory and auto-supply store, bath house, bathing pool, boating facilities and some cottages.

The old road at grade afforded easy access between the two tracts. Just west of plaintiff's land fronting on the highway is a tract 350 feet long running west along the highway and 150 feet north and south. Plaintiff's former access or crossing was just at the east end of this Hilton tract, and what he petitioned for was a crossing 100 feet farther west, which would have cut the Hilton land in two, with 100 feet on the east and 250 feet on the west side of such private crossing. Plaintiff's own land continued west as far as that of Hilton's, but separated on the western extension from the highway by the Hilton land 150 feet wide. The private road was located by the county board at the west end of the Hilton tract, or 250 feet farther west than requested by plaintiff and 350 feet farther west than where plaintiff now demands it.

Hilton and the neighbor still farther to the west are engaged in the same line of business as plaintiff, and by the use of the private road customers will have to pass the camps of these two competitors to reach the plaintiff's grounds.

The trial court sustained a demurrer to plaintiff's evidence, from which ruling the plaintiff appeals.

The questions involved, as stated by the appellant, are: first, the right of the plaintiff to the equitable relief sought in the action; and second, the error in rejecting the evidence offered by the plaintiff to explain the relation of the plaintiff to the proceedings before the county board in connection with the laying out of the private road at the west end of the Hilton land.

Appellant presses his right to equitable relief because he has no adequate remedy at law, and particularly has no right to recover damages. He cites many cases to the effect...