French v. Lewis & Clark Cnty.
| Citation | 87 Mont. 448 |
| Decision Date | 29 May 1930 |
| Docket Number | No. 6628.,6628. |
| Parties | FRENCH v. LEWIS AND CLARK COUNTY. |
| Court | United States State Supreme Court of Montana |
OPINION TEXT STARTS HERE
Appeal from District Court, Lewis and Clark County; W. H. Poorman, Judge.
Action by George French against County of Lewis and Clark. From a judgment dismissing the complaint, plaintiff appeals.
Reversed and remanded, with direction.
C. A. Spaulding, of Helena, for appellant.
George W. Padbury, Jr., and A. P. Heywood, both of Helena, for respondent.
The plaintiff, George French, brought action against Lewis and Clark county for the recovery of $1,912, alleged to be due him for the construction of a county road. Defendant interposed a general demurrer to his complaint, which was sustained, and, plaintiff refusing to further plead, judgment of dismissal was duly entered. From this judgment plaintiff has appealed.
For the purpose of determining the sufficiency of the complaint all facts alleged must be deemed true, and the only question for determination is whether or not, on those facts, liability on the part of the county is shown. Briefly stated, the facts as alleged are as follows:
The plaintiff is the owner of certain lands within the defendant county, situated along a creek bottom in a canyon having precipitous walls effectively barring livestock and rendering the land inclosable by a fence approximately 300 feet in length at each end of the land. Such a fence has been maintained thereon since 1868 and up to recent times, with gates therein for the accommodation of the public.
In 1903, on petition, the board of county commissioners of defendant county established a county road across plaintiff's land, but with the agreement that he should be permitted to maintain the fences as theretofore. This road was duly “surveyed, located, laid out, dedicated and established” but was not constructed, and the public was permitted to traverse plaintiff's land by divers routes and, in addition, though refusing to construct the road, the defendant by threats of criminal prosecution compelled plaintiff to remove his fences, thus abandoning his crops to the public at large and to roving live stock.
In 1926, faced with the alternative of abandoning his property, plaintiff himself constructed the road–this with “full knowledge” and acquiescence of the county, and immediately upon completing the road it was accepted by the county as a county road and thereafter the county “cared for and maintained it.” Plaintiff expended $1,000 in construction and $456 in building a fence along one side of the road and will be required to expend a like amount in fencing the other side.
The complaint closes with the allegation that “plaintiff has repeatedly demanded as required by law that said defendant pay him the hereinbefore mentioned cost of construction of said road and the fencing thereof, but to pay the same or any part thereof said defendant has repeatedly refused and does now refuse.”
The law as it existed in 1903 and as it exists to-day (section 2631, Political Code 1895, section 1357, Rev. Codes 1907; section 1622, Rev. Codes 1921, chapter 59, Laws of 1929) commands boards of county commissioners to “cause to be surveyed, viewed, laid out, recorded, opened, worked, and maintained such highways as are necessary for public convenience. * * *” The necessity for the highway in question was determined when the board allowed the petition therefor and established it, and that board is shown to have fully discharged its duties with reference thereto, except that it was not “opened” as required. Since its construction the county has “cared for and maintained” it as a county road; this allegation is equivalent to the statutory requirement “worked and maintained.”
“All highways * * * laid out or erected by others * * * are public highways.” Section 1612, Rev. Codes 1921. As the conjunction “or” is used, the highway described became a county road, or public highway, on being “laid out” whether “erected” or not.
The term “to lay out,” when used with reference to highways, “has been from the earliest times, the appropriate expression for locating and establishing a new highway” (Foster v. City of Boston Park Commissioners, 133 Mass. 321;Borrowdale v. Board of Commissioners, 23 N. M. 1, 163 P. 721, L. R. A. 1917E, 456), and means the taking of all necessary legal steps for the establishment of, and looking toward, the construction of a highway, but does not include the actual physical act of construction (Gaines v. Commissioners, 37 N. J. Law, 12; Hough v. City of Bridgeport, 57 Conn. 290, 18 A. 102;Leahy v. Street Com'rs of City of Boston, 209 Mass. 316, 95 N. E. 834;Decker v. Washburn, 8 Ind. App. 673, 35 N. E. 1111). When once “laid out” according to law, a highway does not become extinct through not being opened or used by the public. Baltimore & Ohio & C. R. Co. v. Town of Whiting, 30 Ind. App. 182, 65 N. E. 759;Clare v. Wogan, 204 Iowa, 1021, 216 N. W. 739.
It is apparent, then, from the allegations of the complaint that for many years a public highway existed over and across plaintiff's land, to his great damage, inasmuch as it was “opened” to the extent of requiring him to throw open his fences, but not opened in such manner as to confine travel to it. From the moment this road was laid out, the duty rested upon the county board to construct it either under contract, or otherwise, if in the judgment of the commissioners it could be constructed at less cost in some other manner. Section 1645, Rev. Codes 1921. The discretion thus vested in the board would have justified it in contracting with the plaintiff for the construction of the road, if, in the judgment of the members of the board, the plaintiff could have done the work on his own premises and at his leisure at a material saving to the county. This the board did not do, but, as alleged, “the county” had full knowledge that the plaintiff was proceeding to discharge the duty resting upon its managing officers and acquiesced in his so doing, and, “immediately” upon the completion of the road, accepted it as a county highway, and ever since has cared for and maintained it as such for the use of the traveling public.
These facts being admitted, for the purpose of the demurrer, liability exists under two principles of law which are well established.
A contract may be either express or implied (section 7514, Rev. Codes 1921), the latter being one the existence and terms of which are manifested by conduct (section 7516, Id.); but there is a third class of obligation, not properly a contract at all, but which, for lack of a better term, is referred to as a “quasi contract.” “Contracts implied in law or more properly quasi or constructive contracts are a class of obligations which are imposed or created by law without regard to the assent of the party bound on the ground that they are dictated by reason and justice and which are allowed to be enforced by an action ex contractu.” 13 C. J. 244.
Under this doctrine, the first principle of liability applicable here is that “when the law imposes upon one an obligation to do something which he declines to do, and which must be done to meet some legal requirement, the law treats performance by another as performance for...
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