Appeal
from Superior Court, Moore County; Neal, Judge.
Action
by E. F. Glenn for a mandamus to compel the board of
commissioners of Moore county and others to repair a public
bridge, and for an injunction restraining them from erecting
another bridge. From a judgment in favor of defendants
plaintiff appeals. Affirmed.
Action, prosecuted by plaintiff in his individual right and
as a taxpayer of Moore county, for the purpose of having a
mandamus directed to the defendant board of commissioners
commanding it to repair a public bridge over Deep river and
an injunction restraining said defendant from erecting
another bridge over said river some distance below the
present one. The cause coming on to be heard before Judge
Neal upon an order to show cause, he found the following
facts: "That about the year of 1882 or 1883 a bridge was
constructed over Deep river, in Moore county, at Glenn's
Mill. That Dr. R. W. Glenn, the father of the plaintiff
constructed the said bridge at a cost of about $4,000. That
after the construction of the said bridge the board of
commissioners made an order in favor of the said Dr. R. W
Glenn on the treasurer of the said county for the sum of
$1,250 toward the amount expended for the erection of the
said bridge. That at the time of the building of the bridge
aforesaid and the issuing of the order aforesaid the said Dr.
R. W. Glenn was the owner of the lands on both sides of the
river at the place where the said bridge was constructed.
That at the time of the construction of the said bridge and
the issue of the said order, or shortly before or after said
times, the said Dr. R. W. Glenn opened up the public roads
over his said lands leading to the bridge on both sides of
the said river, and the said board accepted said roads as
public roads, and have used and worked the same as public
roads ever since. That since the said time the public has
used the said bridge. That the plaintiff is now the owner of
the lands referred to as owned by Dr. R. W. Glenn on both
sides of the river, having acquired ownership as one of the
heirs of Dr. R. W. Glenn and by purchase from the other
heirs. That the plaintiff is a freeholder of the county of
Moore, and a taxpayer therein. That the proposed new bridge
contracted for by the defendant board is about one-half mile
from the old bridge at Glenn's Mill. That after the
building of the said bridge, and after it had been received
as a public bridge by the board of commissioners of Moore
county, the said Dr. R. W. Glenn, the plaintiff, and the
co-owners of the property, as set forth in the complaint,
constructed the buildings on their real property on both
sides of the river at Glenn's Mill, and made the
improvements alleged in the complaint, or some of them. That
the buildings were constructed and the improvements made with
reference to the said contract and the bridge at Glenn's
Mill. That a failure to keep the bridge in repair at
Glenn's Mill will damage the plaintiff in his property.
That the bridge so constructed at Glenn's Mill in 1882 or
1883 became the property of the county. That the board of
commissioners since that time made frequent repairs on said
bridge. That the board of commissioners of Moore county, upon
complaint made as to the condition of said bridge, appointed
a special committee to examine said bridge and report to the
board, and that said committee made the report attached to
the answer of said board marked 'Exhibit A,' and made
a part thereof. That thereafter the commissioners of said
county made personal examination of the site of the old
bridge, and the site of the proposed new bridge, and the
other sites, and thereafter, on the 3d day of July, 1905,
made the order attached to the complaint marked 'Exhibit
B.' That on the 3d day of July, 1905, the defendant
entered into the contract attached to the answer,
"Exhibit C.' That the board of commissioners of
Moore county has found the facts: (1) That the construction
of a bridge over Deep river, at a point near Glendon, in
Moore county, is a public necessity; (2) that the proper site
for said bridge is at the Hancock old bridge site near the
Tyson place. That the old bridge at Glenn's Mill is out
of repair. That it is not the intention of the board of
commissioners to discontinue the public roads leading to
Glenn's Mill. That there is no public road in use leading
to the site which has been selected for said bridge, but said
board has in contemplation the opening of public roads to and
from said bridge; that the owner of the property on the north
side of said bridge has agreed with said board to donate to
the county sufficient land for the construction of a road to
said bridge; and that arrangments have been made for the
construction of said road without expense to the county. That
on the south side of the river there is a distance of perhaps
150 yards between the site selected and the public road; that
a petition has been filed before the board of commissioners
praying that a public road be opened over the plaintiff's
land, so as to connect the site of said bridge with said
public road; and that said petition is now pending before the
board, and the board has in contemplation the construction of
a public road leading to the proposed bridge. That the
proposed new bridge contracted for by the defendant board is
about one-half mile from the old bridge at Glenn's Mill.
That the said defendant board of county commissioners acted
honestly and for what they conceived to be the best interest
of the people of Moore county." Plaintiff requested the
court to find certain other facts not necessary to be set
out. His honor upon the findings dissolved the restraining
order and refused to grant an injunction to the hearing.
Thereupon the defendants demurred ore tenus, and moved the
court to dismiss the action because the complaint did
not set forth facts sufficient to constitute a cause of
action. Motion allowed, and plaintiff appealed.
CONNOR
J. (after stating the facts).
Two
causes of action are set forth in the complaint, although not
stated separately as directed by the Code. The plaintiff
first relies upon the contract made with his ancestor during
the year 1882, by which he insists that the county of Moore
is obligated to maintain and keep in repair the public bridge
across Deep river, which was, pursuant to said contract
built by his father, who then owned the land upon which he
erected a public mill, and that performance of this contract
may be specifically enforced by the writ of mandamus. This
claim is entirely independent of the demand that the
defendant be enjoined from erecting a second bridge one-half
mile below the present bridge. It is very doubtful whether
the two causes of action--one to enforce a contractual right
having no connection with his right as a taxpayer in common
with all other citizens of the county, and the other
dependent entirely upon such relation to enforce the
performance of a public duty--can be joined. As his honor
disposed of the cause upon a broader ground, we prefer not to
pass upon this question of pleading. We do not think it
competent for a board of commissioners to enter into a
contract with a citizen to perpetually maintain and keep in
repair a public road or bridge, giving to such citizen a
cause of action against the county whenever, in the exercise
of its discretion in the interest of the public, the same or
another board shall deem it proper to discontinue such road
or bridge. The power vested in and duly imposed upon boards
of commissioners to open and maintain roads and erect and
keep in repair public bridges is for the benefit of the
public, and they have no power to exercise it for any other
purpose, or to bind their successors in that respect. The
Legislature and the...
