Karr v. Board of Commissioners of County of Putnam
| Citation | 85 N.E. 1,170 Ind. 571 |
| Decision Date | 12 June 1908 |
| Docket Number | 21,292 |
| Parties | Karr et al. v. Board of Commissioners of the County of Putnam |
| Court | Supreme Court of Indiana |
From Montgomery Circuit Court; A. F. White, Special Judge.
Suit by the Board of Commissioners of the County of Putnam against James P. Karr and others. From a decree for plaintiff defendants appeal. Transferred from Appellate Court under § 1394 Burns 1908, cl. 2, Acts 1901, p. 565, § 10.
Reversed.
Million & Hanna, M. M. Hathaway and Renner & McNutt, for appellants.
John H James, Thomas T. Moore and James P. Hughes, for appellee.
This suit was brought by the Board of Commissioners of the County of Putnam, in the year 1906, to obtain an injunction. We observe in the assignment of errors a slight defect in the naming of the partners composing the American Steel Dredge Works, which was named in the amended complaint as a defendant. The variance comes within the rule of idem sonans, and leaves no doubt as to the intendment. We do not regard the defect as jurisdictional, and shall treat it as waived. Landon v. White (1885), 101 Ind. 249. The latter observation also covers a defect in the naming of appellee.
The amended complaint was in two paragraphs, to each of which a demurrer was overruled. There was a finding for appellee on the first of said paragraphs, and a finding against it on the second. From the final decree which followed, appellants appeal. The only error we shall rule on is based on the overruling of the demurrer to the first paragraph of the amended complaint.
Said paragraph alleges appellee's exclusive control, management, maintenance and ownership of four bridges, having public and greatly used and traveled highways of said county leading to, from and over said bridges, one of which highways is a free macadam road; that three of said bridges are along a natural but non-navigable watercourse running through said county, while the fourth (known as the Parker bridge), which also leads across said stream, is a county-line bridge, and is owned in equal interests by the counties of Putnam and Morgan; that said bridges are of certain value (which is alleged), and in good condition and repair; that the defendants and each of them are threatening to, and state that they will, unless enjoined, tear down, remove and destroy said bridges, and will cut out, dig, dredge and remove the earth in the channel of said stream and will undermine the stone abutments which give support to said bridges, and make said abutments unsafe to support said bridges, and will destroy them, to the great and irreparable injury of plaintiff in a certain alleged sum. The complaint then proceeds as follows: "That the defendants and each of them claim to have some right or contract to tear down and remove said bridges and each of said bridges, but plaintiff says that neither the board of commissioners nor any member thereof, nor the county of Putnam, nor any one representing the county of Putnam, nor the board of commissioners of said county, has ever in any way or manner whatever been made a party to any drainage proceeding or proceedings, or action of any kind in any court, and that none of them has ever in any manner whatever been named in any complaint or petition filed in any court, or in any way appeared to or joined in any proceeding, and that the interest, title or right in and to the property described in the complaint has never been described, named or mentioned in any complaint or petition of any kind in any court, and there has never been any action or proceeding of any kind brought or commenced in any court in which it was asked, as against them or either of them, to do the things, or any of them, which defendants are now threatening to do as alleged in the complaint, and that none of them has ever in any way or manner been notified of any such proceedings of any kind or nature whatever, and that no process or notice has ever been served or posted of any drainage proceeding or of any proceedings or actions of any kind in any court, and that none of them has ever had any notice of any proceeding or actions in which it was sought or asked to do the things, or any of them, which defendants are now threatening to do, or which would in any way interfere with or in any way affect or disturb the right, title or interest in said property over which plaintiff has control, or in and to the property, or any of it, described in plaintiff's complaint."
The fact appears from the record, and in view of the silence of the complaint we may assume, that the drainage proceeding was had in a court of general jurisdiction (it was in fact in the Morgan Circuit Court). The evidence, which is in the record, further shows that said drainage proceeding was instituted while the act of 1885 concerning drainage was in force. As shown, there is an allegation in the complaint of ownership by the county of the various bridges involved, but as we are led to infer from the discussion that all but the Parker bridge, while they are highway bridges extending over watercourses, do not extend over the division line of any county or township, and as there is no allegation that the township trustees of the proper townships were not in court, it appears important, in order to limit the extent of this litigation, if our assumption be correct, to consider whether the county has a standing to complain of an injury to such bridges.
Passing over for the present the question of joint county line bridges, as well as the matter of bridges for the building of which townships have voted aid, we shall proceed to consider the relationship of the county and the township to highway bridges over watercourses, built and maintained under the general statute.
In a strict sense of the term there is no local ownership of public highway bridges, in the absence of provision of statute therefor. They are parts of the general system of highways which belongs to the state at large, and both the county and the township are charged with certain duties with respect to such bridges as are within their respective jurisdictions. Assuming, as the record shows, that the drainage proceeding in question was instituted prior to the taking effect of the highway act of 1905 , we shall consider, in view of the limitation in section 123 thereof (§ 6863 Burns 1905) as to pending proceedings, the condition of legislation on the subject of such bridges at and prior to the operation of such act. Under then existing laws each of said corporations possessed certain duties in respect to the construction and repair of highway bridges over watercourses. See §§ 3821-3828, 3830 Burns 1908, and §§ 6834-6836 Burns 1901, §§ 2885-2893 R. S. 1881 and Acts 1883, p. 62, §§ 20-22; Board, etc., v. Allman (1895), 142 Ind. 573, 39 L.R.A. 58, 42 N.E. 206. Bridges on free macadam roads are on the same footing. Board, etc., v. Mankey (1902), 29 Ind.App. 55, 63 N.E. 864. Section 3823, supra, which relates to bridges over watercourses, and which is a part of an act which has been regarded as the governing act for the construction of bridges of that character (Board, etc., v. Allman, supra; Deweese v. Hutton [1896], 144 Ind. 114, 43 N.E. 13), provides that the township trustee may, if the board of county commissioners do not deem a bridge of sufficient importance to justify the making of an appropriation out of the county treasury for the building or repair of it, appropriate any part of the road tax fund in the township treasury for that purpose, if he shall deem it right and expedient so to do. It was stated in Board, etc., v. Allman, supra, wherein the bridge legislation of this State was carefully considered, that "it is the duty of township trustees and road supervisors, at all times, to keep the bridges in repair and protect them from injury," citing §§ 6818, 6832-6838 Burns 1894, Acts 1883, p. 62, §§ 5, 18-24. Concerning such bridges, it may be said that it is the intendment of the law that counties shall make an appropriation for the building of those which exceed in cost the ability of the district to pay for, by means available for that purpose, provided the public convenience shall so require; but they have a large, if not uncontrollable, discretion in the premises, and even then their appropriation is in aid of the township. Board, etc., v. Allman, supra; Deweese v. Hutton, supra. It was held in Board, etc., v. Allman, supra, that the right of the county to make repairs depends upon the supervisor's applying the ordinary road work and tax, while in Deweese v. Hutton, supra, the court stated that "primarily, bridge repairs are to be made by the road district in which the bridge is situated." For fast driving over such a bridge and wilful injuries thereto provision is made by §§ 3828, 3830, supra, for a recovery in favor of the township superintendent, and, by the express terms of the first of said sections, and by the implication of the other, the recovery is to be applied to the repairs of such bridge.
The right to enjoin a threatened injury to the class of bridges referred to, caused by the execution of an order for the establishment of a public drain, cannot be in both corporations, nor can it be said to depend upon such varying circumstances as the size of the bridge, the importance of the highway, the ability of the township, and the taking of steps by the latter to cause the county to make an appropriation for the undertaking. The only reasonable view is that it is proper in proceedings for the construction of public drains to make the township trustee, upon whose township rests the primary duty of making the repairs, a party, as a necessary step in the obtaining of jurisdiction over the class of...
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