Lamphier v. Karch
| Decision Date | 27 October 1915 |
| Docket Number | No. 8649.,8649. |
| Citation | 59 Ind.App. 661,109 N.E. 938 |
| Parties | LAMPHIER v. KARCH et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Jasper County; C. W. Hanley, Judge.
Action by George Lamphier against Fred Karch and others. Judgment for defendants, and plaintiff appeals. Affirmed.
John A. Dunlap and E. M. La Rue, both of Rensselaer, for appellant. W. H. Parkinson, of Indianapolis, and Abraham Halleck, of Rensselaer, for appellees.
[1] Appellant's horse, while being led by him along a public highway of road district No. 2 in Walker township, Jasper county, stepped into a hole in the floor of a bridge that spanned a ditch crossing the highway, and was injured. Appellee Karch at the time was trustee of the township, and appellee Brown was supervisor of the road district. Appellant brought this action against appellees as individuals to recover damages on account of injuries to the horse. The action is predicated on the alleged negligent failure of appellees as such officials to keep the bridge in repair. The demurrer of each appellee to the complaint was sustained, and judgment rendered against appellant for failure to plead over. This appeal presents the single question of whether a township trustee or a road supervisor, as an individual, is liable to respond in damages to any one who suffers an injury in his person or property by reason of the failure of such official to keep in repair a bridge which is in the line and a part of a public highway within his jurisdiction.
Appellant states his proposition as follows:
No question of malfeasance or misfeasance is involved.
On the question presented here, there is so much discord among the decisions of courts of appeal of the various jurisdictions that to harmonize them is impossible. See cases collected in notes to the following: Tholkes v. Decock, 52 L. R. A. (N. S.) 142;Bates v. Horner, 22 L. R. A. 824;Worden v. Witt, 95 Am. St. Rep. 70. We proceed to determine the matter in the light of our own statutes.
[2][3] Statutory provisions to the following effect were in force at the time of the transaction involved here, the reference being to Burns 1908:
Any person who has official supervision of the roads in any district, and who fails to keep the ways and bridges in such district in as good repair as the available means will enable him to do, is liable to a fine on conviction. Section 2435. The road supervisor who fails to use due diligence in keeping the highways of his district in good repair, under the regulations prescribed by statute, is liable to a penalty recoverable for the benefit of the district. Section 7784. He may use timber standing within the limits of a highway for the purpose of repairing such highway or any bridge thereon. Section 7777.
The trustee is the superior officer, and the supervisor must carry out his orders when specifically given. State ex rel. v. Clifton, 157 Ind. 581, 62 N. E. 271. The duty of a supervisor to keep highways in good repair is a public duty imperative and not discretionary, and he may be compelled by mandate to perform such duty. State ex rel. v. Kamman, 151 Ind. 407, 51 N. E. 483. The township advisory board is authorized to levy a road tax on an estimate made by the trustee, and the trustee with the consent of the advisory board may levy an additional road tax to be expended for the construction and repair of bridges and for other road purposes. Section 7780. The trustee controls the expenditure of the funds so arising, and he may pay the same out, as he may deem necessary on the order of road supervisors for work done by them under his direction. Section 7781. The trustee may let the contract for the improvement or repair of highways and bridges to the lowest responsible bidder. Section 7782. If the township trustee shall notify the board of county commissioners of the necessity of locating or repairing any bridge or culvert in his township, the commissioners, if they deem that public convenience requires the work to be done, are required to make surveys and estimates and provide for doing the work; but, if the board shall not deem the work to be of sufficient importance to justify an appropriation from the county treasury, the trustee may appropriate any part of the road fund to that end if he believes it expedient. Section 7778. Whenever, in the opinion of the board of commissioners, public convenience requires that a bridge be repaired or built, the board is required to direct that the work be done pursuant to plans, etc. If the board believes the work to exceed the ability of the road district by the application of its ordinary road work and tax, the commissioners may use any appropriation from the county treasury to that end. Section 7687.
“The board of commissioners of each county shall cause all bridges therein to be kept in repair.” Section 7691.
There is no statute in this state rendering a township trustee or a road supervisor personally liable for neglecting or failing to repair highways or bridges.
[4] Public highways are established and opened, and bridges as a part thereof are built, pursuant to legislative authority. In the absence of statutory provision to the contrary, the ownership of such public ways is in the state at large rather than in some local subdivision. Karr v. Board, 170 Ind. 571, 575, 85 N. E. 1;Cummins v. Pence, 174 Ind. 115, 119, 91 N. E. 529. Since public highways and bridges as a part thereof are owned by the state, it would seem apparent that fundamentally the duty to keep them in repair rests on the state. The state, however, as appears from the foregoing digest of the statutes, has delegated that duty to certain political or governmental subdivisions, as counties, townships, etc. These subdivisions, however, discharge such duties through certain agencies, as boards of county commissioners, township trustees, road supervisors, and other officials. The state, through its legislative department, provides for selecting these agencies, prescribes their respective duties, and fixes penalties for failure to perform such duties. As the duty to repair public ways rests fundamentally upon the state, it appears that these agencies are in fact agencies of the state created by it for the purpose among others of performing such duty, and through which the state does perform it. Such agencies in repairing public highways and bridges are therefore doing the state's work. Thus, there are certain statutes by virtue of which local officials may appropriate private property for the purpose of road and bridge repair, as sections 7775 and 7777, Burns 1908. Only sovereign power may take private property for a public use. The exercise of the power granted by such statutes is justified on the theory that the taking is by the state for purposes of the state, through agencies created by it. Dronberger v. Reed, 11 Ind. 420;Jeffersonville, etc., Co. v. Daugherty, 40 Ind. 33.
While the duty to repair bridges is in a sense absolute, yet in the very nature of the case there is room for the exercise of official discretion. As to whether a given bridge should be established or repaired, and the state of repair in which it should be kept, and the order in which repairs should be made upon the various bridges within a particular jurisdiction, must of necessity depend on the importance of the bridge when measured by the frequency and nature of the use to which it is subjected. Moreover, from a consideration of the statutes cited herein, it appears that in so far as concerns road supervisors, township trustees, and boards of commissioners, the delegated duty to repair bridges is in a sense distributed among them with no duty resting upon either class of officials sufficiently comprehensive to include all cases of proposed repair. Thus, a road supervisor is subject to the control and direction of the trustee, and the duty delegated to each of those officers is limited by the existence of available means. The fact that in a given case, or that respecting a particular work of repair, such limitation becomes effective, invokes the performance of the duty delegated to boards of county commissioners by the use of county funds in repairing bridges. As said by the Supreme Court in Board v. Allman, 142 Ind. 573, 585, 42 N. E. 206, 209 (39 L. R. A. 58):
“The board of commissioners can only cause bridges to be repaired by an appropriation of county funds to pay the expense, when the road district is not able, by its road work and tax, to make the same, and the commissioners deem the bridge of sufficient importance to appropriate the county funds for that purpose, and in such case the expense must be borne by the road district, so far as it is able, and the residue by the county.”
It thus appears that road supervisors...
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Southern Indiana Gas and Elec. Co. v. Department of Highways, State of Ind.
...Ind. 404. Thus, in the absence of a statutory provision to the contrary, ownership of public ways lies in the State. Lamphier v. State (1915), 59 Ind.App. 661, 109 N.E. 938. Likewise, control of the public highways and streets rests with the state. Board of Commissioners of Hendricks County......
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...cites many authorities.” To the same effect, see Steuben Tp. v. L. S. & M. S. Ry. Co., 58 Ind. App. 529, 108 N.E. 545; Lamphier v. Karch, 59 Ind. App. 661, 109 N.E. 938. See, also, Elliott on Roads and Streets (4th Ed.) § 36; 9 CJ 464; State ex rel. Foster v. Ritch, That roads and bridges a......