Looney v. Clifton

• Decision Date: 18 December 1901
• Citation: 157 Ind. 581,62 N.E. 271
• Parties: LOONEY, Tp. Trustee, v. CLIFTON, Road Dist. Sup'r.
• Court: Indiana Supreme Court

157 Ind. 581

62 N.E. 271

LOONEY, Tp. Trustee,

v.CLIFTON, Road Dist. Sup'r.

Supreme Court of Indiana.

Dec. 18, 1901.

Appeal from circuit court, Rush county; L. P. Newby, Special Judge.

Proceeding for mandamus by George W. Looney, Jr., township trustee, against Samuel F. Clifton, supervisor of a road district. From a judgment for defendant, the relator appeals. Reversed.

Innis & Morgan and McKee & Barrett, for appellant. Young & Young and Smith, Cambern & Smith, for appellee.

BAKER, J.

Relator was township trustee, and appellee was supervisor of a road district in relator's township, during the time covered by the matters involved in this action. On March 23, 1898, a small bridge or culvert, forming a part of a highway in appellee's district, was washed out. On the next day, and at other times preceding July 19, 1898, relator, as township trustee, ordered appellee, as road supervisor, to build a new bridge or culvert in a specified manner, and informed him that his drafts for the expense thereof would be honored. On July 19, 1898, relator instituted this proceeding, and obtained a peremptory writ, mandating appellee to build the culvert as it had been ordered by relator. On August 6, 1898, in vacation, relator filed an application for a temporary restraining order, showing that his directions to appellee were for the construction of a wooden bridge, that appellee refused to obey, that appellee was threatening and intending to build a stone bridge or culvert, and was about to take and use certain stone belonging to the township, and to employ workmen, over relator's objections. At the hearing on August 20, 1898, the court issued an order restraining appellee from proceeding to construct a stone bridge or culvert until the final hearing of the case, or the further order of the court. Various amendments to the pleading were made, and the application or complaint upon which the case was tried was not filed till May 11, 1899, to which the return or answer was filed on June 23, 1899. The court found for appellee, and rendered judgment in his favor for costs, and dissolving the restraining order. The assignments are that the court erred in overruling the demurrer to the answer and in refusing a new trial. The amended application, after stating the official positions of the parties and the impassable condition of the road, proceeded to charge “that on March 24, 1898, being the next day after the washout occurred, relator as trustee notified defendant as supervisor of the condition of the highway, and on that date, and at various other times prior to June 15, 1898, orally, and on June 15, 1898, and before commencing this action, in writing, requested and demanded defendant, as supervisor, to repair the highway where the culvert had been washed out, in the following manner: By procuring not less than four sills of substantial timber, not less than twelve inches thick, and long enough to extend across the washout and onto the firm bank on each side a sufficient distance for safety, not less than five feet, the sills to be placed across the washout at uniform distances of four feet apart, and the ends to be let into the surface of the grade to such a depth that when covered with three-inch bridge flooring the surface would be level with the grade of the highway on each side, the bridge to be floored with three-inch oak planks, sixteen feet long; that on each occasion relator also notified defendant that there was in relator's hands, as trustee, subject to defendant's order as...