People ex rel. Corey v. Comm'rs of Highways of Dover

• Decision Date: 11 October 1895
• Citation: 158 Ill. 197,41 N.E. 1105
• Parties: PEOPLE ex rel. COREY v. COMMISSIONERS OF HIGHWAYS OF TOWN OF DOVER et al.
• Court: Illinois Supreme Court

158 Ill. 197

41 N.E. 1105

PEOPLE ex rel. COREY

v.COMMISSIONERS OF HIGHWAYS OF TOWN OF DOVER et al.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, Second district.

Petition for mandamus by the people of the state of Illinois on the relation of Hamilton Corey against the commissioners of highways of the town of Dover and the commissioners of highways of the town of Ohio. Defendants obtained judgment, which was affirmed by the appellate court. 53 Ill. App. 442. Petitioners appeal. Reversed.

Scott & Davis, for appellants.

Geo. S. Skinner, for appellees.

BAKER, J.

The relator, a resident of the town of Ohio, in Bureau county, and the owner of 640 acres of land lying in one body,-320 acres in said town and 320 acres in the town of Dover, a town lying directly south of the town of Ohio,-filed in the circuit court of said county his petition for a writ of mandamus to compel the commissioners of highwaysof said towns to hold a joint meeting, and take the proper and legal steps for entering into a joint contract for the erection of a bridge over a stream on an established town-line road between said towns. The commissioners of the town of Ohio filed an answer admitting all the material allegations of the petition. The commissioners of the town of Dover filed a demurrer to the petition. The circuit court sustained the demurrer, and dismissed the petition, and rendered judgment against the relator for costs. On an appeal to the appellate court the judgment was affirmed, and this further appeal was then taken.

Sections 21 and 22 of the road and bridge law are as follows:

‘Sec. 21. Bridges over streams which divide towns and counties, and bridges over streams on roads on county or town lines, shall be built and repaired at the expense of such towns or counties: provided, that for the building and maintaining of bridges over streams near county or town lines in which both are interested, the expense of building and maintaining any such bridges shall be borne by both counties or towns in such proportion as shall be just and equitable between said towns or counties, taking in consideration the taxable property of each, the location of the bridge, and the advantage of each, to be determined by the commissioners in making contract for the same as provided for in section 22 of this act.

‘Sec. 22. For the purpose of building or keeping in repair such bridge or bridges it shall be lawful for the commissioners of such adjoining towns, whether they be in the same or different counties, or county boards of such adjoining counties, to enter into joint contract, and such contract may be enforced in law or equity against such commissioners jointly, the same as if entered into by individuals, and such commissioners or county boards may be proceeded against jointly, by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges or for any damage growing out of such neglect.’

Rev. St. 1893, c. 121.

Section 23 of the act makes provision for a case where one of the towns refuses to enter into a joint contract; and section 24 gives a remedy where there is such a contract to one town against the other, in the event such other refuses to comply with its contract. The proceeding at bar, however, is under section 22, supra, where a remedy is given to any party interested in the bridge to enforce a joint contract against adjoining towns jointly for any neglect of duty in reference to such bridge. If the case were that the commissioners of highways of the town of Dover and the commissioners of highways of the town of Ohio had never jointly constructed or agreed to construct a bridge over the stream called ‘Master's Fork’ at the place where it is crossed by the public town-line road, then it would be governed by the case of Commissioners of Highways of Town of Dimmick v. Commissioners of Highways of Town of Waltham, 100 Ill. 631, where this court held that, in the absence of an agreement between the commissioners of highways of adjoining towns in regard to the erecting or repairing of a bridge on the town line, there was no liability on the part of the one to the other to contribute to the cost of building or repairing such bridge. But the case admitted by the demurrer to the petition for a writ of mandamus is this: That a public road was laid out prior to 1859 between said towns, running east and west, the same having been laid out partly by the county commissioners' court before the adoption of township organization and partly by the commissioners of highways of the towns of Ohio and Dover, acting jointly, after the adoption of township organization. That on January 5, 1859, the commissioners of highways of the towns of Dover and Ohio met for the purpose of perfecting said public highway, and divided said town-line road into districts, allotting to each town certain portions to be worked and kept in repair, thereby making the same a town-line road; and that said road is extensively traveled, and of great public utility. That a large stream of water, called ‘Master's Fork,’ flows southward, and crosses said town-line road near the southeast corner of section 2 in Dover township, and then flows south in Dover town. That said stream, where it crosses the said town-line road, is at times very deep, and quite wide, and often during the year the water is high and furious. That said stream is impassable for carriages and wagons at any time of the year within the lines of the highway. That at the time said highway was perfected and made a town-line road, in the year 1859, it was conceded at a joint meeting of the commissioners of highways of said towns that a bridge spanning said stream was necessary for the public travel in order to make use of said road, and that under the law each town should contribute one-half to the erection of said bridge. That some time after establishing said road, on January 5, 1859, the commissioners of highways of the towns of Ohio and Dover acting jointly erected a large wooden bridge across said stream where it crosses said town-line road. That said bridge spanned said stream, and was used from about the year 1860 until the year 1884 or 1885, when it became absolutely unsafe for public travel, finally falling, and being washed away by the stream. That for the last eight or nine years said highway where said bridge crossed said stream has been wholly impassable for carriages and wagons at all times of the year, the eastern bank of said stream being very high. That there has been no way for the last eight or nine years said road could be traveled except by turning out of the highway to the northward, and crossing the stream some distance north of the old site of the bridge, in the relator's field. That for the last eight or nine years relator has been compelled to allow public travel to pass through his fields, and has been compelled to keep up gates to accommodate said travel. That even then they are unable to haul heavy loads along said highway, because of said bridge being gone. It is further admitted by the demurrer that the towns of Dover and Ohio are about equal in value as to the taxable property; that the cost of the bridge would not exceed $1,000; that the town of Ohio has appropriated and raised by taxation sufficient money for road and bridge purposes to build its proportion of said bridge; and that the town of Dover is abundantly able to construct its proper proportion of said bridge, and now has sufficient money on hand, levied for road and bridge purposes, with which to do so.

The facts stated in the petition may not be very artificially pleaded, but they clearly show that in 1859, at a joint meeting of the highway commissioners of the two towns, a joint agreement or contract was made that the original bridge across Master's fork should be built, and that each town should pay one-half of the cost of the erection of such bridge, and that the two towns, acting jointly, constructed the bridge, about the year 1860; and also show that the public town-line road that passed over the bridge for some 25 years was extensively traveled, and of great public...