State v. Putnam County Com'rs

• Decision Date: 23 November 1887
• Citation: 3 So. 164,23 Fla. 632
• Parties: STATE ex rel. GARRISON v. COUNTY COM'RS OF PUTNAM CO.
• Court: Florida Supreme Court

3 So. 164

23 Fla. 632

STATE ex rel. GARRISON v. COUNTY COM'RS OF PUTNAM CO.

Florida Supreme Court

November 23, 1887

Appeal from circuit court, Putnam county; THOMAS F. KING, Judge.

Proceedings on relation of F. H. Garrison, by mandamus, to compel the county commissioners of Putnam county, appellees herein, to repair a highway.

The alternative writ represents that on July 6, 1874, the county commissioners of Putnam county laid out a certain road or highway leading from Palatka south, to a point on the St John's river known as Brown's Landing, and such road has been ever since a public road, and known as the 'Brown's Landing Road;' and that the relator well knowing said road, and the convenience of access to the town of Palatka which it gave to lands lying along it, and induced largely by such easy means of communication with Palatka afforded by the road to the said land, purchased a tract of land and a farm and orange grove on said road, and improved the same at large expense, and has resided continuously thereon ever since; that shortly after he had made such purchase the Palatka & Indian River Railroad Company, a corporation of this state, built over and upon said road, between the land, farm, and orange grove of said petitioner and Palatka, the road-bed for its railway, and constructed a trestle over part of the same, and wholly blockaded and obstructed the travel over and upon said road and the relator has been unable ever since to go to and from said Palatka and his house by wagon or other vehicle over said road, but has been obliged, in going and coming to and from Palatka, to take a much more circuitous route, nearly three times as long, with much steeper grades; that relator and others, immediately upon the building of the road-bed of the railway, applied to the board of county commissioners, as then constituted, to have said Brown's Landing road repaired and put in order for public travel, and the railway company at that time promised the county commissioners and land-owners on the road to put the latter in as good condition as it found it, and open the same for public travel, but said railway company has neglected and refuses to do so; that subsequently petitioner and various persons living along said Brown's Landing road have, from time to time, asked the commissioners and railway company to repair the road, but they have neglected to do so; that on July 2 1886, petitioner appeared by counsel before the board of county commissioners, and filed a petition setting forth the facts substantially as above alleged, and demanded of them that they cause the road to be repaired, and made passable for public travel, and informed them that if they did not do so he would apply to this, the circuit court, for relief; and that said board, then fearing that petitioner would take the action he now takes, appointed a committee consisting of one of its members, and of the counsel for petitioner, and directed them to investigate the matter, and see what action could be taken with the railway company, and to report their investigations at the next meeting to be held by the board on the first Friday of August, 1886; that between said second day of July and said first Friday in August the town of Palatka Heights was incorporated, and within it was included a small portion of said Brown's Landing road, including that portion obstructed by said railway company, and which your petitioner had demanded of said county commissioners that they should repair; that on said first Friday in August a petition of 12 freeholders was presented to said county commissioners, asking them to relocate the Brown's Landing road where it was obstructed by said railway company, so that the same might be repaired more readily and at less expense to the county, but the said board then and there wholly refused to act upon the petition of relator and that of the freeholders, but referred both petitions and relator to the town of Palatka Heights for redress. The command of the writ is that the board of county commissioners proceed at once to cause said Brown's Landing road to be repaired and rendered fit for the use of the public to travel thereon with carriages and other vehicles or on foot, or to show cause (at the time and place stated in the writ) why they should not do so.

The county commissioners interposed a demurrer, the grounds of which are as follows: (1) The right to use and occupy any highway, and to change the course or direction thereof for the purpose of a railroad, is given by section 10, subd. 5, p. 278, McClel. Dig., to the railway corporation. (2) Whenever a railroad corporation has so used authority conferred by the above-mentioned statute, it becomes the duty of such corporation to take additional land to construct a new highway in lieu of that so used, and it is made the duty of the circuit court to declare such new highway, so located by it, open for the purpose of a public highway; thus ousting the board of county commissioners of jurisdiction in the premises, and leaving no duty incumbent on them. (3) That by section 17, p. 248, and section 19, p. 249, McClel. Dig., the duty of opening streets is conferred upon the council of municipal corporations; and that the obstruction complained of is within the territorial limits of the town of Palatka Heights, a municipal corporation under the laws of this state. (4) That in the case of State v. Railroad Co. this question has been already passed upon by this court, (Putnam county circuit court,) and an order made directing the removal of the obstruction by the sheriff of the county, and such order has been suspended by an appeal to the supreme court, and is now pending there.

The circuit judge sustained the demurrer, and dismissed the writ, and from the order of dismissal an appeal has been taken.

Syllabus by the Court

SYLLABUS

The establishment of municipality under the general law for the incorporation of cities and towns, on territory over which a part of an existing public road, established by the road authorities of the county, passes, does not of itself abolish the road as a public highway, or revoke or suspend the powers and duties of the county authorities as to it.

The failure of a railroad company to perform its duties as to crossing or otherwise using an established public road does not relieve the county commissioners or other public officials of a county from the performance of their own statutory duties in the premises.

Mandamus is the proper remedy to compel officials to perform such duties.

It is improper to set up, as a ground of demurrer, affirmative matter of fact not appearing in the pleading demurred to.

COUNSEL

S. C. Chandler, for appellant.

W. H. Wigg, for appellee.

OPINION

RANEY, J.

1. The fourth ground of the demurrer introduces matter of fact which does not appear upon the face of the alternative writ, and is therefore not within the province of a demurrer, and cannot be considered. Gould, Pl. c. 2, § 43; Id. c. 9, § 2.

2. The proposition of law urged under the third ground of the demurrer is that the municipal corporation of Palatka Heights has exclusive jurisdiction of that part of the Brown's Landing road within its territorial limits. If the county commissioners have been deprived of their jurisdiction over this part of the road by the establishment of this town, they are not subject to the remedy sought against them, and the writ was properly dismissed. Whether they have been so deprived depends upon the legislation bearing upon the subjects of public roads and municipal corporations. 2 Dill Mun. Corp. § 676. The intention of the legislature, as manifested by the statutes, must control.

The act of February 16, 1872, defining the duties of county commissioners, provides that they shall have power 'to build and keep in repair county buildings roads, and bridges,' and 'to alter, lay out, establish, maintain, vacate, or discontinue any road or highway in their respective counties, * * * to grant licenses for keeping ferries and toll-bridges for a term of years not exceeding five, and to prescribe the rate of ferriage and toll.' By the act of 1874, c. 2007, to establish and keep in good repair the public roads and highways in this state, 'all the roads and highways in the several counties of this state that have been laid out according to law, or may thereafter be laid out according to law, are declared to be public roads; and the county commissioners are given full power and authority, on the application of the citizens of their respective counties, to order the laying out of any road or roads throughout their county, when the same shall be deemed necessary for the convenience of the citizens or the traveling public, and to discontinue any public road or highway on the application of at least twelve householders in the vicinity of, and nearest to, said road, whose interest is to be affected by abolishing said road which may be found useless, burdensome, and inconvenient, and to alter and change the road already, or hereafter to be, laid out and established, as often as occasion may require. The original and latter act, as amended, regulates the laying out of roads, working them, and keeping them in repair, and provides the different road officers, and prescribes their duties, and what persons shall be liable to road duty. Provisions substantially similar to those of the act of 1874, have been in force in this state since 1845, if not longer. An amendment of 1881, c. 3440, provides that persons living in incorporated cities and towns shall not be called upon to perform road duty outside of the limits of said town or city. It also enacts that, in addition to the road labor provided for, it shall be the duty of the county commissioners of...