Tp. v. Ruark

• Decision Date: 07 April 1888
• Citation: Tp. v. Ruark, 18 P. 61, 39 Kan. 109 (Kan. 1888)
• Parties: MONTANA TOWNSHIP, in Labette County, v. WILLIAM J. RUARK
• Court: Kansas Supreme Court

18 P. 61

39 Kan. 109

MONTANA TOWNSHIP, in Labette County, v. WILLIAM J. RUARK

Supreme Court of Kansas

April 7, 1888

Error from Labette District Court.

The opinion contains a sufficient statement of the facts. To the petition the defendant Ruark filed a demurrer, which the court sustained at the May term, 1886, and rendered judgment for the defendant. The plaintiff Township brings the case here.

Judgment affirmed.

Case & Glasse, for plaintiff in error.

Morrison & McCune, and F. H. Atchison, for defendant in error.

SIMPSON C. All The Justices concurring.

OPINION

SIMPSON, C.

The controlling question is, whether the township, under the circumstances of this case, can maintain such an action. The action is one to permanently restrain the defendant, who is the road overseer of his district, from preventing or interfering with the township trustee in removing an obstruction to a public highway, located on or through the land of the road overseer, or from further obstructing the same. Conceding all that is claimed by the plaintiff in error, by virtue § 3, ch. 153, Laws of 1871, still this action cannot be maintained, for the apparent object of the litigation is to determine the legality of the road; and for the settlement of that question there is a plain and adequate remedy at law. It is not asserted in the petition itself, or claimed by counsel, that it is an action for a violation of any of the provisions of the road law; but it does involve the legality of the road, and this must be established before any liability can be adjudged against the defendant in error. It would seem as if there was an adjudication recited in the petition, which determines that the action of defendant with respect to this road is not a misdemeanor; that, in effect he has not been guilty of a willful obstruction of a public highway. While it may be true that there has been no willful obstruction, it may also be true that...