Anderson v. Board of County Commissioners, No. 17,211

No. 17,211 | Kan. | Nov 5, 1910

The opinion of the court was delivered by

Johnston, C. J.:

The testimony and findings disclose that since the bridge in question was built the river has changed its course, and that it is the declared purpose of the commissioners to remove and rebuild the bridge over the river in its new channel, instead of leaving it over the channel through which the stream formerly flowed. Appellant contends that there is a lack of power in the commissioners to effect their purpose. It is first contended that the bridge was located and built under the authority of a special statute, and that therefore special legislative authority is a prerequisite to the rights of removal. Nothing in the abstract shows that the bridge was built under the authority of a special statute, but even if it was constructed under chapter 102 of the Laws of 1903, as appellant contends, it' would not follow that special authority was essential to the removal of the bridge. That act did not purport to fix the location of the bridge proposed to be built, but left the question of the building of the bridge as well as the selection of the location to the discretion of the commissioners. To meet an emergency the commissioners were authorized to provide means at once for building a bridge, but nothing in the statute indicated that the bridge when built should not be controlled and maintained the same as other county bridges which had been constructed under general authority. There is nothing in it suggesting that this particular bridge was to be excepted from the operation of the general laws or that it should be in a class by itself, subject to no control except that exercised directly by the legislature.

The next contention is that the city of Concordia contributed money to complete the building of the bridge and that it can not be removed without the consent of that municipality. In the first place the finding of the court was that the bridge “was wholly built by Cloud county.” Instead of there being a joint interest or ownership by two municipalities, as in the cited case of Greeley Township v. Comm’rs of Saline Co., 26 Kan. 510" court="Kan." date_filed="1881-07-15" href="https://app.midpage.ai/document/greeley-township-v-the-board-of-commissioners-7885505?utm_source=webapp" opinion_id="7885505">26 Kan. 510, this bridge was recognized by all as a county bridge, and the court found that it was not only built but that it was kept and maintained by the county. There is a finding that the city contributed money toward the repair of the highway and approach‘running from the bridge toward the city of Concordia, but it is expressly found that the county alone constructed the bridge. Even if the city had some interest in the bridge, it.is not here complaining. Nothing in the record indicates that appellant is authorized to complain for the city nor that he has been constituted as a guardian of its rights. An infringement of the rights of the city even, if it had occurred, would afford appellant no right to an injunction.

Another ground of injunction urged is that the contract for the construction of the bridge involves a greater sum than $4000, and that the appropriation •has not been sanctioned by a vote of the electors. A. statutory limitation which applies to Cloud county provides that the commissioners may make an appropriation for the rebuilding or repairing of a bridge to the extent of $4000, but where it is to cost a greater sum the commissioners can not make an appropriation to exceed $4000 until the question has been submitted to the qualified voters of the county and a majority vote is given in favor of the appropriation. (Laws 1909, ch. 63, § 1, Gen. Stat. 1909, § 655.) It is true that the total cost of the bridge to be built exceeds the sum of $4000, but it is not to cost the county more than that sum. The limitation is on the appropriation to be made for the particular bridge, and not upon the contributions which others may make toward the construction of it or on the value of the property which the county may acquire for an expenditure of less than $4000. The purpose of the legislature manifestly was to prohibit the expenditure of more than $4000 of county money upon a single bridge without the authority of the electors. While the act speaks of the cost of the bridge, a reading of the entire provision indicates clearly enough that it refers to the cost to the county and only undertakes to limit the appropriation which the county may expend upon the bridge. In the agreement with the construction company which undertook to build the bridge it was expressly stipulated that no more than $4000 of county money should be paid for the removal and rebuilding of the bridge, and that the remainder should be contributed by the township of Sibley and the Concordia Commercial Club. The contracting company agreed to be bound by this condition. So far as the record shows, the commissioners were acting in good faith in the steps taken to restrict the expenditure by the county on the bridge to $4000, and the agreement which they made seems to be sufficient to effectuate their purpose. There was nothing improper in their accepting from interested parties contributions toward the rebuilding of the bridge. The policy by which municipalities cooperate in public enterprises and of private parties sharing in the expense of such enterprises has been approved. (Plaster Co. v. Blue Rapids Township, 77 Kan. 580.) The material question here is, Did the contract and proposed action •of the commissioners involve an appropriation of county-money in excess of $4000? The findings of the trial court, which are not questioned, make it reasonably clear that it did not, and, that being so, an approving vote of the electors was not essential.

The objections to the notice and other steps preliminary to the awarding of the contract are without merit, as there is a finding by the court that all of these steps were regular and sufficient.

It is finally contended that the action of the commissioners renders the highway impassable and operates to vacate it, whereas the law makes it their duty to keep the highways in a safe and passable condition. The evidence and findings do not show a purpose to vacate the highway or to deprive appellant or others of its use. It is expressly found that the board did not undertake to vacate the highway and is proceeding to remove the bridge without attempting a vacation. It is to be noted that the bridge does not touch appellant’s land but is a short distance north of it. The highway leading south from the bridge does pass through his land, but the court finds that ingress and egress to and from his premises are afforded by other public roads which touch his land and that they furnish free access to and from his premises. However, as we have seen, the commissioners do not prdpose to close the highway by the removal of the bridge. No reason is seen why they may not substitute an inexpensive one which will serve the purpose. They are not compelled to maintain a $10,000 bridge over the old bed of the river when perhaps a small bridge or culvert costing no more'than $200 or $300 would complete the highway and make it passable. It is said that if the bridge had been washed'out by a flood the commissioners could have been compelled to build another bridge and to make the highway passable, if sufficient funds were on hand for that purpose; but, granting the contention, it does not follow that the commissioners are required to build the kind of a bridge that was washed out. It would not be their duty to provide an expensive bridge' if an inexpensive culvert would equally well accommodate the public. It may be assumed here that if a necessity for the continuance of that part of the highway exists the commissioners will, upon a removal of this bridge, do their duty in the premises and put the highway in a reasonable and suitable condition for travel.. At any rate, appellant can not tie the hands of the commissioners and prevent the placing of the bridge over-the river in its new channel because of his fear that the commissioners will not properly restore the highway by substituting an adequate culvert or bridge for the one removed.

Appellant did not show a right to the injunction, and hence the judgment of the district court is affirmed.