113 Ind. 179 | Ind. | 1888
Appellees, as relators, applied for and obtained a peremptory mandate against the board of commissioners of Hamilton county to compel it to rebuild a bridge. They averred in their complaint that a designated public highway crosses a stream of water known as Stony Creek; that the stream is impassable on account of high water and the bad and dangerous condition of the crossing or ford; that twelve years prior to 1883 the board of commissioners of Hamilton county erected a bridge over the stream at the crossing of it by the highway, which bridge formed and was an essential part of the highway; that by a flood in the stream in the spring of 1883 the bridge was carried away and destroyed ; that by reason of the destruction of the bridge the highway has become impassable and rendered useless, and that the county board has neglected and refused to rebuild the bridge.
In its return to the alternative writ of mandate, the board denied that the bridge had been constructed by it, and also denied that the stream was or is impassable on account of
¥e have given an extended abstract of appellant’s return to the alternative writ of mandate, because of the importance of the question involved, and because of the construction which is put upon some of our former decisions by counsel for appellees, and which seems to have been put upon them by the court below. The demurrer, which was sustained to the return, admitted as true all of the facts stated therein which are well pleaded. Without again restating them in detail, or in substance, we think that, considering all the facts stated in the return, they show clearly that the bridge which was washed away was not, and that the proposed bridge would not be, essential to the highway or of public utility. The facts thus stated show that the bridge, if rebuilt, would not compensate the public for the cost and inconvenience necessary to and resulting from the rebuilding and maintenance of it. Is, then, the board of commissioners of the county unconditionally bound to rebuild all bridges which may be destroyed, although such bridges are not essential to the existence or use of the highways upon which they may be situated; although, when rebuilt, they will not be of public utility; although the building and maintenance of them will greatly embarrass the county, and delay and prevent the building of bridges at other points where bridges are much more needed ? May or must the courts, by writs of mandate, compel the county boards to rebuild such bridges under such circumstances ?
The board of commissioners owes a duty to the public'to keep the bridges forming a part of the public highways of the county in a safe condition, so as to prevent injury to persons travelling upon such highways. And where it is once ascertained that such bridges are in such a condition as to be dangerous to travellers, the board of commissioners has no discretion as to whether or not it will repair them. ' In such a case, the board can not say that, notwithstanding the bridge is in such a dangerous condition as will result in injury to travellers upon the highway, unless it is repaired, it will not make the repairs and thus prevent the injury. If such bridge is in such dangerous condition, and the board refuses to make the necessary repairs to prevent such injury, the duty to repair may be enforced by mandamus. State, ex rel., v. Demaree, 80 Ind. 519.
It was held in the case of State, ex rel., v. Board, etc., 80 Ind. 478 (48 Am. R. 821), upon the facts of that case, that mandamus will lie to compel county commissioners to rebuild a bridge where there is a substantial destruction of the original bridge. Upon the facts and reasoning in that case, the duty of the board of commissioners to the public was not so much to prevent injury to travellers upon the highway as to keep the highway in a condition to be used by the travelling public.
It was not held, nor intended to be held, that in every conceivable case the board of commissioners will be compelled by mandamus to rebuild a bridge, simply because there was a bridge over the stream at the particular place, which had been destroyed. Such is not the law anywhere. Suppose, for example, that a bridge has been built over a stream, and that in time the course of the stream becomes changed so as-to leave the bridge over dry ground ; that subsequent to such change the bridge, from any cause, is destroyed, and that the old channel maybe filled up at a small cost; clearly, in such a case, no court would issue a peremptory mandate to compel the commissioners to rebuild the bridge.
The case before us is not so strong as that supposed, but it is, in a sense, analogous to it. Here the bridge is in no-sense essential to the highway, or to the use of it. A public way will not be cut in two and “rendered useless for all purposes ” by a failure to rebuild the bridge. The bridge,, if rebuilt, will not even be of public utility, in the proper sense of that term. A proper management of the affairs of the county requires that public funds, which must ultimately be raised by taxation upon the citizens, shall not be expended in the rebuilding of the bridge. Surely, the board of com
When the facts are such as the demurrer to the return in this case admits them to be, we know of no reason why the board of commissioners might not, in the exercise of its discretion, discontinue and remove the bridge, and thus save the expense of maintaining it. See Board, etc., v. Legg, 93 Ind. 523, 529 (47 Am. R. 390.)
The right of the courts to compel the repair or rebuilding of a bridge by mandate, has been placed upon the ground that the bridge was either essential to the use of the highway or would be of public utility.
In Borough of Uniontown v. Commonwealth, etc., 34 Pa. St. 293, the return was held bad because it did not deny that the repair of the street was needed. Lowrie, C. J., said: “ The return does not deny that the repair is needed, and does not aver that there is any other functionary who has funds in his possession or power which he is bound to apply to that purpose. The case of The King v. Oxfordshire, 4 B. & C. 194, 10 Eng. C. L. R. 310, was decided on these principles, and we think this (mandamus) is a proper form of remedy.. Possibly, it would not be allowed, where the necessity of the repair is the matter in dispute ; but, where only the liability is in issue, we see no objection to it.” See, also, State v. Town of Campton, 2 N. H. 513 ; Commonwealth v. Justices of Kanawha County, 2 Va. Cases, 499; Rex v. Inhabitants, etc., 5 Burr. R. 2594.
In the case before us, as we have seen, the return to the alternative writ, in full and ample terms, denies that the bridge is necessary, and shows that public funds ought not to be expended in the rebuilding and maintenance of it. Such being the case, thb demurrer to the rétuim ought to have been overruled.
For the error of the court in sustaining the demurrer to the return to the alternative writ, the judgment is reversed,