Comm'rs of Coppey County v. Venard

10 Kan. 95 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

The main question in this case, and the only one which we think it is necessary to consider, is, whether a county, when the commissioners thereof vacate a county road, is liable in damages to any person who may sustain some loss in consequence thereof. We think a county is not so liable. There is no statute that makes it liable, and we know of no principle of the common law that would create such liability. The county through its officers has an undoubted legal right to vacate county roads. (Ch. 89, Gen. Stat., 897, et seq.) And neither the county nor its officers commit any wrong by so doing; nor do they take any person’s property; and therefore, if any consequential loss .results to any individual it must be damnum absque injuria. Nor can it make any difference that the party claiming damages has some interest in the road different from that of the public in general. It requires more than a peculiar interest in a thing to entitle a party to maintain an action. It requires that the party against whom the action is prosecuted should have committed, or is about to commit some wrong. This, neither the county nor its officers have done. ■ Of course it is not claimed in this action that any of the claimant’s private property has been taken. The vacation of a road does not take any person’s private property. It leaves the property of individuals just as though no road had ever been established. If a party owns the land over which the road runs, his rights and privileges are increased by the vacation of the road, instead of being diminished. If he does not own the land over which it runs then of course no property of his can be taken from him. Nor can it be claimed that the claimant in this case, or any other person, has any vested right or interest in the road as a road. Because it has once been to the interest of the public to open up and travel on a particular road is no reason that the public should forever afterward be compelled to travel on such. road, and pay the expenses of keeping it in repair, or else pay all damages that might result to individuals by reason of its vacation. The public are not bound to keep up unnecessary roads. A county road differs very much from a public park, or other public grounds in a city, which have been dedicated to the public by the original proprietors of the city. But even with respect to a public park, or public grounds in a city, it is not supposed that the public is bound to occupy and use them as intended by the original proprietors, or else pay damages to • individuals for not using them. It is supposed that the public may wholly abandon their use, where it is not for the interest of the public to use them, and without creating any liability on the part of the public. But turning our attention to this particular case we think the claimant might search in vain through all the books for a precedent to sustain his action. The judgment of the court below is reversed and cause remanded for further proceedings.

All the Justices concurring.