Moon v. Cort

43 Iowa 503 | Iowa | 1876

Adams, J.

The Code, Sec. 3378, provides that the plaintiff in an action of mandamus shall set forth, if he is a private individual, that he is personally interested in the action, and that he sustains and may sustain damages by the non-performance of the duty in question. It is claimed by appellant that he does show that he is interested in having the said road opened, and that he sustains damage and will continue to sustain damage by defendant’s failure to open it.

The only reason given, however, why he would be benefited by the opening of the road is, that his land would thereby be relieved of the public travel. But the public would not be compelled to travel the road simply by reason of its being opened. The most that can be said is that the public would be relieved of the necessity (if - it be one) of crossing plaintiff’s land. Whether it would travel the road, unless plaintiff ’s land should be fenced, isa question upon which plaintiff’s interest depends, and yet it is not only not answered by the record, but it is a question, which,, strictly speaking, is not susceptible of being answered. For aught we know or can know, the plaintiff would be under the same necessity of turning the travel by fencing, that he is now. We think, therefore, that the plaintiff fails to show that he has such interest in the opening of the road as a court can recognize.

Affirmed.