208 N.W. 721 | Iowa | 1926
I. The action is by three resident taxpayers owning land abutting on, and in the vicinity of, a public road, to compel, by writ of mandamus, the defendants, the members of the board of supervisors of Harrison County, to construct a bridge at the point where the road is crossed by a drainage ditch.
The facts are not in dispute. The ditch was constructed, and no bridge has ever been erected where it intersects the highway. The ditch at the point in question is a hundred or more feet wide, and it is not disputed that, without a bridge, the road at that point is impassable. Less than a quarter of a mile west of the ditch the road crosses a main road running northwest and southeast, connects with another road leading north, and runs on farther west. Those living on or traveling the road east of the ditch can only reach this important junction of highways by traveling from one to three miles farther than would be necessary if the bridge were constructed. There is a schoolhouse near the crossroads, and pupils in the district and east of the ditch must travel this greater distance to school.
It is not seriously contended but that the plaintiffs would have been entitled to the relief asked, had their action been commenced within the statutory period of limitation. Section 1989-a19, Code Supplement of 1913 (Section 7539, Code of 1924), was construed in Ruffcorn v. Chatburn,
II. The defendants pleaded the statute of limitations, and the only question open to controversy is whether the action is barred.
The ditch was constructed in 1910, and this action was commenced in 1920. There is no dispute that frequent demands were made upon the board for the construction of the bridge, from 1912 to 1916. In 1915, the board adopted a resolution providing for the construction of the bridge. Again in 1919, *1165 one of the appellants made demand for the bridge, and in 1920, the board definitely refused to build it.
While there is some conflict of authority as to whether general statutes of limitation are applicable to the action of mandamus, the question is not an open one in this state. We have applied the paragraph of Section 3447, Code of 1897 (Section 11007, Code of 1924), providing that actions against a public officer growing out of a liability incurred by the doing of an act in an official capacity or by the omission of an official duty must be brought within three years after the cause of action accrues, to an action of mandamus to compel official action affecting a private right. Thus, it was held in Prescott v. Gonser,
The right here sought to be enforced is a public right, created by statute, — the right to have a bridge constructed where a public highway is crossed by a drainage ditch. The action is, it is true, by private individuals, but the right is, nevertheless, a public one. No question is raised as to the right of the plaintiffs to maintain the action. The plaintiffs allege a personal interest in the construction of the bridge, by reason of their peculiar location; but their use of it would only be such as the general public would have a right to make. Their peculiar interest, save, possibly, as the owners of land abutting on the highway, differs only in degree, not in character, from that of the general public.
Where an action is brought for the sole benefit of the state, although not brought in its name, the defense of the statute of limitations cannot be made. Wasteney v. Schott,
It is well settled in this state that the statute of limitations does not run against the right of the public in respect to a public highway. City of Pella v. Scholte,
An action instituted by the attorney-general in the name of the state, to compel obedience to the law of the state commanding county officers to keep their offices at the county seat, was held not barred by the statute of limitations, in State v. Stock, 38 Kan. 154 (16 P. 106).
In State ex rel. Arthurs v. Board of County Com.,
"This duty is absolute — one resulting from the office and specifically enjoined by law. To say that the courts are helpless to compel performance of such a duty, merely because the time within which the duty should have been performed has elapsed, is tantamount to holding that a public official, by delaying action until the time designated by law for action has expired, may defeat the will of the people as expressed by the legislature, and that there is not any redress for those who are injured by such nonaction."
See, also, McLean v. Llewelyn Iron Wks.,
It is held that proceedings in the nature of quo warranto concerning a public right are not barred by the statute of limitations. Catlett v. People ex rel. State's Atty.,
The failure to construct the bridge has, as said in Ruffcorn v.Chatburn, supra, had the effect, for all practical purposes of the use of the highway, of working its vacation at that point, by indirection, and contrary to the clear mandate of the law. There has been no attempt by proper legal proceedings to vacate the highway, or to establish a new one for the convenience of those entitled to use it. The duty of the board, under the statute, to build the bridge was to the public, and was a continuing one. The duty cannot be avoided and the public deprived of the right to enforce its performance by the failure to perform it for the period of the statutory limitations for the commencement of actions.
We are constrained to say that the judgment cannot be sustained, and it is — Reversed.
De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur.
