Opinion
No. 35774
Decided March 4, 1959.
Township trustees — Township roads — Duty to drain, repair and maintain in passable condition — Mandatory, and enforceable by mandamus.
APPEAL from the Court of Appeals for Delaware County.
The relators, taxpayers and owners of land abutting on graveled and unimproved roads in West Orange Addition, Orange Township, Delaware County, brought this action in Mandamus in the Court of Appeals against the trustees of Orange Township, seeking a writ to require the respondents to repair and maintain certain roads in West Orange Addition. It is alleged in the petition that the roads are in such condition as to make travel by vehicle extremely hazardous; that some of the relators have been deprived of mail delivery to their property, some have been deprived of school-bus service, and some are threatened of being deprived of their sole means of vehicular ingress to and egress from their property; that respondents refuse and neglect to perform their statutory duty regarding the maintenance and repair of the roads; and that relators have no adequate remedy at law.
The respondents, by answer, allege that the roads in question, dedicated to public use, have not been improved by the subdivider or other owners to the extent required by the township for acceptance into its road system (no standards established in the record), and that in the exercise of their discretion respondents have refused to improve the roads, and until the roads are improved there is nothing to maintain.
The Court of Appeals allowed the writ requiring respondents to provide the roads with necessary drainage, to fill the holes and give sufficient crown to the roads so as to shed water, and to drag the roads and keep them in passable condition for mail, school-bus and other travel.
The cause, having originated in the Court of Appeals, is in this court on appeal as a matter of right.
Mr. George A. Compson, for appellees.
Mr. Geo. Cleveland Smythe, prosecuting attorney, and Mr. H. Lloyd Jones, for appellants.
It appears from the record that a plat of West Orange Addition subdivides an area of Orange Township into lots, streets and roadways; that the streets and roadways were dedicated to the public use by the original owners of the addition; that in 1950 such dedication was accepted by the commissioners of Delaware County; that the streets and roadways thereupon became part of the township road system under the statutes as they then existed; and that the original owners have done some grading and have caused crushed stone to be placed on the designated roads but they are presently in such a state of disrepair as to render them impassable at times.
Under the provisions of Sections 5571.02 and 5571.12, Revised Code, there is a mandatory duty on the township trustees to keep the roads in question in repair and to drag them. The judgment of the Court of Appeals is affirmed on authority of State, ex rel. Rogers, v. Taylor et al., Trustees, 152 Ohio St. 241, 89 N.E.2d 136.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.