Opinion
No. 39353.
July 2, 1945.
MANDAMUS: Highways: Counties: Order to Replace Culverts Improper: Discretion of Township Board. A writ of mandamus should not have been issued directing the township board to replace certain culverts which had been removed from a county road and placed in another county road. The restoration of the culverts would not have placed the road in usuable condition and the township board acted within its discretion when it authorized the road overseer to remove the culverts.
Appeal from Harrison Circuit Court. — Hon. V.C. Rose, Judge.
REVERSED AND REMANDED ( with directions).
E.L. Redman and C.B. DuBois for appellants.
(1) Equity acts only in personam. The judgment against Clay Township is a nullity as a matter of law. None of the Township board at the time of the institution of this action or now are parties to this action and in this case the court erred in rendering judgment against the individual defendants herein long after their term of office had expired and they were out of office, and in overruling defendants' objection made at the beginning of the trial to the introduction of any evidence for the reason that plaintiff's petition fails to state facts sufficient to constitute any cause of action or for the relief herein sought. 19 Am. Jur., p. 52, sec. 23, and p. 169, sec. 197; Pike v. Megoun, 44 Mo. 491; State ex rel. Funk v. Turner, 17 S.W.2d 986. (2) Plaintiff has not alleged or proven any special injury or damage to himself. Plaintiff did not suffer or sustain any special damage or injury not common to the public generally and plaintiff cannot maintain this action as an individual. Weller v. Mo. Lbr. Mining Co., 176 Mo. App. 243, 161 S.W. 853; Oetting v. Pollock, 189 Mo. App. 263, 175 S.W. 222; Patton v. Forgey, 171 Mo. App. 1, 153 S.W. 575. (3) Mandatory injunction does not lie in this case. The statutes provide a complete and adequate remedy in cases where public roads are obstructed and plaintiff has a complete and adequate remedy at law. Sec. 8581, R.S. 1939; Wainscott v. Strode, 237 S.W. 196; Sec. 1683, R.S. 1939. (4) Mandatory injunctions are not regarded with judicial favors and are used only in cases of great necessity and courts are reluctant to interpose a mandatory writ. 28 Am. Jur., sec. 20, p. 213, and sec. 191, p. 212; Lyle v. Chicago, 93 A.L.R. 1492. (5) The road in question was abandoned and vacated by non-user of the public for more than ten years continuously prior to the removal of the tubes from the road in question. Sec. 8485, R.S. 1939; Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590. (6) Courts will not interfere by injunction with discretionary functions of a township. A court of equity will not attempt by injunction to substitute its own discretion for that of a township officer in matters belonging to the proper jurisdiction of the latter. Defendant township and its township board were the custodian and had the supervision and control of the road in question, its tubes, culverts and equipments for the use and benefit of the public and the township and its board has the discretionary authority with respect to the use of said road and its equipment, its upkeep, replacement and management and is authorized and empowered to use said tubes and road equipment in its discretion for the greatest public good and convenience. Secs. 8520, 8595, 8813, 8814, 8819, 8824, 13933, 13976, R.S. 1939. (7) Courts of equity do not interfere by injunction with the acts of township and its officers pertaining to matters properly under their jurisdiction for the purpose of controlling the acts of said public officers nor will they review and correct errors in the proceedings of such officers. Hughes v. State Board of Health, 345 Mo. 995, 137 S.W.2d 523; Selecman v. Matthews, 321 Mo. 1047, 15 S.W.2d 788, 63 A.L.R. 512; State ex rel. Snyder v. Bourke, 338 Mo. 86, 89 S.W.2d 31. (8) Acts of officers involving the exercise of discretion cannot be controlled by injunction. Kearney v. Laird, 164 Mo. App. 406, 144 S.W. 904; Schmidt v. Berghaus, 205 Mo. App. 409, 223 S.W. 939; State ex rel. Allen v. Dawson, 284 Mo. 247, 224 S.W. 824; 28 Am. Jur., sec. 162, p. 352. (9) In matters of injunction a court of equity is bound to stay its hand in the public interest where the private right invaded is merely a technical or unsubstantial one where the issuance of the writ occasions great public inconvenience, expense and prejudice. 28 Am. Jur., p. 254, sec. 57, p. 230, sec. 35; 32 C.J., sec. 384, p. 243. (10) Both the right and duty of an officer or branch of the government to act involves the exercise of discretion. The officers conduct with respect to such duties or discretion cannot be controlled by injunction. Interference in such a case would be to interfere with the ordinary functions of government. Louisiana v. McAdoo, 234 U.S. 627, 58 L.Ed. 1506; 32 C.J., pp. 243, 250, 253. (11) Where plaintiff's objective and motive in seeking mandatory relief, is to acquire a new road over a location of his own choosing and failing in this chastises the defendants and the public by forcing them to do an expensive, vain and useless thing, he has not come into court with clean hands and has not done equity and is not entitled to mandatory relief. 19 Am. Jur., p. 332, sec. 479; Bates v. Dana, 345 Mo. 311, 133 S.W.2d 326; Greene v. Spitzer, 343 Mo. 751, 123 S.W.2d 57; Frederich v. Union Elec. L. P. Co., 336 Mo. 1038, 82 S.W.2d 79. (12) Plaintiff cannot resort to a court of equity for injunctive relief even though illegal acts are alleged and proven unless irreparable injury be shown. 28 Am. Jur., sec. 47, p. 242; Sylvester Coal Co. v. St. Louis, 130 Mo. 323; United Fuel Gas Co. v. Rd. Comm., 278 U.S. 300, 73 L.Ed. 390, 49 S.Ct. 150; Cruickshank v. Bidwell, 176 U.S. 73, 44 L.Ed. 377, 20 S.Ct. 280; Prendergast v. Blomberg, 141 S.W.2d 156. (13) Courts of equity will not compel by mandatory injunction political subdivision and its officers to do a useless thing. The remedy sought is of no value to the plaintiff and the public. It is impracticable and it is a physical impossibility for defendants to perform the mandatory order. Smith v. Sedalia, 244 Mo. 107, 149 S.W. 597; Place v. Union Township, 66 S.W.2d 584; State ex rel. Hog Haven Farms, Inc., v. Pearcy, 328 Mo. 560, 41 S.W.2d 403; Johnson v. Railroad, 227 Mo. l.c. 450, 127 S.W. 63. (14) A judgment in a suit in equity is reviewable on the merits and is heard by the Supreme Court de novo and while some deference is given to the finding of the trial judge, the Supreme Court will, if it finds itself at variance with the judgment of the trial court, order a new decree in accordance with the Supreme Court's finding. Edmondson v. Waterston, 342 Mo. 1082, 119 S.W.2d 318; Knickmeyer v. Fleer, 185 S.W.2d 57; Place v. Union Township, 66 S.W.2d 584.
C.C. Ross for respondent.
(1) Non-user of road, even if continued for the period of ten years, would not authorize an obstruction of the road. State v. Culiver, 65 Mo. 607. (2) The plaintiff and the public has a vested interest in a legally established highway and no one has a right to obstruct it. State v. Faith, 180 Mo. App. 166 S.W. 649. (3) There are only two ways to vacate a public road so as to authorize its obstruction. Secs. 8482, 8485, R.S. 1939; State v. Culiver, 65 Mo. 607; State v. Walters, 149 Mo. 657. (4) Where road not vacated, according to law, injunction will lie to restrain obstruction thereof. Rosendal v. Buecker, 27 S.W.2d 471. (5) To deprive one of a remedy by mandamus on the theory of adequate legal remedy, the legal remedy must be equally convenient and effective. State ex rel. v. Sale, 153 Mo. App. 273, 133 S.W. 119. (6) Mandamus is a legal and not an equitable remedy. State ex rel. v. Pythian Sisters, 227 Mo. App. 557, 54 S.W.2d 468. (7) Mandamus is an appropriate and proper remedy to compel a restitution of a highway to its former state and can be done by the plaintiff in his individual capacity. State ex rel. Morris v. Hannibal St. J. Railroad Co., 86 Mo. 13; State ex rel. Tate v. Sevier, 334 Mo. 771, 68 S.W.2d 50; Walther v. Cape Girardeau, 166 Mo. App. 467; Bruce v. County, 26 Mo. 262. (8) Injunction will lie against a public corporation to prevent the doing of an unlawful act. Glasgow v. St. Louis, 87 Mo. 678; Lumber Co. v. Ry., 129 Mo. 455, 31 S.W. 706; Lockwood v. Ry., 122 Mo. 86, 26 S.W. 698. (9) Obstruction of a highway may be both a public and a private nuisance and a private citizen may have injunctive relief. Schopp v. St. Louis, 117 Mo. 131. 22 S.W. 898; Cummings v. St. Louis, 90 Mo. 259; Road District v. Drainage District, 199 S.W. 716; State ex rel. v. Feitz, 174 Mo. App. 456, 160 S.W. 585.
Plaintiff instituted a mandamus proceeding in the Circuit Court of Harrison County, Missouri, against Clay township and certain individuals who had served on the township board and two defendants who had been road overseers, to compel them to replace five culverts in a public road which had been removed by the road overseers at the direction of the township board. The trial court entered a decree against the township and the defendants who had served on the board to replace four of the culverts. No decree was entered against the road overseers. The township and the defendants against whom the decree was entered appealed.
The road involved the northerly portion of a north and south road running through sec. 32 and fractional sec. 29, township 67, in Clay township, Harrison county, [661] Missouri. The record shows that there was a public road running east and west along the northerly line of sec. 29, which is likewise the state boundary line between Iowa and Missouri. It was also shown that there was a road running in an easterly and westerly direction along the southerly line of sec. 32. The road here in question connected with the two east and west roads just mentioned. The two east and west roads were also connected by north and south roads. One was located about a mile and a half west of the road in question and the other about a mile or so east of the road in question. The road from which the culverts were removed ran due north from the southerly line of sec. 32, beginning at a point about the center of the southwest quarter of sec. 32, thence north to a point a short distance north of the center line of sec. 32, thence due east about one-fourth mile, thence north along about the center of sec. 32 and through fractional sec. 29 to the Iowa state line where it connected with the east and west road above mentioned. It is the northerly half of this road that is in controversy in this case. It begins at the point where the road turns east near the center of the section. The evidence in the record introduced by plaintiff disclosed the following state of facts concerning the culverts in controversy. Plaintiff's home was located on the western half of sec. 32, near the center line thereof, west of the roadway above described and a short distance south of the point where the roadway turned eastwardly. The southerly portion of this road, that is, from plaintiff's home south to the section line where it connected with the east and west road, was not disturbed. If plaintiff, therefore, desired to travel to any point north of his home he went south and then east or west to the roads running north which were above described. Plaintiff's evidence as to the condition of the portion of the road where the culverts were taken out was substantially as follows. East of plaintiff's home was located what was referred to in the evidence as Indian creek. This creek crossed the roadway and it was necessary for north bound travelers to ford it since there never had been a bridge or culvert constructed over the creek. The evidence showed that the embankments, at the time of the trial, were in such condition that it was difficult, if not impossible, for cars or teams and wagons to use the ford. Plaintiff testified that the ford could be repaired with little difficulty by the use of a team and scraper. The evidence showed that the five culverts, the subject of this lawsuit, were located east and north of Indian creek. These culverts consisted of metal pipes, referred to as tubes, about eighteen feet in length, a number of them twelve inches and others eighteen inches in diameter. In August, 1940, two of these were removed by the road overseer on order of the township board and were placed in some other roadway within the district. Later in 1942, the other three culverts were removed in the same manner. The order of the board to the road overseer reads as follows:
"Clay Township Board hereby authorizes you to remove the tubes from the old abandoned road running north from the 40 acre farm belonging to Merl Barth, and locate them in the Andover to Akron road."
Plaintiff offered evidence as to the use of this road by the public. The evidence, however, was very indefinite and unsatisfactory. Only one witness gave a definite answer as to the number of travelers per day. This witness, a son of plaintiff, testified as follows:
"Q. This road that goes east a quarter and on up to the Iowa line, how often would you say — your best estimate — how often people used that road until these culverts were taken out? A. A man would have to average that maybe when the road was good for travel I expect at least some one through it every day.
"Q. You mean some vehicle of some kind? A. Yes, some vehicle."
There were no homes along this portion of the roadway where the culverts were taken out. The evidence showed that prior to the time the road overseer removed any tubes one of the culverts or tubes had been washed out. The trial court, by its decree, did not order the township authorities to replace this culvert. Plaintiff also introduced evidence that the traveling public now uses a private roadway over his field and a field of a neighbor in going north instead of the roadway where the culverts had been taken out. Witnesses called by plaintiff also testified that this private roadway had been used for many years prior to the time the culverts were removed. The evidence justifies the assertion that the private roadway was sparingly used.
The question for decision is whether a court in the above circumstances should issue a writ of mandamus, at plaintiff's [662] request, compelling the township authorities to replace the four culverts. We think not. Suppose the township authorities complied with the decree rendered, would that restore the roadway so as to render it usable? The answer must be in the negative. The decree ordered the authorities to restore four of the culverts. The one that had been washed out was not included. The evidence showed that the ditch at this point was so deep that vehicles could not pass over it. Again, there is the obstacle at Indian creek which rendered the road impracticable if not impassable. The general rule is that a writ of mandamus will not issue where it would be useless. 38 C.J. 692, sec. 262. A writ should not be issued where it will not result in any benefit to the applicant, 38 C.J. 551, sec. 23. In State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410, 60 S.W. 91, l.c. 105, this court en banc said:
". . . a court . . . will not award a discretionary writ as now here prayed for the mere purpose of determining an empty and barren technical right in behalf of a petitioner, it will `let well enough alone.'"
Suppose the township authorities complied with the decree and returned the tubes to the road in question, what would become of the roadway where the tubes are now being used for culverts? Would another taxpayer be entitled to have that roadway restored by again moving the tubes? We think not. The township board, in counties under township organization, is, under Art. 17, chap. 46, Mo. R.S.A., R.S. Mo., 1939, clothed with authority to maintain and supervise the roads located in the township. When the township board of Clay township ordered the road overseer to remove the culverts and use the tubes in the construction of culverts on some other road in the district the township board's action was not purely ministerial but to a large degree discretionary. The judgment of a board so exercised cannot be controlled or reviewed by courts in a mandamus or injunction proceeding. 32 C.J. 242, sec. 384; 38 C.J. 689, sec. 258; State ex rel. State Highway Commission v. Sevier, 339 Mo. 479, 97 S.W.2d 427. One of the defendants, William Jones, a road overseer, was called as a witness by plaintiff. He testified that he removed two of the tubes in August, 1940; that he saw no tracks or other evidence that the road had been used and in his opinion the road was impassable; that had he thought the road could be used he would not have taken the tubes. He also testified that the tubes were needed on another road and that the district was short of money.
We have examined the cases cited by respondent and will refer to a few. In State ex rel. Morris v. Hannibal St. J.R. Co., 86 Mo. 13, the railroad company was compelled to perform its duty under the law of restoring to good condition a public highway it had disturbed. This was purely a ministerial duty imposed by law upon the railroad. The case is not in point. In Walther v. Cape Girardean, 166 Mo. App. 467, 149 S.W. 36, a writ of mandamus was issued to compel the city to restore a lot to its original condition where the city had, without legal authority, cut a ditch through a private lot. It is evident that that case is not in point. Other questions briefed by respondent, for example, that the township board had no authority to declare the road vacated because of abandonment, are not in the case. The township board made no attempt to vacate the road. We need not review the other questions briefed because, as we have concluded, plaintiff under his own evidence was not entitled to the writ prayed for.
The judgment of the trial court is reversed and the cause remanded with directions to dismiss plaintiff's petition. It is so ordered. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.