Givens v. McIlroy

79 Mo. App. 671, 1899 Mo. App. LEXIS 344

Opinion

BLAND, P. J.

The petition is as follows:

“John M. G-ivens and William M. Waters, Plaintiffs,

vs.

“John W. Mellroy, Eugene W. Stark, J. R. S. McCune and-Andrew J. Eorgey, Defendants.

“To the Honorable Reiiben E. Roy, Judge of the Tenth ■Judicial District of Missouri:

“The plaintiffs respectfully represent and show to the •court that they axe taxpaying citizens of Calumet township, Pike county, Missouri. That the first three named defendants are the judges of the county court of Pike county, Missouri. That the fourth and last named defendant Andrew J. Eorgey is a citizen of said township, county and state, and who has assumed the functions and duties hereinafter mentioned and set forth.

“Plaintiff further states that the gravel road leading from Clarksville to Sledd and from Turpin to Eolia, all of said points being in Pike county,. Missouri, was constructed, built, paid for and maintained by the Clarksville, Prairie-ville and Paynesville Gravel Road Company, a corporation duly incorporated under the laws of the state of Missouri of 1855 and 1861 and that afterwards, to wit, on the 24th day of March, 1870, the name of said corporation was changed to that of the Clarksville Road Company. That said road so built and maintained as aforesaid by said corporation has been used, operated, managed and controlled and tolls collected thereon up to the 10th day of November, 1898, by said corporation.

petition. “Plaintiffs further represent to the court that on the 10th day of November, 1898, the defendants unlawfully and without any right or legal authority for so doing usurped and assumed the control and management of said gravel road-leading from and to the points aforesaid in said county and have established tollgates and toll houses on said road and are now maintaining the same collecting toll without any right or legal authority for so doing. And that the said Andrew J. Eorgey, the last named defendant, claiming authority from the-county court of Pike county has assumed control of said road as road superintendent and is now under the directions of his codefendants unlawfully and illegally collecting tolls from all persons who travel upon said road.

Plaintiffs further represent to the court that they believed and charge the fact to be that the corporate existence of the corporation hereinbefore mentioned that built and. maintained said road has expired by virtue of the limitation upon the life of said corporation. Plaintiffs therefore say and charge the fact to be that said gravel road reverted to and belongs to the general public divested and disburdened of all tolls and charges for travel thereon.

“The plaintiffs, therefore, say that the first three named defendants as the judges of the county court of Pike county, Missouri, pretending and assuming to act for said county, appointed or attempted to appoint the said Andrew J. Eorgey as the agent of said county to establish and maintain tollgates of said road and to demand and collect toll from all persons traveling on said road. That said defendants in person or by and through their agents and servants and employees have unlawfully and without any right or authority therefor taken possession of said gravel roadbed and the tollgates and toll houses thereon and unlawfully have and are demanding and collecting toll from all persons passing over and traveling on said road, and especially from these plaintiffs in utter violation of’the laws of the state of Missouri and the rights of the public and of these plaintiffs. And plaintiffs further represent that by reason of the aforesaid unlawful acts of said defendants these plaintiffs and a large number of citizens of the township, county and state aforesaid, have sustained and are sustaining great damage and inconvenience, for which, they can not be compensated by an action at law. And for the injuries and inconveniences sustained they have no adequate remedy except by injunction. Wherefore plaintiffs pray the court to enjoin and restrain the said defendants, their agents and servants for collecting tolls on said gravel road and from' in any way interfering with the use of said road by plaintiffs and the public for such other orders and decrees as to the court may seem just, legal, righl; and proper.”

The answer denies the legal capacity of plaintiffs to sue, admits that Mcllroy, Stark and McOune are judges of the ■county court of Pike county, and admits that as such judges they made an order of the county court of Pike county establishing the road described in the petition as a toll road -and established and are maintaining tollgates in said road; that they fixed the rate of tolls to be paid and appointed Eorgey as superintendent of said road, with power to appoint tollgate keepers and to collect the tolls as fixed by the county ■court. The history of the construction and operation of the road as set forth in the answer and established by the evidence, briefly stated is, that in May, 1857, a number of the citizens of Pike county filed articles of association forming a joint stock company under the then existing road law of the state (G-. S. 1855, p. 393) for the purpose of constructing the road in controversy. Tlie association was incorporated by act of the legislature in 1860, and re-incorporated in 1870 (Sess. Acts 1870, p. 171), and became defunct March 14, 1890, by reason of the expiration of the time for which it was chartered. The county of Pike subscribed for $39,000 of the stock of the corporation, which it paid and for which it received certificates of stock. The road, with the exception of a short extension, was constructed during the life of the corporation and was thereafter maintained by it; tolls were collected and the income derived from this source netting $2,000 per annum was all used in paying a deficit of $1,300 on construction and inmaintaining the road in a first-class condition. No dividends were ever declared or paid to any of the stockholders. For some reason the officers failed to take notice of the demise of the corporation, and continued to keep up its organization, to collect tolls and apply them to maintenance of the road as during the life of the corporation and in 1891 the officers of the corporation, other citizens to be specially benefited, and the county of Pike, each contributed $1,072.50 in the construction of a two mile extension of the road, which was thereafter taken charge of by the corporation officers as a part of its road, and they continued to collect tolls and to expend the same in keeping the road in good repair until the year 1898, when for the first time the .acting officers of the corporation became informed of the fact that the corporation was dead. When, seeing they were ■without authority to further operate the road, they went before the county court of Pike county and presented their petition, setting forth the condition of affairs, alleged the fact that the ordinary tax for road proposed to be derived from the districts through which the road runs was wholly inadequate to keep the road in good repair, and ask the court to establish the road as a toll road. The county court heard the petition and made an appropriate order establishing the road as a toll road, and appointed Eorgey as superintendent, who proceeded to carry out the order of the court, by maintaining tollgates and enforcing the collection of the toll established by the court from the traveling public. It is admitted that the road as to its physical condition meets all the requirements of a toll road. The circuit court on a hearing granted the relief prayed for and perpetually enjoined the defendants 'from maintaining tollgates and collecting tolls on the road. From this decree the defendants duly appealed, and assign as error, first, that plaintiffs have no legal capacity to prosecute this action.

pleading and proof' The only allegation of injury or damage which will accrue to plaintiffs by reason of the maintenance of the toll gates in the road is found in the following paragraph of the petition, to wit: “And plaintiffs further represent that by reason of the aforesaid unlawful acts of said defendants these plaintiffs and a large number of citizens of the township, county and state aforesaid have sustained and are sustaining great damages and inconvenience, for which they can not be compensated by an action at law. And for the injuries and inconveniences sustained they have no’ adequate remedy except by injunction.” From this paragraph it affirmatively appears that plaintiffs have not ‘sustained, nor will they sustain any greater damage than have been and will be sustained by the traveling public generally, and that the inconvenience of which they complain is not peculiar to them nor in any wise greater than the inconvenience of the public generally using the road; in other words, no special damage or inconvenience is alleged. Tollgates in a highway are an obstruction to travel, and when unlawfully maintained are a public nuisance ( 1 Wood on Nuisance, p. 300; 1 Spelling’s Extraordinary Relief, sec. 373), and those engaged in erecting and maintaining them are guilty of a misdemeanor. But county courts in this state have exclusive jurisdiction over all the public roads in their respective counties. They may establish and vacate public roads, and special authority, by sections 7828 and 7915, Revised Statutes, is conferred on them to establish toll roads. The complaint is not that the road was established as a toll road without any authority, but that the county court exceeded its authority and established the road as a toll road on facts and evidences which did not warrant the order; in other words, that it erred in its judgment. The road is a public road, established as a toll road by competent authority; its maintenance as a toll road is a matter of public concern, and if there has been an abuse of ¡he power delegated to the county court by the legislature to so establish it, the correction or restraint of that abuse by legal proceedings is lodged in the public, and not in any private individual, unless he will suffer private injury thereby. In such circumstances it is well settled law that a private citizen can not maintain an action for the correcting of the public wrong, unless he specifically alleges and proves that the public wrong has done or is about to do him a private injury, in addition to and over and above the one suffered by him in common with the public. Bliss on Code Pleading, sec. 81; Cummings v. St. Louis, 90 Mo. loc. cit. 264; Martindale v. Railroad, 60 Mo. 509; Kinealy v. Railroad, 69 Mo. loc. cit. 663; Glaessner v. Brew. Ass’n, 100 Mo. 508; Glasgow v. City, 107 Mo. 198; Kitchell v. Manchester Road Electric Railway Co., decided at present term of this court, and not yet reported; Elliott on Roads & Strs. 296, 297; Spellings Extra. Relief, sec. 423. High in his excellent work on Injunctions, section 816, says: “When the erection of a tollgate in the highway will operate as a public nuisance, it may be restrained at the suit of an adjoining property owner who sustains special injury. * * * The obstruction of a highway by the erection of a tollgate, and demanding and receiving toll from persons crossing a bridge in the highway, although a public nuisance, will not be enjoined when plaintiffs show no special damage or injury to themselves distinct from that sustained, by the public.” In volume 10, Encyclopedia Pleading and Practice, page 897, it is said that “it is settled by numerous authorities, English and American, that a suit for an injunction to restrain public nuisances, purprestuxdes, obstructions of highways and other public wrongs, can not be maintained by a citizen on the ground that his interests and rights as a member of the state will be interfered with, where the injuries which he apprehends are of the same kind as those which will be sustained by the people at large, and that the rule has been rigidly adhered to in a great variety of cases.” To this text is a foot note citing numerous cases from nearly all the states and a number of cases decided by the United States supreme court. The further citation of authorities to show that plaintiffs have no legal capacity to prosecute the suit, seems to us unnecessary, and we reverse the judgment.

All concur.