C. G. Anderson, Appellant, v. The Board of County Commissioners of the County of Cloud, Appellee

Kansas Supreme Court1913-06-07No. No. 18,265

90 Kan. 15

Summary · law.co

Holding. The judgment sustaining the demurrer was affirmed because the bridge had been removed and relocated between the initial appeal and the demurrer ruling, rendering the case moot as to injunctive relief and leaving only matters of costs, which are insufficient grounds for appeal.

Anderson sought to prevent county commissioners from relocating a bridge across the Republican River. The district court refused his request for a temporary injunction, and this court previously affirmed that decision. By the time the demurrer was sustained years later, the commissioners had already removed and relocated the bridge as planned. Because the bridge relocation had been completed after the earlier appeal, any injunctive relief became impossible to enforce, reducing the case to a dispute over abstract legal questions and costs alone.

The court noted that while it might occasionally require restoration of the original state of affairs, doing so here would be inequitable given that both the district court and the appellate court had recognized the commissioners' right to remove the bridge. Additionally, the plaintiff could not pursue damages against the county, as the law did not permit counties to be sued for damages stemming from actions by their governing board members.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an appeal should proceed when the subject matter has become moot due to intervening events
Whether a court should order restoration of prior conditions when the underlying right to take action was previously recognized
Whether a county may be held liable in damages for actions by its commissioners

Procedural posture

Following affirmance of the court's refusal to grant a temporary injunction in 1910, the district court sustained the defendant's demurrer to the petition in 1912, and the plaintiff appealed from the judgment against him for costs.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

Burch, J.:

The plaintiff brought suit to enjoin the board of county commissioners from removing a bridge from its location across the Republican river and reestablishing it at another place. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The plaintiff made application for a temporary injunction to prevent the removal of the bridge pending the litigation. After a hearing the court made elaborate findings of fact, covering all the grounds for relief, presented by the petition, and a temporary injunction was refused. On appeal to this court the judgment -of the district court was affirmed on November 9, 1910: (Anderson v. Cloud County, 83 Kan. 419, 111 Pac. 464.) There then remained on file in the district court the petition and the demurrer. In May, 1912, the district court sustained the demurrer and rendered judgment against the plaintiff for costs. The present appeal is taken from that judgment.

It is admitted that after the former appeal was determined the bridge was removed and relocated as the petition charged it would be if the court did not interfere. If the cause were remanded with direction to overrule the demurrer the district court would be unable to prevent the removal of the bridge by the process prayed for. An event occurring subsequent to the filing of the petition has rendered an injunctive order incapable of enforcement. The controversy has been reduced to one concerning an abstract question of law involving nothing of substance to the. parties except costs, and appeals are not heard for the determination of matters of costs only. The principle involved is sufficiently discussed in the following cases: Hurd v. Beck, 57 Kan. 911, 88 Kan. 11, 45 Pac. 92; The State, ex rel., v. Board of Health, 58 Kan. 817, post, p. 18, 51 Pac. 1101; The State, ex rel., v. Railway Co., 60 Kan. 858, post, p. 20, 56 Pac. 755; Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62; Teterick v. Parsons, 63 Kan. 879, post, p. 21, 64 Pac. 1028; Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104; The State, ex rel., v. Insurance Co., 88 Kan. 9, 127 Pac. 761.

Doubtless under some circumstances the court might require the state of affairs existing at the time the suit was commenced to be restored. In this instance, however, the right to remove the bridge was recognized by the district court and by this court after full consideration of all the facts and a mandatory order to return it to its former location would be harshly inequitable and unjust.

An argument that the removal of the bridge would in effect destroy the highway was fully considered on the former appeal. (83 Kan. 428.)

The petition contained an allegation that the removal of the bridge would result in damages to the plaintiff in excess of the sum of $5000. The pleading can not be used, however, as one for pecuniary damages against the defendant becáuse the law does not impose upon a county an obligation to respond in damages for wrongful acts committed by the members of its governing board. (Comm’rs of Coffey Co. v. Venard, 10 Kan. 95; Silver v. Clay County, 76 Kan. 228, 91 Pac. 55.)

The judgment of the district court is affirmed.