Cherry v. Matthews

Opinion by Mr. Chiee Justice Lord.

The contention for the defendant is that the court below erred in overruling his demurrer for the reason that *486 the facts alleged disclose that he was acting as road supervisor and his threatened acts would only be the exercise of a right expressly conferred by statute. By section 4092, Hill’s Code, the duty is imposed upon the supervisor of roads to keep in repair all public roads in his district, and to enable him to do so he is authorized “to enter upon any lands adjoining or near the public road and gather, dig, and carry away auy stone, gravel, or sand * * * necessary for the making and repairing any public road.” This provision entrusts the jurisdiction of such matter to the judgment of the supervisor; he is to decide the mode of doing such work, when a county road needs repairing, and the kind of material to be used for that purpose. As this class of cases falls within the exception contained in section 18, article I., of the constitution, the prepayment of damages for the taking is not-required. “ It is not necessary,” Kelly, C. J., said, “ for the supervisor to wait until he can procure the consent of the owner or the judgment of a court assessing the damages to be paid for appropriating the materials necessary for the public use. Every owner of land holds it subject to be taken for the public use whenever it is necessarily required for such purpose, and to be appropriated in such a manner as the constitution and law provide”: Kendall v. Post, 8 Or. 144 .

The facts show that the alleged threatened acts are just such as the law sanctions when a supervisor is engaged in repairing county roads. In such case he may enter upon lands in the vicinity, and dig and carry away gravel, whether damages result or not. If he cause damage which entitles the party injured to compensation, such party may apply to the county court to assess and determine the amount thereof pursuant to section 4092. A supervisor acting in good faith and within the scope of his authority ought not to be controlled by injunction. *487 The highways must be kept in repair to accommodate the traveling public, and this duty the statute imposes upon the supervisor. There is no allegation that the defendant as supervisor was acting or threatening to act with partiality or malice, or that he intends in the discharge of his official duties to oppress or wantonly annoy the plaintiff, and in such case Kelly, C. J., said “the court ought not to interfere and restrain him from discharging those duties which the law has imposed upon him”: Kendall v. Post, 8 Or. 144 . It seems to us that plaintiff has shown no equity entitling him to relief. It results that the decree must be reversed, and the bill dismissed. Reversed.