Township of Quincy v. Sheehan

The opinion of the court was delivered by Johnston, J.:

In a statute enacted in 1887, it was provided that —

“Any person who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of- such township shall have had like notice of such defect.” (Laws of 1887, ch. 237.)

An earlier provision of statute provides —

“That each road overseer, within his district, shall erect and keep up, at the expense of the township, posts or boards at the fords of every river or creek that in high water becomes impassable, which posts shall be set at, or near, low water-mark, on which shall be inscribed in legible letters, or plain figures, the depth of water at low water, together with a scale of feet showing the scale of feet above low water-mark to the height which said stream is known to have ever risen.” (Gen. Stat. of 1889, ¶ 5514.)

The plaintiff seeks to establish a liability against the township under the first provision, claiming that he sustained *623 damage by reason of a defective highway. The only negligence attributed to the township in his pleading is the failure to put up water-marks at the crossing of the stream where his loss occurred. Is the township liable for the damages claimed by reason of such failure? We think not. No such liability exists unless it is expressly imposed by statute. (Eikenberry v. Township of Bazaar, 22 Kas. 556 ; Comm’rs of Marion Co. v. Riggs, 24 id. 255.) Under the statute quoted, the township may be required to respond in damages where the injury results from a defective bridge, culvert, or highway; but a water-mark, which is required to be placed at or near a ford, cannot reasonably be said to be a part of a bridge, culvert, or highway; and the neglect of the overseer to place such water-mark at a ford or crossing was not, we think, within the contemplation of the legislature in enacting the law of 1887, imposing a liability upon counties and townships. The duty of placing water-marks at every ford is not imposed on the township trustee or the township board, but on the overseer of the district; and it will be observed that the defects for which the township may be held liable must be brought to the notice of the township trustee, and not to the road overseer. If such a neglect of the overseer rendered the township liable, it is difficult to see how far the liability might be extended. In another provision the duty is imposed on him to erect and keep up posts and guide-boards at the forks of every state and county road, containing directions to such cities as are situated on the road, and naming the distances thereto. (Gen. Stat. of 1889, ¶ 5487.) In still another statute the overseer is required to remove, or cause to be removed, between the 15th day of June and the 15th day of July, from the public highways, all cockle-burs, Rocky Mountain sand-burs, burdocks, sunflowers, Canada thistles, and such other obnoxious weeds as may be injurious to the best interests of the farming community. (Gen. Stat. of 1889, ¶ 5517.) The neglect of the overseer to perform these duties may create a liability against him for injuries resulting from his failure; but we do not think that it was intended to impute *624 such negligence to the township nor impose a liability upon the township for the failure of the road overseer to put up guide-boards and water-marks, nor to cut and remove sunflowers and cockle-burs in the proper season.

The facts stated in the pleading of the plaintiff below do not constitute a cause of action against the township, and the demurrer of the township should have been sustained.

The judgment of the district court will be reversed, and the cause remanded, with directions to sustain the demurrer of the township and give judgment in its favor.

All the Justices concurring.