Crawford v. Miller.

The plaintiff files replies to the joint answer of the defendant, John I. Miller, and others, also to the answer of the county commissioners, but they are in the nature of denials to the affirmative allegations of the answer. The plaintiff files an amendment to his petition, but these additional pleadings do not raise any new issues, and this brief reference to the replies and amendment to the petition are sufficient to present the questions arising in the case.

The case was submitted to the common pleas court upon the pleadings, evidence and exhibits, resulting in a finding and judgment for the defendants, and the temporary restraining order theretofore granted was dissolved and the petition dismissed at the cost of plaintiff.

An appeal was taken by the plaintiff to the court of appeals of this county and the same is submitted to the court on the pleadings, evidence and exhibits at the November term of said court.

Thomas H. Wheeler and James Glenn, for plaintiff.

Timothy S. Hogan, Atty.-Gen. W. J. Wieland, Joseph L. McDowell and George D. Klein, Pros. Atty. for defendants:

That plaintiff has an adequate remedy at law. Hosher v. Fairfield Co. (Comrs.) 32 O. C. C. 415 (14 N. S. 198); Smith v. Wayne Co. (Comrs.) 50 Ohio St. 628 [35 N. E. Rep. 796; 40 Am. St. Rep. 699]; Wrightsel v. Fee, 76 Ohio St. 529 [81 N. E. Rep. 975; 13 L. R. A. (N. S.) 233]; Newton v. Taylor, 32 Ohio St. 399; 38 Cyc. 485, 590; Rice v. Coolidge 121 Mass. 393 [24 Am. Rep. 279]; Taylor Water Co. v. Dillard, 9 Tex. Civ. App. 667 [29 S. W Rep, 662]; Pickerill v. Louisville, 125 Ky. 213 [100 S. W. Rep. 873]; McGary v. Street Ry. 85 Ill. App. 610; St. Louis Bridge Co. v. Niller, 138 Ill. 465 [28 N. E. Rep. 1091]; Humphries v. Railway 84 S. C. 202 [65 S. E. Rep. 1051]; Richmond v. Mills Co. 102 Va. 165 [45 S. E. Rep. 877]; Brown v. Webster, 115 Iowa 511 [88 N. W. Rep. 1070]; Green v. State, 73 Cal. 29 [11 Pac. Rep. 602; 14 Pac. Rep. 610]; Simonson v. Richardson 15 Dec. 33 (2 N. S. 170).

Injunction does not lie. High, Injunction (4 ed.) Sec. 22 Spangler v. Cleveland, 43 Ohio St. 526 [3 N. E. Rep. 365];

Coshocton County Appeals.

Cincinnati v. Bowman 12 Dec. Re. 125 (Han. 246); Potter v. Schenck, Fed. Cas. (1 Biss.) 515; Batsche v. Kisinger-Ison Co. 15 Dec. 30; Cincinnati, C. & W. Tpk. Co. v. Hamilton Co. (Comrs.) 7 Dec. 509 (5 N. P. 423); Attorney-General v. Perkins, 2 Dev. Eq. (17 N. C.) 58; Hall v. Rood, 40 Mich. 46 [29 Am. Rep. 528]; Bigelow v. Bridge Co. 14 Conn. 565 [36 Am. Dec. 502]; Ruge v. Oyster Co 25 Fla. 656 [6 So. Rep. 489]; Cincinnati & D. Ry. v. Transportation Co. 25 O. C. O. 117 (I N. S. 146); Crawford v. Rambo, 44 Ohio St. 279 [7 N. E. Rep. 429]; Cooper v. Hall 5, Ohio 320; McElroy v. Goble, 6 Ohio 187.

Defendants are required to anticipate ordinary and not extraordinary floods. Crawford v. Rambo, 44 Ohio St. 279 [7 N. E. Rep. 429]; Welty v. Vulgamore 24 O. C. C. 572 (1 N. S. 553); Farnham, Waters & Water Rights 361; Bryston Hydraulic Co. v. Boyer, 67 Ind. 236; Madison v. Boss, 3 Ind. 236 [54 Am. Dec. 481]; Eagan v. Railway, 81 Vt. 141 [69 Atl. Rep. 732; 16 L. R. A. (N. S.) 928; 130 Am. St. Rep. 1031]; Cooper v. Williams, 4 Ohio 253 [22 Am. Dec. 745]; Philadelphia, W. & B. Ry. v. Davis 68 Md. 281 [11 Atl. Rep. 822; 6 Am. St. Rep, 440].

VOORHEES, J.

This action is brought by the plaintiff against the county commissioners of Coshocton county and the representative of the state of Ohio, as superintendent of the department of public works of the state, and Ross Hamilton, as superintendent of the construction of the levee mentioned in the petition, to enjoin them from constructing said levee. The object of the suit is to enjoin said commissioners and said officers of the department of public works of the state from making the improvements mentioned and described in the petition.

To state the case more accurately, it is a suit against the state of Ohio and the county commissioners of Coshocton county, to enjoin them from improving and protecting the property of the state, and to enjoin the county commissioners from protecting some, or in protecting at least one, of the public

Crawford v. Miller.

highways of the county from danger and injury from flood waters in the Walhonding river.

At the very threshold of the investigation the first question that confronts us is, Can such a suit be maintained against the state or its officers? It will be conceded, no doubt, that the state can not be sued in an action of this kind. If the state does a wrong or commits an act in improving its property, such as its canals, the remedy is not by injunction. But under Sec. 455 of the act of the general assembly of Ohio, passed March 5, 1913, and approved by the governor March 19, 1913 (103 O. L. 125), wherein it is provided:

"That when private property is injured by a break, leakage, overflow of a canal, slack water, pool, reservoir or other public work, or by the insufficiency or by the filling up of a culvert thereof, or by the washing away of earth caused by a dam under the control of the superintendent of public works, the owner of such property shall apply in writing to the superintendent of public works for damages within one year from the occurrence of the injury, but no such application shall be received after such period."

Sections 457, 458 and 459 of said act point out the proceeding and remedy secured to the property owner, which shows the remedy is not by injunction and that the owner of property claimed to be damaged has a remedy under the statute stated which gives him a complete and adequate remedy at law. If the state can not be sued, what effect has it in a case where there are joint tort feasors, one of whom can not be sued? Does it change the rule of law that, where there is not an adequate remedy at law, resort can be had in a court of equity by way of injunction to prevent an act being done that is claimed to be an invasion of the rights of the party complaining?

In this case the county commissioners have joined the authorities of the state in constructing the levee contemplated. Their reason for so doing is to protect one of the public highways of the county from injury from the flood waters of the Walhonding river at times of floods in the river.

The commissioners have the legal right to make levees or

Coshocton County Appeals.

embankments to protect public highways. Section 7483 G. C. provides when county commissioners shall build embankments, etc.:

"When a principal public road in a county, except a turnpike road over which tolls are collected, is subject to overflow or inundation so as to render it at any time unfit for public travel, or hinders free and necessary transportation, the commissioners of such county may repair or reconstruct said road by changing the beds of small streams to avoid crossing, changing roads to avoid bridges when the public travel would be better accommodated, or build an embankment or levee sufficiently elevated above all such overflows or inundations; the expense of such embankment, changes or levee shall be paid out of the money in the county treasury raised by taxation for road or bridge purposes."

Under favor of this section of the General Code, we think the commissioners had the right to join the state officers in constructing the levee in question, if it would better accomodate public travel from the overflows or inundations of the same from the flood waters of said river.

The fact that the state can not be sued, may render the county liable for any damage to the private owner of lands who is damaged by the improvement; or if the state is exempt, this fact will not exempt the commissioners from liability to the party injured. If said improvement is wrongfully made by the commissioners, or, in other words, the remedy at law is not destroyed by such condition, it is contended by the plaintiff that by constructing this levee as planned and intended by the state, assisted by the commissioners, it will and has interfered with the flow of the waters of said river, and by interfering with the natural flow thereof, the lands of plaintiff are and will be damaged, and to avoid such damage this action brought to restrain and enjoin the defendants from constructing or maintaining such levee or improvement.

The levee may not be in the nature of a permanent improvement, one that could not be removed if it were unlawfully constructed; neither is it a case where the damage to plaintiff's land, if any, is complete when the improvement is completed. It

Crawford v. Miller.

is not a case of injury that could not be abated by the removal of the levee. Then the question is presented, Is it such an action that the plaintiff would have an adequate remedy at law, under the act hereinbefore cited from 103 O. L. Secs. 455, 459 and 449?

The last section cited contemplates a trial by jury under certain conditions, but what right the plaintiff may have as to damages against the state for constructing this levee or whether he has any right to damages against the state the court is not called upon to decide. The question here presented is as to the right of the plaintiff to maintain a suit for injunction against either the state or the county commissioners restraining them from constructing the levee mentioned in the petition.

That a court can not and will not interpose to control the discretion of public officers in the absence of evidence of bad faith or corrupt and malicious motives is too well settled in Ohio to be controverted. We think the commissioners have the right to join with the state or to act alone in constructing this levee, acting in good faith for the purpose of protecting one of the public highways of the county. If it were necessary for the benefit of the public to construct this levee to protect the highways leading from Warsaw to Coshocton from the flood waters of the Walhonding river, the commissioners, under the section of the General Code above cited, have the right to do so. If by so doing the plaintiff should be damaged, the county may he liable and may be required to make him whole for whatever injury he has sustained by reason of the improvement. We think there is no question but the commissioners have the right to make or to join the state in constructing and maintaining this levee across the flood channel of the Walhonding river at the place and in the manner proposed and intended by the officers of the state for the protection of the state's property, including the dam in the river, known as the six mile dam, and if the commissioners believe the public highway described in their answer will be improved and benefited and protected from the flood waters, they have the right so to do, and they can not he enjoined from making the improvement or maintaining said levee.