
    Case 19 — PETITION ORDINARY
    Oct. 2.
    
    Trustees of Catlettsburg v. Kinner, &c.
    APPEAL FROM BOYD CIRCUIT COURT.
    1. Trustees of a town may be compelled to repair streets.
    
      A mandamus is awarded against the trustees of the town of Catlettsburg to compel them to repair a street so as to prevent its being washed away by the waters of the Ohio and Big Sandy rivers.
    
      Under the facts set forth in this case, it is held that “the duty of the trustees to repair the street must be deemed ministerial rather than legislative, and they may be compelled to discharge it by mandamus, upon the prayer of the property-holders directly and specifically interested therein.” (3 Met. 494; 10 Casey, 296.)
    L. T. MOORE FOR APPELLANTS.
    The town of Catlettsburg did not own the strip of land between Front Street and the rivers, and had no right to enter upon it to protect the street or the property of the appellees. It was the duty of appellees to protect their own property, and not of the town.
    In the absence of any statutory law to make the town liable to private parties for a failure to keep the streets in repair, or any contract to protect their property, a mandamus should not be awarded to require the town to rebuild the lost street or protect the property of appellees. (Dillon on Municipal Corporations, secs. 753, 763.)
    The statute making the trustees of a town liable for failing to keep streets and alleys in repair only makes them liable to the same extent as are overseers of public roads; that is, for a small fine.
    S. G. KINNER and K. F. PRICHARD for appellees.
    This is a proceeding under chapter 12, Civil Code, to compel the trustees to repair and keep in order a portion of Front Street, over which the commerce of the town passes to the public landing.
    “ The published map of the town must be taken as the certain and recorded representations of the town.” (Memphis & St. Louis Packet Co. v. Grey, 9 Bush, 137.)
    • In the proceedings to condemn the land between Front Street and the river for wharf purposes, the claimants failed to appear and claim damages, and thereby waived their right to damages, and they are concluded by the judgment of condemnation. (Cooley’s Con. Lim., pages 561-2, and cases cited.)
    
      When the common council of a city is empowered by its charter to keep in repair the streets of a city and to remove all obstructions therefrom the grant of power will be construed for the public benefit, and its execution may be insisted upon as a public duty. (People v. Mayor of Bloomington, 5 Chicago Legal News, Supreme Court of Illinois; 22 Barbour, 404; High on Extraordinary Legal Remedies, p. 413; Hammar v. City of Covington, 3 Met. 494; Moses on Mandamus, p. 133; City of Henderson v. Sandefur & Co., 11 Bush, 550; 3 Hill, 612; 5 Selden, 9; 53 Mo. 33; 17 Ind. 267; 10 Casey, 266.)
   CHIEF JUSTICE LINDSAY

delivered the opinion oe the court.

There seems to be no substantial difficulty in the way of the corporate authorities of the town of Catlettsburg entering upon and appropriating any portion of the grounds necessary for the construction of the works intended to protect that portion of Front Street about to be carried away by the encroachments of the waters of the Big Sandy and OhiQs rivers.

Section 27 of the charter of said town provides that “the board of trustees shall have power to provide for the improvement of the public streets and alleys of said town, to close any they deem useless, the enlargement, extension, and improvement of public landings, and public drainage of said town,” etc.

Although the power to improve and repair public streets is in its nature legislative, yet it is conferred on the municipal authorities for the benefit of the public; and whenever Ihe necessity for its exercise is so apparent an,d obvious as to justify the inference that the refusal of the legislative body to act is the result of a determination not to discharge a plain duty, rather than of mistaken judgment as to the existence of the necessity, then the exercise of the power may be coerced through appropriate proceedings in the courts. (City of Henderson v. Sandefur & Co., 11 Bush, 550; 3 Hill, 612; and 5 Selden, 9 New York, 163.)

This doctrine was upheld and acted on by this court in the case of Hammar, &c. v. City of Covington (3 Met. 494), in a case almost identical in its facts with this. Here Front Street has been improved. A number of valuable business-houses have been erected fronting upon it, and it has been one of the principal streets of the town. The action of the water is gradually wearing away the outer edge of the street, and the wagon-way is reduced, in some instances, to about eight feet. The usefulness of this avenue of commerce is greatly impaired, and unless steps are taken to arrest the progress of the work of destruction, the entire street and also the buildings of the appellees will eventually fall into the river.

It is reasonably certain that the expenditure of a sum which the town can lawfully raise by taxation, will restore the street to its original width of thirty feet, and protect it against the destructive action of the water in the future.

Under this, state of facts, the duty of the trustees to repair the street must be deemed ministerial rather than legislative, and they may be compelled to discharge it by mandamus, upon the prayer of the property-holders directly and specially interested therein. (3 Met. 494; 10 Casey, 296.)

"Wherefore, the judgment of the court below must be affirmed.  