
    Thornton v. Springer.
    A motlb.i against an overseer of a road for failing to keep the road, &c„ olear and m good order, «fee., should state <¿hafc the overseer had been duly notified of his appointment, and that the road, «feo., had been uncleared or out of repair for twenty days continually. t
    t Overseers of roads are not responsible in damages for injuries occasioned by their failure to keep roads, &c., in good order; they are Liable only for the penalty imposed by the statute, to be recovered in the mode prescribed.
    Error from Montgomery. This suit was brought by the plaintiff in error to recover damages for the loss of a part of Iiis oxen by a bridge breaking down when his team was passing over it. The petition stated that by an order of the County Court of Montgomery county, made at the February Term, 1849, the defendant, Alfred E. Springer, of said county, was appointed overseer of that part of the road leading from the town of Montgomery in the direction of the city of Houston, from a point one mile south of the town of Montgomery to a point one mile south of Hake Creek; that the said order designated the hands assigned to said road, and declared the duration of the service of the overseer, a copy of which was appended to the petition; that by virtue of the said appointment the defendant had authority, and it was his duty, to keep in good order a bridge across Lake Creek, the same being situated on the said road within the limits assigned to the said overseer; that Springer neglected to keep the said bridge clear and in good order; that the bridge was necessary to travelers and wagons traveling' on the said road; that in consequence of such neglect the bridge became rotten and unsafe and weak, so that it broke down whilst a wagon drawn by live yoke of oxen, the property of the petitioner, was traveling on the said road and on the said bridge; that in consequence thereof two yoke of his oxen, of the value of fifty dollars each, were then and there instantly drowned, and the others badly wounded, and he was greatly delayed in his hauling, damaged, &c., all of which he charged to have been by reason of the neglect of the said overseer, the defendant. The defendant filed a general demurrer to the petition. The dumurrer was sustained aud the suit dismissed. The plaintiff brought the ease up by a writ of error and assigned for error—
    1st. The court erred in sustaining the demurrer to the plaintiff’s petition.
    2d. The court erred in dismissing the suit.
    
      Yoakum and McCreary, for plaintiff in error.
    It seems that under the statute there can be no doubt but it is the duty of overseers to repair bridges in their precincts. If, then, it is a duty, a neglect of its performance not oiily subjects the overseer to the penalty given by statute, but iie is responsible to any person in a civil action for any damage he may thereby sustain. The penalty as given by statute is qui tam — cumulative. A public road is the property of the State, the use of which is guaranteed to each citizen; the burden of keeping them up is imposed upon all. So also the right of enjoyment is conferred upon all. If any person charged with the repair'of any part neglects that duty, lie deprives ■others of a right; lie inflicts on him a private injury. The qui tam action allowed by the statute takes from the party none of his private rights. This whole question is finely discussed by Porter, J., in Allard et al. v. Lobau, (2 Com. La. B.., 664, and 2 La. K,, M. S., 217.) The qui tam action allowed by our statute is not a civil action, nor is there anything in its provisions inconsistent with the private remedy previously existing.
    
      H. N. and M. M. Potter, for defendant in error.
    The demurrer of the defendant to the petition of plaintiff was properly sustained bjr the court below, because—
    
      1st. The petition did not show that the defendant had any notice of his appointment as overseer of the road. {Acts of 1848, p. 99, sees. 4 and 5.)
    2d. The petition did not show that the defendant accepted the office or undertook to discharge the duties of overseer of the road. (Acts of 1848, p. 99, sec. 5.)
    3d. The petition did not show that the road or bridge had been out of repair .for twenty days previous to the happening of the matters complained of in said petition. (Acts of 1848, p. 100, sec. 11.)
    4th. The defendant was not liable to the plaintiff in this action for mere neglect to discharge the duties of overseer of the road. (Acts of 1848, p. 100, ■sec. 11; Bartlet et al. v. King, 12 Mass. B., 563 ; Nichols v. Squire, 5 Pick. B., 169; Mower v. Leicester, 9 Mass. B., 247.) >
   Lipscomb, J.

The plaintiff contends that his petition sets up a good cause •of action. The main objection to the petition taken by the defendant is that •it does not contain the necessary averments to give any right of action to the plaintiff, in this : that it does not aver that the defendant had notice of his appointment as overseer of the road; nor does it aver that he had accepted the appointment; nor that the bridge was out of order for twenty days previous to the time the plaintiff suffered the damage complained of in his petition ; all of which averments were necessary to have been made to have given a right of action, and would have to be proved to entitle him to a recovery. He refers to the acts of the Legislature of 1848, p. 99, secs. 4 and 5. These sections are as follows :

“Sec. 4. That it shall be the duty of the clerk of the county court to make out, within ten days after the adjournment of the court, the names of the overseers and all the hands liable to work under them, and accompanying said list a copy of the boundaries of the precincts as laid off by the court, and deliver it to the sheriff of his county; and the sheriff shall, within twenty days .after the reception of the same, deliver to or leave at the residence of the overseer a copy of the same,” &c.
“ Sec. 5. That if any overseer shall fail or refuse to serve after receiving the notice of his appointment, he shall for such refusal be fined twenty dollars, to he recovered,” &e.
“ Seo. 11. That if any overseer of the road shall fail or neglect to keep the .road, bridge, or causeways within his precinct clear and in good order, or suffer them to remain uncleared or out of repair for twenty days at any one time, unless hindered by high water or other sufficient cause to be adjudged by the court having jurisdiction of the same, such overseer shall forfeit and pay for every such offense the sum of twenty-five dollars, to be recovered in the manner prescribed in the fourth section of this act.”

It may here be noticed that for any default the penalty shall be recovered -by motion of the district attorney in the District Court of the county where ■the default happened.

If the penalty under any of these sections had been sought to be enforced, the district attorney would have had to have stated as the foundation of his motion that the notice as required by law had been served on the overseer of his appointment. He would have been required also to state that the road, bridge, or causeway had been out of order for more than twenty days, and to prove both the notice and the time that it was out of order to have authorized a judgment for the penalty. If the penalty sought to be recovered had been for refusal to accept after notice of his appointment, it would have only been necessary to prove the notice, and also to prove that he refused to accept the appointment; because the penalty under this section only accrued on such refusal.

Had the statute authorized these penalties to have been recovered in a qui ¿am action, these averments would have been essential to the lotting in the proof of the default; and certainly the reason for requiring them is not less when the suit is brought on common-law principles, to recover individual damage sustained in consequence of such default. We believe, then, that these-averments were essential, and the omission of them sufficient to sustain the defendants demurrer; because without them he could not have been permitted! to introduce any evidence of the default whatever.

We might stop here and affirm the judgment. But there is another and higher ground that could be taken in support of the demurrer. It struck me when the petition was read in this case that at common law no right of action would accrue to an individual for such default; that an overseer of a highway, from which he derives no more advantage than such as is common to the whole-community, whose appointment is thrown on him not from choice, and whose duties are imposed by the statute authorizing his appointment, was only liabte in the mode pointed out by the statute for any default of duty imposed by such statute. His position bears no analogy to that of a ferry, bridge, or road kept by a corporation or an individual for certain compensation paid by passengers or travelers to such corporation or individual. In the latter case the compensation paid for the use of such ferry, bridge, or road would raise an obligation to keep them in good order; and if their failure to do so resulted to the damage of any person, a right of action would accrue to the person so damaged at common law.

In the case of Mower v. The Town of Leicester (9 Mass. R., 247) the question, was brought before the Supreme Court of Massachusetts, and the court, after taking time to deliberate, held that no action at common law would lie. The case in principle was like the one before us. It was this: The plaintiff, who-was the proprietor of a stage running on a public road through the town, brought an action to recover the value of a horse in his team that had been killed in consequence of getting one of his feet hung or fastened in a hole in a stone bridge within the limits of the town. By a statute of tiie State the town ‘was required to keep the road and bridge in good order under certain penalties for a neglect of duty in doing so. The town was required to. do in that case what the overseer is required by law to do here; and it was hold that no action at common law could be sustained for such neglect.

The case cited by the counsel for the plaintiff in error, of Allard et al. v. Loban, (2 La. R., N. S., 217,) is altogether unlike this. It was a case where-the plaiutiff sought to recover damages against the defendant for obstructing a. right of way. He was not an overseer of the way, but was proprietor of the land adjoining. And the question was whether the nuisance could give to those injured by it a right of action, or should it be abated in the manner directed by statute. It was held that those injured by the obstruction had a common-law right of action, and, although bearing no analogy to this case, there is no doubt that it was decided correctly. It was not for the omission of" an officer to perform a statutory duty for which a penalty was imposed, but the act was unlawful in itself. And no one would doubt that in this State, if any individual were to make an obstruction in a highway, such as stopping it up or digging a pit in it, and damage was sustained by such unlawful obstruction, a right of action would accrue to the person injured. The demurrer was therefore well taken, and there is no error in sustaining it.

Judgment affirmed.  