City of Lewiston v. Booth , 3 Idaho 692 ( 1893 )

MORGAN, J.

(After Stating the Facts.) — At the time this ditch was constructed, E street, at the point of this crossing, was a county road. No one of the inhabitants could lawfully obstruct it, or render it dangerous to travel. The common law is, and was at that time, that where a person or corporation builds a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense by some reasonably safe and convenient means of passage. This duty is founded on the principle that it was the act done in pursuit of their own advantage that rendered this necessary, and therefore they, and not the public, should be burdened with its expense. (See State v. St. Paul etc. Ry. Co., 35 Minn. 131, 59 Am. Rep. 313, 28 N. W. 4, and cases there cited.) In Dygert v. Schenck, 23 Wend. 446, 35 Am., Dec. 575, and note, the defendant, being the owner of the ranch through which the highway passed, cut a millrace across the road for his own use, and built a bridge across the same. In 1837, the bridge being out of repair, the plaintiffs mare was injured, and he brought suit against the owner of the ditch for damages. The court says: “The public could require that he' should make and keep the road as good as it was before he dug the ditch. This he accomplished by building a bridge, which finally got out of order. In suffering this the defendant came short of his obligations, and he was held liable for the iujury done the mare of the plaintiff.” In Heacock v. Sherman, 14 Wend. 58, the court declared, after looking into the facts, that the duty of repair rests upon the company, and that they could not escape damages for any mischief occasioned by it. The very necessity of the erection of the bridge arose out of a nuisance which was the work of the defendant himself. The whole object of the bridge was to protect himself, the land, the mill, the water, the profits; and therefore the bridge was for him. The public could derive nothing but mischief. In Eyler v. Commissioners, 49 Md. 257, 33 Am. Rep. 251, the appellant brought an action against the county commissioner of Allegheny county to recover damages sustained by reason of the defective condition of the bridge across the Chesapeake and Ohio Canal, over which he was riding. The court says: “It is clear the canal company were authorized to cross and sever all existing highways throughout the route prescribed by its charter, but in thus cutting its canal across highways the company was bound to unite for the public accommodation any highways so divided by a reasonably convenient thoroughfare over or under its canal.” The statute also requires the defendants and their grantors to construct and keep in repair suitable bridges, causeways and embankments, so that no water shall flow on such road or roads to injure the same. See section 1 of “An act to protect public roads and highways from injury,” approved January 10, 1866. (3d Sess. Laws, 178.) This law was enforced until 1875, and does not seem to have been then repealed, but, in addition thereto, section 13 of the act of January 12, 1875 (8th Sess. Laws, 681), was enacted, which "added to the provisions of this ■act others, set forth therein, providing that if any person, mining, ditch or milling company shall dam the waters of any stream of this territory so that the water shall overflow any wagon or other road situated on the margin or banks of said ■stream, or so as to cause the road to become undermined or •damaged, said person, company or corporation shall rebuild the same, or pay the costs of having the same done. ' Both •of the sections were continued in force until February 5, 1885, when sections 40-42 of “An act to amend an act regulating roads, highways and bridges” were enacted. (See 14th Sess. Laws, 143.) These provisions were re-enacted in sections 968 and 969 of the Revised Statutes of 1887. This statute required all persons or corporations desiring to run water over any public road to construct ditches, and build good, substantial bridges ■over the. same, and keep them in order. If this duty was neglected, the overseer of highways was required to construct the ■same, and keep them in order, at the expense of the owners of the ditch. This obligation rested on the owner or owners of ditches crossing highways, whether in or out of a city or town. •Section 43 of the act of February 5, 1885 (13th Sess. Laws, 173), organizes each incorporated city in this territory into a separate road district, and authorizes the city council to elect •a road supervisor, who shall have all the power and perform •all the duties of road supervisors appointed by the county commissioners. These provisions were carried into the Revised Statutes of 1887, in section 887, which gives the council in cities the same power as county commissioners, and they may cause bridges, causeways, etc., to be erected on streets whenever necessary, and keep the same in good repair. (See, also, Idaho Rev. Stats., see. 7139.) It will be seen, therefore, that both the common law and the statutes in force at the time of the construction of this bridge, and for a long time prior thereto, compelled the defendants to reconstruct and repair said bridge whenever the same became unsafe or inconvenient for public travel. The amendment to the ehárter of the city of Lewiston in 1881 extended the city limits so as to cover and include the point on E street where this ditch crosses the same. This did not change or weaken the obligation of the defendants to keep said ditch securely bridged, but transferred the power to compel the same from the county commissioners of the county to the city council of the city. The obligation resting upon defendants to rebuild said bridge whenever necessary authorizes the city, in case they neglect or refuse to do the same, to build it at the expense of the defendants.

The question as to whether the city or the defendants would be liable for any injury occurring to the person or property of an individual which might happen by reason of the unsafe condition of the bridge has nothing whatever to do with the question at issue in this suit. The building of the bridge by the city creates an implied contract on the part of the defendants to pay the costs and expenses of the same by operation of law.

The plaintiff claims that the court erred in not finding that the defendants had obtained a prescriptive right to maintain their ditch across the street without a bridge. A private party or corporation constructing a ditch across a public highway or street of a town or city in such way as to render the highway or street unsafe or inconvenient for public travel, and maintaining such a ditch without a bridge or other safe and convenient way of crossing would be guilty of maintaining a nuisance. (Idaho Rev. Stats., see. 3630.) No lapse of time can give a prescriptive right to maintain a nuisance. (Idaho Rev. Stats., sec. 3630.)

The counterclaim for damages is a cause of action which arises, if at all, from an act which would be a trespass to property; and a cause of action for trespass to property cannot be a subject for counterclaim against an action arising upon a contract, express or implied. The judgment of the court below is affirmed, with costs to the respondent.

Huston, C. J., and Sullivan, J., concur.