Douglas County v. Papillion Drainage District

Letton, J.

This is an action brought by Douglas county to restrain the Papillion Drainage District from digging drainage ditches across public roads in Douglas county. No consent was given by the county authorities to cross the roads, and no condemnation proceedings had been liad. The injunction was denied, and the county appeals.

The Papillion Drainage District was organized under and by virtue of chapter 153, laws 1907 (Comp. St. 1911, ch. 89, art. V), which contains the following provision relied upon by defendants to give authority to cross public roads without securing the right of way as they must do over private property: “Section 24. Said district may dig ditches and drains under and across railroads and public highways.” The county takes the position that section 24 is unconstitutional and void, as violative of the provision of the constitution that “the property of no person shall be taken or damaged for public use without just compensation therefor.” Const., art. I, sec. 21. We are of the opinion that this provision of the constitution is not involved. The public roads are not “the property of ‘any’ person.” They are public easements uuder the full control of the legislature, which may authorize them to be used by other public or quasi-public agencies, with or without such restrictions as it may deem proper. Elliott, Roads and Streets (3d ed.) sec. 509 (421). In Krueger v. Jenkins, 59 Neb. 641, it is said: “The right in this litigation is one belonging exclusively to the public at large. Neither Douglas county nor its citizens have any peculiar interest in it. A county does not hold the legal title to county roads within its borders; it has no power of disposition over them; it has no proprietary interest in them; in performing the duties with which it is charged in connection with them, it acts as an agent of the state, and in the interests of the general public.” Alt v. State, 88 Neb. 259. The license to cross the highway given by the legislature was within its powers to grant. The duty, being cast by law upon the defendants to restore the highway, relieves the county from any pecuniary outlay on account of the cutting of the road. The legislature having imposed no condition upon the license to enter conferred upon the district, we find no warrant for the county authorities to do so.

The judgment of the district court is therefore

Affirmed.