59 P. 716 | Idaho | 1899
— This action was brought to recover $194.80 alleged to be due the appellant, Boise City, for money expended in the construction of a certain bridge across the respondent’s water ditch, where said ditch crosses Fifth street of said city. The respondent answered, and the cause was heard upon an
Several errors are assigned, all to the effect that the finding of facts is not supported by the evidence. It is admitted in the agreed stipulation of facts: That the respondent, the Boise Bapid Transit Company, is a corporation duly organized and acting under the laws of the state of Idaho, and has been such since the thirteenth day of August, 1890, and since that date has been the owner of, and has operated and controlled, the water ditch referred to in the complaint. That the water running through said ditch is owned and used by the respondent for the purpose of carrying on and operating its street railway in said Boise City. That during the year 1863, the said water ditch was constructed by respondent’s predecessors in. interest, and has during.all of the time since its construction been running in its present course. That a patent from the United States to the lands over which said ditch extends was issued to the mayor of Boise City, May 2, 1870. That on the eleventh day of January, 1866, the appellant was duly incorporated as a municipal corporation under the name of “Boise City,” and at that time said Fifth street was laid out as a street and public highway, and has ever since been used as a street and public highway of said city, and was within the corporate limits thereof, but that said street was not extended farther south than across Front street of said city, until the Davis addition became a part of said city, in the year 1892. That said ditch and said Fifth street, and the other streets referred to in said complaint, to wit, Seventh, Front, and Eighth streets, intersect and cross each other. That on the twentieth day of July, 1899, a certain bridge across said ditch, located where said ditch and Fifth street intersect each other, became and was out of repair and dangerous, and wholly unsafe and insufficient for public travel. That on the twenty-fifth day of July, 1899, the street commissioner served legal notice upon the respondent of the dangerous and unsafe condition of said
The only question in the ease is, Upon whom devolves the duty of constructing the bridge over respondent’s ditch across Fifth street? The record shows that said ditch must be bridged at said crossing, as said ditch is shown to be an obstruction to the free and customary use of said street by the public. Said obstruction is a public nuisance. Said ditch at said point may not have been a public nuisance at the time of its construction, but conditions have changed since then. What ivas noth
Subdivision 8 of section 3 of the charter of Boise City, as amended by the laws of 1899 (page 311), provides, among other things, that the mayor and common council shall have full power and authority within Boise City to prevent and abate nuisances, and generally to determine and declare what shall he deemed nuisances, and to provide for the removal and abatement thereof. The record shows that said bridge across said street was in a dangerous and unsafe condition; that said ditch was maintained by respondent in that condition; that the proper authority of said city notified respondent of that fact, and to repair said bridge, which it refused to do. The maintenance of said bridge in its then unsafe condition obstructed the free use of said street by the public, and wa’s clearly a public nuisance, as defined by sections 3620, 3621 of the Revised Statutes. While it appears from the record that said ditch was constructed in its present location prior to the time said Fifth street was laid out across it and dedicated to public use, it is also true that one James H. Slater and his associates, who were owners of said ditch in 1866,.made application to the territorial legislature of Idaho, to grant them a right of way for said ditch through Boise City, which application was granted by an act entitled “An act to grant James II. Slater and his associates right of way for a water canal or ditch in Ada county,” approved January 11 A. D. 1866. (See Laws 3d Sess., p. 239.) The first section of said act grants said Slater and his associates a right of way for a canal or ditch, of a capacity not to exceed three thousand inches, for a distance of three miles from a point then marked as the head of said ditch, on the ranch of Mooney & Co.; thence through Front street, in Boise City; and thence down the valley of Boise river. The second section provides that the owners of such ditch may sell the water conducted by said ditch for
But it is argued by the respondent that the act of March 15, 1899, amending sections 935, 968 of the Revised Statutes (Sess. Acts 1899, p. 405), exempts respondent from maintaining bridges over its said ditch, where it runs over the public, highway, in repair. To this argument we reply that said act is prospective in its operation, and does not apply to ditches and canals that had been constructed across public highways prior to the time said act went into effect. It is doubtful whether the legislature has power to take away from the public, by legislation, a right which had vested in the public prior to such legislation.
The conclusion we reach is that it was the duty of respondent to build said bridge, and as it failed and neglected to do so, and the city built it, the city may recover the cost of building the same from respondent. The judgment is reversed and the cause remanded, with instructions to enter judgment in favor of the appellant, as prayed for in the complaint. Costs of this appeal are awarded to the appellant.