County of Blaine v. Brewster

32 Neb. 264 | Neb. | 1891

Maxwell, J.

The defendant in error was possessed of a bridge 180 feet in length, across the North Loup river, at the town of Brewster. A public road was duly located, on a petition, to arid over said bridge, and the same appropriated by the public. The testimony shows that an appraiser was appointed by the county commissioners, who fixed the value of the bridge at $610, and a claim for that amount was filed against the county, which claim the county board after-wards disallowed. The defendant in error thereupon appealed to the district court, where judgment for $610 and interest was rendered in bis favor, from which judgment the county now brings the cause into this court by petition in error.

It is contended that the county had no authority to appropriate the bridge in question, and hence that it is not liable for the value of the same, and in the case of McCann v. Otoe Co., 9 Neb., 324, is cited to sustain that view. In that case the public bridges over the Nemaha river had been carried away by high water, and McCann possessed a private bridge over said river which was left undisturbed. To preserve communication across the river, the county board entered into a contract with him for the use of the bridge and paid him therefor a large sum, and afterwards arbitrators were chosen and the bridge and right of way appraised. The court held in effect, that a public road could not be created in this way; that the statutory mode of locating a public highway must be observed. It is said, page 331, “If a private bridge is desired for the use of the public, the statute points out the mode of procedure by the location of a public road.”

A public road was created in this case across the bridge, evidently for the purpose of enabling the county to appropriate the bridge in question. It thereupon became a public bridge and has been used by the public ever since. It is but justice, therefore, that the defendant in error be paid the value of the same. The proof shows the value to be at least equal to the amount of the judgment. There is no error in the record and the judgment is

Affirmed.

The other judges concur.