70 Neb. 442 | Neb. | 1903
Lead Opinion
This is an action by which Dodge county seeks to compel. Saunders county to pay one-half of the amount expended
Defendant in error contends that the averment, “that the Platte river intervenes between * * * and divides said counties,” is a mere conclusion of law and not admitted by the demurrer; that by reason of the statute (Compiled Statutes, ch. 17, art. 1, sec. 24; Annotated Statutes, 4329), which fixes “the south bank of the Platte river” as the southern boundary of Dodge county, no part of the 'river is in Saunders county; that, therefore, the latter was not liable for the repair of the bridge in question, and that, even if it were, since the resolution called for the repair of two bridges, and the contract was made for but one, there is such a departure and noncompliance with the law as to prevent a recovery, and that, therefore, the petition fails to state a cause of action.
Section 87, chapter 78, of the Compiled Statutes (Annotated Statutes, 6085), provides as follows:
“Bridges over streams which divide counties, and bridges over streams on roads on county lines, shall be built and repaired at the equal expense of such counties; Provided, That for the building and maintaining of bridges over streams near county lines, in which both are equally interested, the expense of building and maintaining any such bridges shall be borne equally by both counties.”
The allegation, that the contract for the repair of the bridge was entered into “in the manner provided by law,” coupled with the notice, bid and contract, itself and the resolution calling upon Saunders county to join in advertising for bids, appear to show a sufficient compliance with the statute requiring the contract to be let to the lowest bidder. At least, we think it should be held sufficient as against a general demurrer, and in the absence of a motion for a more specific statement. Numerous authorities are cited in the able argument of the defendant in error to the effect that, where the bank of a stream is fixed as the boundary of land, no part of the bed of water of the stream is included. We do not understand that
When the legislature speaks of “streams which divide counties,” does it mean the whole stream? If so, there is, probably, no stream in the state to which the statute could apply. In fixing the boundaries of counties bordering on streams, the legislature has used the phrase, “the middle of the channel,” or “the south bank.” In no case has it fixed the entire stream as a boundary line between counties. Indeed, a moment’s reflection will demonstrate that it could not safely have done so. For, if the entire stream were made the boundary, there would be left a neutral zone subject to the jurisdiction of no county. When, therefore, the legislature, after fixing these boundaries, in the language above noticed, refers to “streams which divide counties,” it must be understood as meaning streams in which are situated the boundary lines which divide counties. And this is the practical construction of the phrase, adopted by this court in Cass County v. Sarpy County, 63 Neb. 813. The statute (Compiled Statutes, ch. 17, art. 1, sec. 68; Annotated Statutes, 4379) fixes “the middle of the said main channel of said Platte river” as the south line of Sarpy county. Literally speaking, therefore, the Platte river, that is, the entire Platte river, does not “divide” the counties of Cass and Sarpy; it is only “the middle of the main channel” which divides them. Nevertheless, it was held, and we still think rightly, that section 87, above quoted, is applicable to these two counties, which are divided, not by the entire river, but only by an imaginary line in the river.
Such is also the construction placed upon a similar statute by another court of high standing. In Reiser v. Commissioners of Union County, 156 Pa. St. 315, a case which we shall have occasion to refer to again, the court so construed a statute which speaks of “a stream forming the boundary line between two counties,” and it is said in the opinion:
“A stream is equally the boundary whether the line is*446 at its middle or its edge, and, on the other hand, a stream is equally between two counties whether it is all in one or half in each. Accurately speaking, as the learned judge below points out, there is no stream between counties, for that implies something interposed which is not part of either. But in the popular and ordinary use of language, which the legislature is presumed to intend, between two counties means having one on one side and another on the other, and that is exactly the meaning of forming the boundary line between counties.”
If we are correct, then, in our conclusion that the phrase, “streams which divide counties,” includes all streams which contain or in which áre situated the boundary lines between counties, we are next to inquire whether the Platte river contains the boundary line between Dodge and Saunders counties? Or, in other words, whether that boundary line can be said to be situated in the river? The statute, as we have seen, fixes the line as the south bank. Is the bank, then, no part of the river? Mr. Gould, in his authoritative work on Waters (3d ed.), sec. 41, says: “Every river consists of: (1) the bed; (2) the water; (3) the banks or shores.” Our attention is called to a distinction in some of the cases between “bank” and “shore,” but it does not seem material to our present inquiry. Mr. Justice Wayne, delivering the opinion in Alabama v. Georgia, 23 How. (U. S.) 505, determining the precise boundary between two states which are separated by a river, says, quoting from Grotius:
“A river that separates two jurisdictions is not to be considered barely as water, but as Avater confined in such and such banks, and running in such and such channel. Hence, there is water having a bank and a bed, over which the water flows, called its channel, meaning, by the word channel, the place where the river flows, including the whole breadth of the river.”
In Starr v. Child, 20 Wend. (N. Y) 149, Cowen, J., says:
*447 “The hank and the water are correlative. You can not own one without touching the other.”
The word “watercourse” is synonymous with stream, and in Luther v. Winnisimmet Co., 9 Cush. (Mass.) 171, Bigelow, J., in a charge to the jury, afterwards approved on appeal, said:
. “A watercourse is a stream of water, usually flowing in a definite channel, having a hed and sides or banks.”
Indeed, it seems to us that the correct conclusion is well summarized in the argument for plaintiff in error in Howard v. Ingersoll, 13 How. (U. S.) 380, 391, as follows:
“A river, then, consists of water, a bed, and banks; these several parts constituting the river, the whole river. It is a compound idea; it can not exist without all its parts. Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a river you would have a fathomless gulf. Eemove the bank, and you have a boundless flood.”
We have not overlooked the cases where grants bounding on the bank are said to exclude the stream. The language thus used is invariably dicta, and is employed, incidentally, in discussing entirely different questions than whether the bank of a river is to be treated as a part of it. It seems, to us more logical, and more in accordance with approved legal definitions, to hold that the south bank of the Platte river is to be treated as a part of the river; that “streams which divide counties” include any part of or point in such streams, and that, therefore, the Platte river divides Dodge and Saunders counties, quite as much as if the boundary was the thread of the stream, the filum aqwee, instead of the south bank.
We are strengthened, then, in this conviction, when we consider, as we must, the intent and purpose of the legislature in enacting this statute. The purpose, evidently, was to provide for the building and repair of bridges required in order to travel from one county into an adjacent one, and to impose the expense equally upon both, on the theory that the bridge would be used about equally by the inhabit
We prefer to think with the supreme court of Pennsylvania, in the case above referred to, that it is “the popular and ordinary use of language which the legislature is presumed to intend,” rather than to adopt a construction which would nullify the statute in so large a proportion of the cases to which it was apparently intended to apply. In Cass County v. Sarpy County, 63 Neb. 813, 823, it is said that “Cass and Sarpy counties are divided by the Platte river,” although we have seen that, technically speaking, they are divided only by the “middle of the main
We have referred to Keiser v. Commissioners of Union County, 156 Pa. St. 315, and we close our discussion of this branch of the case with a further reference to it, because it seems to us so pertinent to the case at bar and so fully to support the foregoing views. It was an action to compel the commissioners of Union county to cooperate with the commissioners of Northumberland county in building a bridge across the Susquehanna river. The statute authorizes joint construction of bridges “where the stream or river runs between counties.” There would seem to be more room in the Pennsylvania case than here for the contention made by defendant in error, for Union county is described as “lying on the west side of the river Susquehanna,” thus indicating that it included no part of the river. And, yet, the court holds that the statute is applicable, and says also:
“A stream is equally the boundary line whether the line is its middle thread or its Avesternmost ripple. To find the boundary you must find the stream, and then the part of it defined as the line, but wherever that is it is the stream, and it is the boundary only because of that fact.' No matter whether the boundary is the middle or the edge of the stream, the bridge must connect Avith both banks, and the moment it does so, even if only with an abutment, there is no longer,any one county in Avhich it is located. * * * The obvious meaning of the statute * * * is that * * * bridges over streams forming boundary lines between counties, or running between counties (that is, having one county on one side and another county on the other side), shall be rebuilt by the commissioners of the ‘respective counties.’ ”
We find ourselves also unable to agree with the eminent counsel for defendant in error in his contention that there was a fatal departure in the fact that the resolution, call
Having reached the conclusion that the Platte river “divides” the tAVO counties appearing in this action, it is unnecessary to consider Avhether the other clauses of section 87, chapter 78, are also applicable, though that question is discussed in the briefs, and the petition avers, as Ave have seen, that both parties “are equally interested in the building and maintaining of said bridge.” From our examination of the first clause of section 87, we are compelled to conclude that the demurrer should have been overruled, and we recommend that the judgment be reversed and the cause remanded with directions that such an order be entered.
For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings in accordance with said opinion.
Reversed.
Rehearing
The following opinion on motion for rehearing was filed October 5, 1904. Rehearing denied:
Some of the propositions discussed in the briefs and •upon the oral argument upon the motion for rehearing seem worthy of further notice.
1. The bridge in question - being confessedly located mainly in Dodge county, it is contended that the legislature would not have authority to require Saunders county to expend^the funds of that county in repairing a bridge outside of its jurisdiction; but this proposition seems not to be supported by authority. The second paragraph of the syllabus of the opinion in Washer v. Bullitt County, 110 U. S. 558, 28 L. ed. 249, is:
“At the common law and also by statute, a county may be required and authorized to build and maintain, at its own expense, a bridge or highway across its boundary line, and extending into the territory of an adjoining county.”
The opinion in County of Mobile v. Kimball, 102 U. S. 691, 26 L. ed. 238, which announces the same doctrine, is approved and followed, and in the opinion, quoting from the opinion in a Maryland case, it is said:
“A county is one of the territorial divisions of a state created for public political purposes connected with the administration of the state government, and being in its nature and objects a municipal organization, the legislature may exercise control over the county agencies, and require such public duties and functions to be performed by them as fall within the general scope and objects of the municipal organization.”
The word “stream” which occurs in the statute has two distinct uses. The first and most important meaning of this word is “A course of running water, a river, rivulet, or brook.” Century Dictionary. It is there also stated in connection with that definition, “All rivers and brooks are streams and have currents.” Another and more technical use of the word “stream” is to distinguish the volume of water of a river, rivulet or brook from the banks and bed; thus, as suggested in the former opinion herein, a river is said to consist of three parts: the bed, the bank and the stream. In this latter sense of the word the stream in question is undoubtedly entirely in Dodge
The whole question is not without difficulty, but the construction of the statute adopted in the opinion appears to be the more reasonable one, and the motion for rehearing is therefore overruled.
Reheabing denied.
Jn' the motion for rehearing it is said that, lying within the river, there is a large island situated wholly in Dodge county, and that a part of the Platte river on the north of this island is crossed by the bridge in question; and it is contended that it would be unjust and is not intended, by a fair construction of the statute in question, that Saunders county should be required to build, or share in building or in repairing, the bridge over the north part of the river. This question has not been presented to the court and is not determined.
The case is submitted upon a general demurrer to the petition. If the defendant raises the question by answer, its solution will, apparently, depend upon the intention of the legislature as to the application of the word stream, as used in the statute, to such conditions. The conditions may be such that each part of the river, that part lying on the north side and that part lying on the south side of the island, should be considered a stream, as that word is used in the statute, but we do not find it necessary to express an opinion upon this question in the present condition of the record. The motion for rehearing is overruled.
Reheaeing denied.