— I. The defendant is a county. The plaintiff was operating his tractor upon a township road, and undertook to cross over a temporary culvert thereon. The culvert broke, under the weight of the tractor, with resulting damage. Section 1527-s8, as amended by the thirty-sixth general assembly, Code Supplemental Supplement, 1915, is as folloAvs:
“The duty to construct and maintain all bridges and permanent culverts throughout the county is imposed upon the board of supervisors. All culverts and bridges shall be paid for out of the county bridge fund, except as provided in Section thirteen of this act. Where conditions are such as to warrant or necessitate the same, the board of supervisors shall furnish township trustees metal or other temporary culverts authorized by the state highway commission to be placed by them on their township road system.”
By regulation of the highAvay commission, temporary culverts are those confined to a diameter not exceeding 36 inches. Permanent culverts are such as are in excess of such diameter. Expert evidence was introduced by plaintiff to the effect that the quantity of drainage through such culvert would require a structure 42 inches in diameter. The case was tried and submitted on the theory that, under the statute above quoted, it was the duty of the county to construct and maintain such a
II. For convenience of reference, we devote this division of the opinion to excerpts from the opinions in1 our previous cases, as indicating the judicial history of the question here presented. From Packard v. Voltz, 94 Iowa 277:
“The work done on the highway was in pursuance of this provision, and we are to determine whether or not, in the doing of such work, the county is liable for the negligence, of its agents or employees. We think the holdings of this court, upon analogous facts, are decisive of the question. But for the rule announced in Wilson v. Jefferson County, 13 Iowa 181, and the cases adhering to it, the one now contended for would have no authoritative support in this state. The rule of that case has been doubted, and the doubt, on common-law authority, has recognition in the holding of this court. In Kincaid v. Hardin County, 53 Iowa 430, speaking of that case, and of its standing ‘almost, if not quite, alone,’ support is given to the holding be
From Snethen v. Harrison County, 172 Iowa 81:
‘ ‘ Counties, unlike cities and incorporated towns, are not, as a rule, held liable for torts committed by them, so long as they are acting within the scope of their governmental powers. They are quasi municipal corporations, engaged in the performance of governmental functions, and are not responsible for the neglect of duties enjoined upon them, in the absence of statute giving a right of action. * ■ * * The defendant county was in the exercise of its powers upon the road in question, and it must be assumed that its board or employees, or both, were extremely negligent in leaving the dangerous place in the road. But they had not constructed a bridge at the point of the accident, so plaintiff’s intestate was not injured by reason of a defective bridge. True, the board was bound to construct a bridge at the place where the accident occurred, and was given a fund with which to do it and to keep the structure in repair. It was also authorized to construct the road, and doubtless to keep it in repair. But there is nothing in the statute anywhere which indicates any intention on the part of the legislature to impose any liability upon the county for negligence on its part in the doing of its work. Appellant,contends, however, that the county should be held liable on the same theory that it is responsible for the construction, maintenance, and repair of county bridges; and it must be confessed that the analogy is quite close. But this court, in adopting the rule of liability for defective
See, also, Soper v. Henry County, 26 Iowa 264.
III. There is a further reason why the judgment below cannot stand. The road in question was a township road, and not a county highway. The culvert in question was a wooden one, which had been constructed by the township some years befoi’e. The county supervisors had never exercised any supervision over the culvert or over the highway upon which it was laid. The culvert had been constructed by the township trustees before the enactment of Section 1527-s8, above quoted. Nothing had ever been done upon this township road, pursuant to this statute. The culvert was a mere drain from a watershed of 240 acres. Expert evidence was introduced to the effect that such drainage would require a culvert 42 inches in diameter. If such a culvert were constructed, it would come within the scope of duty of the board of supervisors, and would be deemed a permanent culvert, within the meaning of the statute. But no such culvert had been constructed. The court instructed the jury, in substance, that, if the old culvert was defective and unsafe, and if the flow of water would require a culvert in excess of 36 inches in diameter, then it was the duty of the board of supervisors to construct such culvert, and that the failure of the supervisors to so construct such culvert would render the county liable for negligent maintenance of the old culvert. The effect of this holding was to say that the enactment of the statute which put the construction and maintenance of bridges and permanent culverts within the scope of the duty of the supervisors created forthwith a liability upon the county for negligent maintenance as to every culvert on every township road in the county, if the place thereof should ultimately require for drainage purposes a culvert in excess of 36 inches. The proposition cannot be sustained. It is clearly opposed to