87 Neb. 132 | Neb. | 1910
This is a mandamus proceeding to compel the respondents to construct a bridge at the intersection of their mill-race and a highway. The writ was issued, and the respondents appeal.
The facts, in so far as they are disclosed by the record, are undisputed. The raceway in question was constructed by the respondents’ grantor in 1873 upon premises owned by him in fee simple. In 1880 a highway was laid out so as to intersect said raceway. A bridge subsequently constructed by the county in the highway and over the raceway has been continuously used by the public, but is now out of repair.
In 1887 the legislature passed an act entitled “An act to compel railroad corporations and others to make and keep in repair crossings.” Laws 1887, ch. 73. (Ann. gt. 1909, sec. 6162 et seq.) gection 1 of that act is as follows: “Any railroad corporation, canal company, mill owner, or any person or persons who now own, or may hereafter own or operate, any railroad, canal, or ditch that crosses any public or private road shall make and keep in good repair good and sufficient crossings on all such roads, including all the grading, bridges, ditches, and culverts that may be necessary, within their right of way.”
Counsel for the respondents argue that the order of the district judge deprives their client of his property without due process of law, whereas the relator’s counsel urges that the judgment compels the performance of a duty imposed by the legislature in the exercise of the
It is a matter of common knowledge that every part of a roadbed used for railroad purposes must be properly constructed and carefully maintained to insure the safety of persons upon the carrier’s moving trains, and that to
Independently of the statute, the miller’s liability case his raceway crosses a highway laid out before the raceway is constructed is well established. In that event he should reunite the way by the construction of a bridge and thereafter keep it in repair. City of Lowell v. Proprietors of Locks & Canals, 104 Mass. 18; Eyler v. County Commissioners, 49 Md. 257; Woodring v. Forks Township, 28 Pa. St. 355; President and Trustees of West Bend v. Mann, 59 Wis. 69; State v. Lake Koen N., R. & I. Co., 63 Kan. 394; Trustees of Burton Township v. Tuttle, 30 Ohio St. 62. But if the highway is laid out over an artificial waterway theretofore constructed, the proprietor of the canal, unless bound by the terms of a franchise or private contract, is under no duty to construct or repair a viaduct in the highway and over the waterway. Perley v. Chandler, 6 Mass. *454; City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Morris Canal & Banking Co. v. State, 4 Zab. (N. J.) 62; City of Denver v. Mullen, 7 Colo. 345. If the legislature, under the circumstances of this case, may force the respondents to construct the bridge in question, it can compel the proprietor to construct and maintain bridges over creeks and other natural watercourses upon his premises should the public authorities lay out and open a public highway through his land so as to cross those streams, and it-may further impose upon' him the expense of grading and keeping in repair the
It will be noticed that the act commands the persons therein described to construct and repair crossings “within their right of way.” Giving effect to all of the language employed by the lawmakers, it would fairly seem that the statute does not refer to the owner of a private mill whose title to the land through which his raceway is excavated is in fee simple, subject to a mere easement in favor of the public. The relator therefore has not made out a case against the respondents.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Eeversed.