| Iowa | Jun 24, 1887
It is conceded that the plaintiff owned certain real estate within the corporate limits of the incorporated town of Jefferson, which had not been laid out into blocks and lots, and had not been platted and recorded as such, but was used for agricultural purposes. It is assumed by counsel, and we infer it to be true, that no streets or alleys had been laid out over the plaintiff’s land. The question, therefore, is fairly presented whether, under the statutes of this state, the board of supervisors are authorized to establish highways over territory within the limits of an incorporated town. The authorities bearing on this subject are not
When the board of supervisors establish a highway, it is the duty of the auditor to notify the township clei’k of such fact, whose duty it is to notify the highway supervisor to have the same opened and worked. (Code, § 949.) Such supervisor has no authoi’ity to open or work a highway within the corporate limits of a city or town. The street < commissioner of the corporation, however, has such authority. And although the territory in question may not have been taxable for genei’al municipal'purposes, becanse .it was used for the purpose of agriculture, yet it is taxable by the cor-poi’ation for highway pui’poses. (Chapter 158 of the acts of the Nineteenth General Assembly.) There is a clear and recognized distinction between streets and highways in cities and incorporated towns and unincoi’porated towns. The lat
It is also true that cities and incorporated towns have the control of all territory within the corporate limits, to abate nuisances, regulate fast driving on streets and highways thereon, to authorize or forbid the laying down of railway tracks over the streets and highways, to license exhibitions thereon, and many other things of like character. It seems to* us that, when the several powers so conferred on municipal corporations are considered, the jurisdiction and power of such corporations over territory within the corporate limits must be regarded as exclusive for the purpose of establishing highways or streets on or through such territory. "While it has not been directly so decided, we think in principle it has been so held. Public bridges are a part of a highway. (Code, § 45, subd. 5.) And in McCullom v. Black Hawk County, 21 Iowa, 409" court="Iowa" date_filed="1866-12-11" href="https://app.midpage.ai/document/mccullom-v-black-hawk-county-7093646?utm_source=webapp" opinion_id="7093646">21 Iowa, 409, it was held that a county was not liable for an injury caused by a defective bridge within the corporate limits of a city, although the highway had been established and the bridge constructed and maintained for many years by the county prior to the «incorporation of the city. So, in Clark v. Town of Epworth, 56 Iowa, 462" court="Iowa" date_filed="1881-06-20" href="https://app.midpage.ai/document/clark-v-town-of-epworth-7099566?utm_source=webapp" opinion_id="7099566">56 Iowa, 462, it was held the town had full control of the streets, and that it could not escape liability for an injury caused by the unsafe condition thereof on the ground that they were put in such condition by the supervisor of the highway district. We cannot think it was contemplated that both counties and cities should have concurrent jurisdiction over such territory for the purpose of establishing highways, for the reason that it is quite clear that the jurisdiction and liability of the counties •would cease immediately upon the establishment of the highway, and all the burden of maintaining it be cast on the municipality.