105 P. 1076 | Idaho | 1909
— This action was brought for the purpose of determining whether it was the duty of the ditch owner to construct a bridge across his ditch or canal when a public highway is laid out across the same after the canal or ditch has been constructed, and was submitted to the court upon an agreed statement of facts.
The agreed facts show that the canal was constructed in 1890 and that the public road across the same, was laid out in 1907, seventeen years after the canal had been constructed. It is also stipulated that since 1890, the right of way for said canal has been and now is owned in fee by the Pioneer Irrigation District, a corporation, which corporation is defendant
Upon the stipulated facts, the cause was presented to the district court, and the court found that the Pioneer Irrigation District was liable upon said facts and entered judgment against it for the sum of $29.45, the cost of the construction of said bridge. From that judgment this appeal was taken.
Both in the oral argument and in the brief filed on behalf of the county, it appears that the county bases its right to prevail in this suit upon the statutes of Idaho and on the decisions of this court in Boise City v. Boise Rapid Transit Co., 6 Ida. 779, 59 Pac. 716, and City of Lewiston v. Booth, 3 Ida. 692, 34 Pac. 809.
We will first consider the sections of our statute relied upon by the respondent county. Counsel cites sec. 931, Rev. Codes, and contends that it shows the legislative intent was to compel public corporations to relieve the public of expense caused by artificial construction. Said section is as follows:
“Whenever highways are laid out to cross railroads on public lands, the owners or corporations using the same must, at their own expense, so prepare their road that the public highway may cross the same without danger or delay, and when the right of way for a public highway is obtained through the judgment of any court, over any railroad, no damage must be awarded for the simple right to cross the same.”
That section applies to highways laid out across railroads on public lands, and has no reference whatever to canals and ditches.
Counsel next cites sec. 2713 of the Rev. Statutes of 1887, which section is as follows:
*420 “Every water or canal corporation must construct and keep in good repair at all times for public use, across their canal, flume or water-pipe, all of the bridges that the board of commissioners of the county in which such canal is situated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all waterworks must be so laid and constructed as not to obstruct public highways.”
Said sec. 2713, Rev. Stat., applies exclusively to corporations formed for the purpose of supplying water to cities and towns.
That section is contained in Chap. 5 of Title 4 of the Civil Code, Rev. Stat. 1887, and its title is, “Water and Canal Corporations. ’ ’ That chapter contains but four sections, 2710 to 2713, inclusive. See. 2710 refers to the contracts of canal corporations for supplying cities and towns with water. Sec. 2711 provides the duties of water corporations and the manner of fixing the rates to be charged for water. Sec. 2712 provides for the right to use streets, ways, alleys and roads for laying pipes for conducting water into a city or town; and see. 2713 provides that such canal corporations must build and keep bridges in repair, and has no application whatever to water corporations like the appellant, but has application to water and canal corporations organized for the purpose of supplying cities and towns with water. (See Jack v. Grangeville, 9 Ida. 291, 74 Pac. 969.)
In the Rev. Codes, said four sections, with some changes, are found in secs. 2838, 2839, 2840 and 2841. However, only the last sentence in said sec. 2713, Rev. Stat., is contained in sec. 2841, Rev. Codes, all that part of said section preceding said last sentence having been dropped from said section.
Sec. 951 of the Rev. Codes is as follows:
“Any person desiring and intending to run water across any public road, street or highway in this state, must first construct a ditch of sufficient size to carry all such water, and must build a good substantial bridge, with good easy, grades on and off the same over such ditch or ditches not less than sixteen feet wide, of good hewn or sawed timber or*421 lumber, not less than three inches thick, laid on good substantial timbers, not less than six inches square; said timbers shall not be laid more than three feet apart;. Provided, that when the quantity of water of any ditch is such that a box or culvert will carry the same, said water may be conducted across any road, street or highway by means of such box or culvert, which must be adapted to the surface of the road, street or highway, and be built of a length of not less than sixteen feet, and in a manner so substantial as to bear and admit of uninterrupted travel; Provided, that when such bridge or box shall be constructed as above required and reported to the road supervisor of the road district where the same is located, it shall become county property and be maintained as other county bridges; Provided, that the said bridge, box or culvert is accepted by the road overseer as being built according to the above sections.”
See. 3310, Rev. .Codes, is as follows:
“All owners of any ditch, canal, or conduit, or any other means for conveying water, shall build substantial bridges not less than sixteen feet wide, and with boards not less than two inches in thickness (unless the same shall be on a county or state road, when such boards shall not be less than three inches thick), at all places where any county or state road crosses the same, or any road kept open and used by any neighborhood of people for their benefit and convenience. In ease of neglect or refusal of such owners to build such bridges as above required, after a notice of ten days being given by the said board of county commissioners of the proper county, said board shall proceed to the construction of the same, and shall collect the cost thereof together with the costs of suit: Provided, that after said bridge shall have been constructed across any county or state road in accordance with the provisions of this section, it shall thereafter be maintained at the public expense.”
Said section 951 is a part of our statutes on highways, and see. 3310 is a part of our statutes which provide for the appropriation and distribution of water. The provisions of said sec. 951 apply in plain terms to ditches or canals that are
It is next contended that said canal, where it is intersected by said road, is a public nuisance under the provisions of sec. 3656, Rev. Codes, for the reason that it obstructs the free use of said road. Said section is as follows:
“Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, stream, canal, or basin, or any public park, square, street or highway, is a nuisance.”
It is contended that said canal is a public nuisance under the provisions of said section because it obstructs the free passage or use of said highway. Said section provides, among other things, that anything which unlawfully obstructs the free passage or use of a highway is a nuisance. But there never was a free passage or use of a highway across said
The case of Boise City v. Boise City Rapid Transit Co., supra, is clearly distinguishable from the case at bar. Subdiv. 10 of see. 37 of the charter of Boise City (see Rev. Ordinances of Boise City, p. 12) provides that the council of said city has full power and authority “to prevent and remove nuisances and to declare what shall constitute same and to punish persons committing or suffering nuisances and to provide the manner of their removal and to make the cost of such removal a lien upon the property where such nuisances existed. . ” The record in that case showed that the bridge across the ditch was in a dangerous and unsafe condition; that it was maintained by respondent in that conditio^; that the proper authorities of said city notified the owners of that fact and directed them to repair said bridge, which they refused to do. That company was engaged in the business of conveying water through said ditch for sale and rental, and this court in that case stated as follows: “The rule is well settled that when a city extends its limits, offensive trades and businesses must be removed beyond the immediate
It nowhere appears in the case at bar that the canal or ditch .referred to had become a nuisance where said bridge was placed across it. It does not appear that the business in which the respondent irrigation district is engaged has become offensive to the people living in that district, or that said ditch was such an obstruction in a highway as to come within the provisions of said section 3656, Eev. Codes. While it is true the county had located a road across said canal, it is also a fact that said right of way had to be repaired in places, at least, where it crossed said ditch before it was in a condition to be traveled by the public. There is a clear distinction, then, between the facts in the case at bar and the case just referred to.
In City of Lewiston v. Booth, supra, the ditch involved there was across E street, and at the time the ditch was constructed said E street was a county road, and it became the duty of those who owned said ditch to construct a bridge across it where it intersected said street or road. The decision no doubt would have been different had it appeared that the ditch was constructed prior to the laying out of the public road, or that the city had extended its limits and said ditch had become offensive and dangerous to the health and lives of the inhabitants of that city.
Thoge eases are not in point here.
From the foregoing we conclude that the court erred in entering judgment against the appellant for the cost of the construction of said bridge. Said judgment' must therefore be set aside, and it is so ordered, with costs in favor of the appellant.