98 Neb. 239 | Neb. | 1915
Relator is the owner of land in the south half of section 18, township 22, range 53, in Scott’s Bluff county, which land is traversed by the irrigation canal of respondent. About 120 acres lie north and about 26 acres south of the canal. Relator brought this action in the district court for Scott’s Bluff county to compel respondent to construct a bridge across the canal so as to connect the two tracts of land. From a judgment denying a writ and dismissing-his action, he appeals.
The action is based on the provisions of section 3438,. Rev. St. 1913, viz.: “Any person, company, corporation, or association constructing a ditch or canal through the lands of any person, company, or corporation having no interest in said ditch or canal shall build such ditch or canal in a substantial manner so as to prevent damage to such land; in all cases where necessary for the free and convenient use of lands on both sides of the ditch or canal by the owner or owners of such lands, the owner or those in control of such ditch shall erect substantial and convenient bridges across such canal or ditch, and they shall erect and keep in order suitable gates at the point of entrance and exit of such ditch through any inclosed field.” The case turns upon the construction to be given to the words
This question is fully and very ably discussed in Quantock v. Missouri, K. & T. R. Co., 117 Mo. App. 469, where, in construing the section of the Missouri statute providing for farm crossings by railroads, it is held that the statute “was not intended to apply only to farms which the road divided by its original construction, but should apply where farming lands on both sides of the road are afterwards owned by a single proprietor.” This decision was by the Kansas City court of appeals and being in conflict with a construction of the same statute by the St. Louis court of appeals in Stumpe v. Missouri P. R. Co., 61 Mo. App. 357, the case was transferred to the supreme court for final determination. That court, in 197 Mo. 93, expressly disapproved the holding of the St. Louis court of appeals, and affirmed the holding of the Kansas City court. The syllabus reads: “The statute, requiring a railroad which cuts a farm in two to construct a crossing for the benefit of the
Franklin County v. Wilt & Polly, 87 Neb. 132, strongly relied upon by respondent, does not sustain its contention'. In that case the county sought to compel the respondents, who were the owners of a private mill, to construct a bridge over their mill race at a point on their private grounds where it was intersected by a public road laid out seven years after the construction of the mill race. That such a case is clearly distinguishable from the one at bar is shown by the language of Judge Root, as follows (p. 134) : “There is nothing in the record to indicate that the mill to which the raceway is appurtenant is a toll mill, that any right exercised in operating it was acquired by the exercise of the right of eminent domain, or that the respondents’ business is affected in any manner with a public interest.”
It is next urged that, if the statute under consideration applies to a case like the one at bar, it is unconstitutional, for the reason that it is class legislation in that it does not apply to all waterways, but only to irrigation ditches, and State v. Farmers & Merchants Irrigation Co., 59 Neb. 1, is cited in support of the contention. We think counsel are in error. The cited case holds that section 58, art. II, ch. 93a, Comp. St. 1897, is void, but also holds that the section is not so intimately connected with the remainder of the act as to be incapable of separation from it, and
It is next said that the section under consideration is void, for the reason that respondent is given no compensation for the taking of its property for the purpose of a bridge, and that it would take the property of respondent for private purposes. The answer to this contention is that the burden thus imposed upon a ditch company constitutes a part of the consideration for the valuable right of eminent domain given it by the statute. Without such right it could not build its ditch through a man’s farm. Having accepted the right to build, regardless of the wish of the landowner, it must take that right burdened with the conditions imposed by the legislature. The question of the weight of the burden is one for the consideration of that body, and not for the court.
The judgment of the district court is reversed and the cause remanded, with directions to grant a peremptory writ of mandamus, as prayed in relator’s petition.
Reversed!