80 Ind. 478 | Ind. | 1881
— It was held in The State, ex rel., v. Demareer post, p. 519, that the statute imposes upon the county commissioners the duty of keeping public bridges in repair, and that mandamus will lie to compel the performance of that duty. This decision disposes of one of the principal questions in the case before us.
There are two questions presented in the case at bar which were not directly presented in the former. They are:
1st. Does the duty to repair extend to replacing or rebuilding, where there is a substantial destruction of the original bridge ?
2d. Is the county bound to repair in cases where the bridge is originally constructed by private individuals, but is after-wards connected with highways constructed by the county, and is used and recognized by the citizens and officers as a part of the public way ?
Of these in their order. .
First. The duty to repair includes the rebuilding of bridges, where they are essential to the existence and use of the highway. It is true, that the commissioners have authority, in certain cases, to vacate highways, but this authority must be exercised in the manner prescribed by law. The vacation of
It is established law that a county is liable for injuries received because of negligence in not making bridges safe for travel, and citizens who are compelled to bear the burden imposed by a judgment for damages ought, injustice, to be entitled to compel their officers and representatives to perform their duty, and make highways passable and safe. Unless the performance of this public duty can be coerced, it leaves the taxpayer too much at the mercy of negligent officers. If it is a duty, there ought to be a power somewhere to compel its performance. Better compel the commissioners to expend public money in making highways passable and safe, rather than suffer it to be frittered away in the payment of damages.
It is very clear that if there is a decay of the timbers of a bridge, rendering it impassable, the county may be compelled to repair. Upon this point the authorities are agreed. It is difficult, if not impossible, to perceive why the same principle should not apply where a bridge has been destroyed by fire or swept away by a flood. The reason, upon which the rule requiring repairs to be made rests, is the same whether
In Briggs v. Guilford, 8 Vt. 264, it was assumed, without debate, by court and counsel, that the duty to repair embraced the obligation to rebuild a bridge which had been carried away by a freshet. It was held in People v. City of Brooklyn, 21 Barb. 484, that a statute providing for repairs of a street embraced the act of substituting new curbstones for old ones. The definition of Walker, that repair means " reparation, supply of loss, restoration after dilapidation,” is approved. The case of People v. Hillsdale, etc., Co., 23 Wend. 254, decides that a statute requiring a turnpike company to make repairs imposed upon it the duty of rebuilding a bridge which had been destroyed by an inevitable accident. In the case decided by Lord Kenyon, Brecknock, etc., Co. v. Pritchard, 6 T. R. 750, it was held that a covenant in a contract, binding a party to keep a bridge in repair, imposed upon him an obligation to replace it, although it was totally destroyed by a flood. More directly in point than any of the cases cited is that of Howe v. The Commissioners, etc., 47 Pa. St. 361. The court there said: “ If we should construe the word 'repair’ in this act as strictly as the court below did, nay, if we should set aside the act altogether, the duty of maintaining the bridge, once legally imposed upon the county, and never taken off, would still have to be enforced. But we can not so read the act as to exclude
In giving to the word repairs the meaning of restoring or rebuilding, no new legal signification is annexed. From the earliest times of the common law to the present the word has been deemed to embrace rebuilding. This is proved by the long line of cases declaring that where a tenant covenants to repair he is bound to rebuild, even though the demised premises are totally destroyed. Nor in doing this is any violence done to language. The lexicographers give as a synonym of repair, “to restore,” and, surely, to put a new bridge in the place of one destroyed is, in effect, nothing more than a restoration.
We come now to the second question. In a very old case referred to by counsel in Rex v. West Riding, 5 Burr. 2594, it was said, “ That if a private person build a bridge which afterwards becomes a public convenience, the county is bound to repair it.” In the case in which this citation was made in argument it was held, that, although the bridge was not erected by the Riding, yet, if it was a public convenience, and adopted and used by the Riding, it was bound to repair. The reporter says: “ The court were all clear, that the Riding was obliged to repair the new bridge.” Justice Willes said: “ The county have had the advantage of it” (the bridge) “above twenty years: and they ought to repair it.” Justice Blackstone, concurring, remarked: “ Here, the benefit and utility were to the public: it was constantly used by every one who went that road.” The report also states: “ Lord Mansfield (who came into court during the discussion of this case), declared himself likewise to be clearly of the same opinion. The Riding
The general doctrine upon the subject is thus stated in The State v. The Town of Campton, 2 N. H. 513: “ Though the use and repairs of it” (the bridge) “may have been under a protest against their liability, and for a shorter period than twenty years, the liability is still fixed, if the bridge be not indicted as a nuisance and be used by the public so long and so much as to evince its usefulness to them.” Another court thus states the doctrine: “ The purport of a number of authorities appears to be, that any person may erect a bridge over a stream crossing a public highway, if it be of public utility. If it be built in a slight and incommodious manner, it may be treated as a nuisance. If not so treated as a nuisance, and it be really for the use and benefit of the public, then the charge of its repair is thrown on the county.” Bisher v. Richards, 9 Ohio St. 495. In Requa v. City of Rochester, 45 N. Y. 129, the court used this language: “ So the bridge, whether originally placed there by the corporate authority or by one volunteering to do that which that authority ought to have done, became the property of the city. In the first instance, plainly
The second question stated must be answered in the affirmative. A county may, by adoption, make public a bridge constructed by private individuals, and, when it is thus made public, becomes bound to keep it in repair.
The court below erred in sustaining the demurrer, to appellant’s complaint, and the judgment must be reversed.