48 Kan. 620 | Kan. | 1892
The opinion of the court was delivered by
In a statute enacted in 1887, it was provided that —
“Any person who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained; and in other cases such recovery may be from the township, where the trustee of- such township shall have had like notice of such defect.” (Laws of 1887, ch. 237.)
An earlier provision of statute provides —
“That each road overseer, within his district, shall erect and keep up, at the expense of the township, posts or boards at the fords of every river or creek that in high water becomes impassable, which posts shall be set at, or near, low water-mark, on which shall be inscribed in legible letters, or plain figures, the depth of water at low water, together with a scale of feet showing the scale of feet above low water-mark to the height which said stream is known to have ever risen.” (Gen. Stat. of 1889, ¶ 5514.)
The plaintiff seeks to establish a liability against the township under the first provision, claiming that he sustained
The facts stated in the pleading of the plaintiff below do not constitute a cause of action against the township, and the demurrer of the township should have been sustained.
The judgment of the district court will be reversed, and the cause remanded, with directions to sustain the demurrer of the township and give judgment in its favor.