Casey v. Tama County

37 N.W. 138, 75 Iowa 655, 1888 Iowa Sup. LEXIS 424

• Court: Supreme Court of Iowa
• Decided: March 10, 1888
• Status: Published

Opinion

Robinson, J.

1. Bridges: what is county bridge: two bridges connected by grade: question for jury. — I. The first question raised for our consideration is the liability of a county for a structure of the length and character of that in controversy. The evidence tends to show that it was built by defendant in 1874 over * a)1 arm or bayou of Big creek. It rested on stone abutments, and was not less than thirty-six, nor more than forty, feet in length. Some twenty feet south of this, and in the same line of road, was the north end of a bridge-span over the main stream. This was fifty feet long, and also rested on stone abutments. The span between the two spans was filled up to their level with stones and earth to a height, in places, of eight or ten feet. The two spans and connecting grade formed a means of crossing Big creek on the line of the road used as a public highway. The evidence tends to show that defendant built the structure over the main stream about the year 1870, and replaced it with another in 1888 ; that it built the structxire over the bayou in 1874, and in 1879 placed piling under each end of the span ; that defendant has at all times since 1870 assumed the duty of maintaining these structures. The cost of the longer one was about nine hundred dollars, and of the other about five hundred dollars. On or about July 1,1884, the plaintiff, in crossing the stream with a team of horses and loaded wagon, drove onto the shorter span. It gave way, and plaintiff was precipitated to the water below, with his load and portions of the structure, resulting, as he alleges, in serious injuries to himself. One of the grounds of the motion to instruct the jury to return a verdict for the defendant is as follows: “The evidence shows, withoxxt controversy, that the bridge in question was less than forty feet in length, and was not a county bridge.” The motion was sustained as to this, as well as to all other grounds. It is contended by plaintiff that the structure which fell, if not constituting a county bridge of itself, was at least a part of such a bridge, and hence that the district court erred in sustaining the motion on the ground named. The court below must have found that, as a matter of law, no bridge not exceeding forty feet in length can be a county bridge, ■ and that the structxire in question was neither a county bridge nor any part of one. In this we think there was error. We have held that a so-called approach might properly be considered a part of the bridge to the proper use of which it was essential. Moreland v. Mitchell County, 40 Iowa, 397; Albee v. Floyd County, 46 Iowa, 178. In this case it appears that the span over the bayou was on substantially the same level as that over the main stream ; that it was necessary to allow a free and proper flow in time of high water; that it was made much like the main span ; that each was designed for use in connection with the other; and that neither could have been used without the other. They were joined together as a continuous whole, and, as such, formed a single passage-way over the stream. We do not think it can be said, as a conclusion of law, that their separation by a few feet of earth made them independent of each other; on the contrary, the jury might have found that all together formed but a single bridge. This was a question of fact, and not of law, and should have been submitted to the jury for their determination.

2. _: _: limit of forty feet. II. But in case the jury should find that the structure in controversy was complete in itself, and not more than forty feet in length, could it be considered a county bridge in that event, under the facts which the evidence tends to prove 1 Defendant contends that this question must be answered in the negative, and relies upon section 527 of the Code in support of its position. The portion of that section material to the present inquiry is as follows: “The city council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair, and free from nuisances. All public bridges exceeding forty feet in length, over any stream crossing a state or county highway, shall be constructed and kept in repair by the county.” Then follows a clause permitting the city council to appropriate money to aid in the construction of county bridges within the limits of the city, and in certain other cases. It is the contention of plaintiff that the provision quoted applies only to bridges within the limits of incorporated cities, and that county bridges without such limits may be less than forty feet in length. It is not claimed that the structure in question is within the limits of any city. It is true that section 527 is found in that part of the Code which relates specially to cities; but the Code should be treated as an entirety, and its . various provisions construed together. Hunt v. Farmers' Ins. Co., 67 Iowa, 742. There is no limitation on the natural effect of the language used. It applies to “all public bridges * * * over any stream crossing any state or county highway.” Roby v. Appanoose County, 63 Iowa, 113. It seems designed to fix the liability of counties for all public bridges exceeding forty feet in length, on the highways named, but it does not seem to us to have any application to bridges not exceeding that length. As to such bridges, the law remains unchanged from what it was prior to the enactment of chapter 179, Acts Thirteenth General Assembly. Roby v. Appanoose County, supra, is not in conflict with this view. Section 303 of the Code requires the boárd of supervisors of each county “ to provide for the erection of all bridges which may be necessary, and which the public convenience may require, within their respective counties, and to keep the same in repair.” Section 990 of the Code is as follows : “ When notified in writing that any bridge, or any portion of the public highway, is unsafe, the supervisor shall be liable for all damages resulting from the unsafe or impassable condition of the highway or bridge, after allowing a reasonable time for repairing the same ; and if there is, in the district, any bridge erected or maintained by the county, then and in that event he shall, on such notice of the unsafe condition of such bridge, as soon as he reasonably can, obstruct passage on such bridge, and use strict diligence in notifying at least one member of the board of supervisors of his county in writing of the unsafe condition of such bridge; and, if he fails so to obstruct and notify, he shall be liable for all damages growing out of the unsafe condition of such bridge, occurring between the time he is so notified and such time as he neglects in obstructing such passage; * * * provided that nothing herein contained shall be construed to relieve the county from liability for the defects of such bridge.” This section requires the road supervisor to put in proper condition, after notification, all bridges which he is required to build and repair, and to obstruct the passage over other public bridges, and notify the proper officer of their condition. But what bridges is the road supervisor required to build ? Manifestly, only such as can be built from the limited amount of funds at his disposal. Code, sec. .994. It is the settled law of this state that county bridges are such as require for their erection an extraordinary expenditure of money, “ such bridges as cannot be constructed with the limited means under the control of the respective road-districts of tbe county, or such as have been constructed by the county.” Chandler v. Fremont County, 42 Iowa, 58, and cases therein cited. The structure in question was not less than thirty-six feet in length, and rested on stone abutments. It was not only built by the county, but its cost was such that it could not have been constructed from the amount of funds within the control of the supervisor of the ordinary road-district. If, therefore, the county is not liable for the building and repairing of bridges of this class, no responsibility for them is vested in any public officer or corporation. We cannot think that such was the intent of the general assembly. It is contrary to the policy of the state, and against public interest. We think the better construction of the provision of law in question is that it fixes absolutely the liability of counties for public bridges, over streams crossing state and coiinty highways, which exceed forty feet in length, and that liability for constructing and maintaining bridges forty feet or less in length is not affected by this provision, but depends upon the necessity and importance to the public of each bridge, its character and cost, and the financial ability of the road-district in which it is located to construct and maintain it.

3. _: _: whether on public highway: question for jury. III. It appears from the evidence that the bridge in question was not located within the territorial limits of defendant, but was built a short distance i'rom the county line,. and wholly within Benton county. The evidence tends to show that this was done to secure a better bridge-site, and one which would require a shorter bridge than would be necessary on the county line. The traveled road in which the bridge was built was on the county line, both north and south of the bridge, and left it only at the crossing of the stream. Evidence was offered tending to show attempts on the part of the proper officials of Tama and Benton counties to establish a highway along the county line at the crossing of the stream, and for some distance north and south of it; but it may be conceded, for the purposes of this case, that such establishment was not shown to have been officially made. The evidence tends to show that this road, including the crossing at the bridge, had been used by the public, and worked by the road supervisors, and improved by defendant, as a public highway for twenty years. During most of that time the land at the bridge, and on each side of it, had been fenced, leaving for a highway the road as traveled by the public, and improved by public officials. It is contended by defendant that it is not liable in this action, for the reason that the bridge was not on a public highway. But a highway may be established by the dedication of land for that purpose by the owner, and its acceptance by the public. State v. Kansas City, St. J. & C. B. Ry. Co., 45 Iowa, 142; Onstott v. Murray, 22 Iowa, 469; Wilson v. Sexon, 27 Iowa, 16; Manderschid v. City of Dubuque, 29 Iowa, 78; Quinton v. Burton, 61 Iowa, 473. It was proper for the jury to determine, from the evidence adduced, whether or not the road in question was a public highway.

4. _: _: location outside of county: questio IV. The last point we need to consider is the claim of appellee that it had no authority to construct or repair the bridge because it was wholly within Benton county. Chapter 40, Acts Seventeenth General Assembly, authorizes the construction of county bridges on county-line roads, wholly within one of the two counties interested, where a suitable site cannot be obtained on the county line. Defendant rebuilt the span over the main stream, and put piling under the other, after this law went into effect. Under the facts, which the evidence tends to establish, we do not think defendant can escape liability because of the location of the structure within Benton county.

Reversed.