City of Flemingsburg v. Fleming County

105 S.W. 133, 127 Ky. 120, 1907 Ky. LEXIS 121

• Court: Court of Appeals of Kentucky
• Decided: November 14, 1907
• Status: Published

Opinions

Opinion of the Court by

Judge Carroll

Reversing.

Flemingsburg, a city of tbe fifth class, has- a population of about 1,100, and is situated on a creek that runs entirely through the city. Crossing this creek on a bridge within the city limits is one of the principal highways of the county, which is also used as a street of the city. It does not appear in the record whether this bridge was. originally erected by the county or city or a turnpike company; but for the past 15 years the city has been exercising control over it and keeping it in repair. In 1905 the bridge became unsafe and dangerous for public travel, rendering it necessary to erect a new structure. Conceiving that it was the duty of the fiscal court to rebuild or erect a new one, the city council demanded that the fiscal court do this work. The court declined to do so, upon the ground that, as the bridge was entirely within the city limits, it was the duty of the city to repair or rebuild it. Thereupon the city did erect a new bridge that cost, as is averred, $3,065, and sought in this action to recover from the county of Fleming this sum. A demurrer was sustained to the petition, as well as to an amended petition, and, declining to further amend, the city prosecutes this appeal.

In considering the question involved, we must accept as true the averments of the petition, which are in part: “That one of the principal highways and thoroughfares of Fleming county runs from the southeastern boundary to the northeastern boundary of said county and passes through the corporate limits of said city of Flemingsburg and over the town branch by means of a bridge, which bridge is within the city limits; that on the south side of said bridge, about 100 feet from said bridge and on this highway, is situated the railroad depot and also the public graded school, and on the northeastern side of said branch and on said thoroughfare, .and within 250 yards of said bridge, are situated the public buildings of Fleming county, composed of the courthouse, clerks’ offices, and the jail; that it is necessary for persons residing in the southern and eastern portion of said county to cross by means of this bridge in order to attend court and visit the public buildings of the county, and it is also necessary for persons residing on the north and east side of the said town branch and bridge to cross the bridge in order to reach the railroad depot and public school.” It was further averred that the price paid for the construction of the bridge was reasonable, and that it was of such a size and kind as was required to accommodate the general traveling public. This court has had occasion to consider questions somewhat similar to the one here presented, the latest being that of Nelson Co. v. City of Bardstown, 124 Ky. 636, 99 S. W. 940, 30 Ky. Law Rep. 870, where the bridge in controversy was situated at the boundary line of the city on one of the leading thoroughfares of the county; and this court there said: “The bridge in question is on a thoroughfare traveled by a large portion of the inhabitants of the county in reaching the county seat and the railroad station. It is essentially a county bridge, and indispensable for the use of the county, and is such a structuie that the fiscal court should maintain. It is entirely outside of the settled portion of the city. It is not necessary for city purposes. It is only nominally to any extent within its boundary, and, under the principles of the opinion cited, should be maintained by the fiscal court. It is incumbent on the fiscal court to build such bridges in the county as the county requires; and the citizens of the town will not be required to build a bridge for the county, thorigh it may be located within the town. The entire burden of building and maintaining a bridge on a county highway, though wholly within the boundaries of a town, has been placed on the county, where, from the size of the town, the character of the bridge, the travel over it, and other circumstances, this was just and right. But ordinarily, where a bridge is within a city, and is necessary for the city travel as well as the traveling public of the county, as between the public and them, the burden rests on both the city and county, and should be apportioned between them in the proportion that the travel over the bridge within the city bears to the travel over it or from the county outside the city. If they cannot agree upon it, then either may rebuild or repair the bridge when necessary and recover from the other its proportion of the cost. . Culverts or such small bridges as are essentially a part of the street should -be built and maintained by the city; but bridges which span streams and are not fairly a part of the street rest on a different ground, when • they are for the common benefit of the people of the city and the people of the county outside of the city.” The only' difference between tbe facts of that case and the one at bar are that there the bridge was on the boundary line of the city, while here it is entirely within the city limits. And in the course of the opinion the court unqualifiedly holds that in certain cases it would be proper to require the county to construct or to aid in the construction of a bridge, although it might be entirely within the city limits. This doctrine was expressly declared in Leslie County v. Wooten, 115 Ky. 850, 75 S. W. 208, 25 Ky. Law Rep. 217, in which it was held that the fiscal court might be compelled by mandamus to erect a bridge located within the corporate limits and upon one of the public highways of the county.

The real question is: Is the bridge upon one of the thoroughfares or highways of the county, and is it necessary for the use of the people of 'the county in going to and from the public places and buildings within the county? If so, the county, in cities the size of Plemingsburg and smaller towns, should be required to bear its proportion of the expense of maintaining the bridge or erecting a new one. In large cities, where bridges are necessary more for the convenience óf the inhabitants of the city than the people of the county generally, and the cities by reason of the population and wealth are financially able to erect such bridges as may be required, the county will ordinarily not be compelled to erect or contribute to their erection; but it is a matter of common knowledge that in a large number of the smaller towns of the State the main streets are parts of the public highways of the county, and are used as much, if not more, by the people of the county than they are by the inhabitants of the city; and in such cases, where bridges are needed as parts of the public highways, the county should be required to erect or contribute to their erection. Whether the1 county should bear the whole or only a proportionate part thereof must be left to be determined by the facts and circumstances of each case. It is not practicable to lay down any hard and fast rule. Thus, in Leslie county v. Wooten, 115 Ky. 850, 75 S. W. 208, 25 Ky. Law Rep. 217, the county was required to bear all the expense of erecting a bridge upon a public highway and street within the corporate limits of the town of Hyden, upon the ground that the town was not financially able to erect a bridge, and that a bridge was necessary for the convenience of the traveling public of the county.

In this- connection, and throwing light upon the policy of the Legislature as to requiring the larger cities to erect and repair at their own expense bridges, it is worthy of some, but not controlling, notice that in the charters of cities of the first, second, third, and fourth classes provision is expressly made for the construction and repair of bridges (Ky. Stats. 1903, sections 2825, 3058, 3119, 3290); whereas, in the charters of cities of the fifth class and towns of the sixth class, the word “bridge” is not mentioned. It might therefore be inferred that the Legislature intended to impose on cities of the first, second, third, and fourth classes the duty of erecting and repairing bridges within the city limits; whilst the county might bé required in whole or in part to erect and repair bridges in cities of the fifth class and towns of the sixth class. It is true that in Town of Paintsville v. Com., 55 S. W. 915, 21 Ky. Law Rep. 1634, it was held that a town of the sixth class could be indicted and punished for failing and refusing to .keep in repair a bridge on a street of the town for an unreasonable length of time; but in that case the question was not made or determined as to the duty of the county to contribute in whole or in part towards the erection of a new bridge or the repair of an old one. Nor does the fact that a town of the sixth' class might be liable to indictment as for a nuisance in failing to provide for the repair of a bridge within the town limits, or made to respond in damages for injuries sustained by a traveler, conflict with the proposition that the town may require the county to erect or repair the structure complained of. As the town authorities could by taking proper action require the county to contribute in whole or in part as the facts might justify to the erection or repair of the structure, the town will be liable for negligence in this respect, as it would be for negligence in other matters connected with the streets and highways of the town. City of Chicago v. Powers, 42 Ill. 169, Am. Dec. 418.

The question involved in this case is of general importance, and the conclusion we have reached not free from difficulty. On the one hand, it is pressed with force that the fiscal court is charged by law with the conduct and management of the fiscal affairs of the county and the construction and repair of its highways and bridges, and that the discretion vested in it by the Legislature in matters of this character and others affecting the general welfare of the county ought not to be controlled or directed by boards of council or other municipal officers; that the cities and towns in the State are also corporations created by law, having the exclusive control of the streets and public places within the corporate limits ; that, as the fiscal court cannot interfere in' the governmental affairs of cities and towns, or direct the governing authorities what improvements they shall make or how to make them, neither should the legislative boards of these municipalities be permitted to dictate to the fiscal court the manner ini which it shall manage the affairs of the county. As an illustration of the evils that may result from permitting cities and towns to burden the county'with heavy or unnecessary taxes without the consent of the fiscal court, the case before us is effectively cited. Here the city of Flemingsburg has constructed an expensive bridge crossing a small creek.in the center of the town, and seeks to charge the whole cost of its construction upon the people of the county, although the agents whom the county has selected to govern its affairs had no voice in the erection of the bridge, or the amount that should be expended; and we are not unmindful of the danger attending a rule that might enable cities and towns to erect costly structures and charge the people of the county with the cost thereof.

On the other hand, it is urged that, although cities and towns are separate municipalities, invested with certain rights and powers, they are nevertheless a part of the county, the inhabitants being required to contribute'to all expenses incident to county affairs, includng the construction of highways and bridges', and in addition to this are burdened with the expense of maintaining the municipal -corporation in which they reside. Therefore it is said that when a structure such as a bridge, although situated within a town or city, is needed as much, if not more, for the use and benefit of the people of the county, than it is for the inhabitants of the city, and is located on one of the public highways of the county and the city, the county should be required to contribute its share of the expense of erecting or keeping it in repair, as it is a part of one of the highways of the county, the same as if located outside the town limits, and the fiscal court under the statute is charged with the duty of maintaining it. And this view has received the approval of this court in three cases in which the question has been presented. It is true that a bridge located in a street is a part of it, and'that it is the duty of cities and towns to provide for the construction and maintenance of their streets, and the county cannot be required to contribute anything to their, improvement; but it does not necessarily follow from this that the county is also exempt from repairing or, constructing a bridge which is a part of the street. Bridges do not fall in the same category as streets or roads. It is true that they are a part of the street or road; but a distincticin has always been made between bridges and other portions of the highway, and is recognized in every chapter and in almost every section of the Kentucky Statutes treating of highways. The words are not equivalent and do not mean the same thing. St. L., A. & T. R. v. People, 200 Ill. 365, 65 N. E. 715; State v. Canterbury, 28 N. H. 195.

Having well in mind the troublesome nature of the question before us, and the difficulty in laying down any rule that will be equitable and fair to the people and taxpayers of the city and county, yet our conclusion is- that the judgment of the lower court dismissing the petition was, erroneous, and that the county should be required to contribute its fair proportion towards the expense needful to be incurred in erecting such a bridge across this stream as might be safe and sufficient for public travel. What proportion of the cost of such a structure should be borne by the city and county we cannot on the record before us determine. This question must be decided by the lower court upon a rehearing of the case with all the facts; before it. A city or town will not- be permitted to erect a more expensive structure- than, is necessary for safe and convenient public travel, and charge the county with any part of the cost thereof over and above the- amount necessary to erect a safe and sufficient bridge. If the bridge erected by the city cost more than was necessary to erect a structure safe, sufficient, and convenient for public travel, the. city alone must bear the burden of this to the county’s unnecessary expense. The county will only be required to pay its fair proportion of the cost of such a bridge as is herein indicated. This proportion must be de-termned by the lower court upon due consideration of the population and Wealth of the county as compared with the population and wealth of the city, taken in connection with the proportion of travel over the bridge by the inhabitants of the city as compared with the travel over it by the people of the county.

Wherefore the judgment of the lower court is reversed, with directions to proceed in conformity with this opinion.