County of Dodge v. County of Saunders

97 N.W. 617, 70 Neb. 442, 1903 Neb. LEXIS 308

• Court: Nebraska Supreme Court
• Decided: December 2, 1903
• Docket: No. 12,367
• Status: Published

Opinions

Lobingier, 0.

This is an action by which Dodge county seeks to compel. Saunders county to pay one-half of the amount expended for repairs on a wagon bridge across tbe Platte river south of the city of Fremont. The petition alleges “that the Platte river intervenes between the said plaintiff and defendant counties and divides said counties;” that the bridge in question has been built for twenty-five years and generally used by a large portion of the inhabitants of both counties; “that the said plaintiff and said defendant, both, have been and are now equally interested in the building and the maintaining of said bridge and keeping the same in repair for public travel;” that in 1899, the bridge became unsafe for want of repair, and that the board of supervisors of Dodge county passed a resolution declaring that both said bridge and another at North Bend across the same river were out of repair and unsafe for public travel, and calling upon the board of commissioners of Saunders county to undertake such repairs, jointly, to fix a time and place for a meeting “and agree upon the amount and character of such repairs, and to provide for the advertisement for bids for such repairs.” The resolution further recited that, in case of refusal or failure of the defendant county to respond, “this board will proceed to advertise for bids for such repairs and have the same made, and will hold said Saunders county liable for one-half of the costs for said repairs, as provided by law.” It is alleged that a certified copy of this resolution was. served on the chairman of the Saunders county board; that said county failed and refused to cooperate Avith plaintiff, and that thereupon it entered into a contract “in the manner provided by law” for the repair of the bridge south of Fremont. A copy of the notice for bids, the contractor’s hid and specifications, and the written contract for the repair of the bridge in question are attached to the petition as exhibits. It is further alleged that the Avork Avas done according to contract; that plaintiff filed a bill with the defendant county’s clerk for its half of the expenses, which was disalloAA’-ed by its board of commissioners, and that plaintiff perfected an appeal to the district court. A general demurrer to this petition Avas sustained, and plaintiff, electing to stand thereon, brings the case here by petition in error.

Defendant in error contends that the averment, “that the Platte river intervenes between * * * and divides said counties,” is a mere conclusion of law and not admitted by the demurrer; that by reason of the statute (Compiled Statutes, ch. 17, art. 1, sec. 24; Annotated Statutes, 4329), which fixes “the south bank of the Platte river” as the southern boundary of Dodge county, no part of the 'river is in Saunders county; that, therefore, the latter was not liable for the repair of the bridge in question, and that, even if it were, since the resolution called for the repair of two bridges, and the contract was made for but one, there is such a departure and noncompliance with the law as to prevent a recovery, and that, therefore, the petition fails to state a cause of action.

Section 87, chapter 78, of the Compiled Statutes (Annotated Statutes, 6085), provides as follows:

“Bridges over streams which divide counties, and bridges over streams on roads on county lines, shall be built and repaired at the equal expense of such counties; Provided, That for the building and maintaining of bridges over streams near county lines, in which both are equally interested, the expense of building and maintaining any such bridges shall be borne equally by both counties.”

The allegation, that the contract for the repair of the bridge was entered into “in the manner provided by law,” coupled with the notice, bid and contract, itself and the resolution calling upon Saunders county to join in advertising for bids, appear to show a sufficient compliance with the statute requiring the contract to be let to the lowest bidder. At least, we think it should be held sufficient as against a general demurrer, and in the absence of a motion for a more specific statement. Numerous authorities are cited in the able argument of the defendant in error to the effect that, where the bank of a stream is fixed as the boundary of land, no part of the bed of water of the stream is included. We do not understand that Dodge county concedes to Saunders county any rights or jurisdiction over the hed or water of the Platte river.

When the legislature speaks of “streams which divide counties,” does it mean the whole stream? If so, there is, probably, no stream in the state to which the statute could apply. In fixing the boundaries of counties bordering on streams, the legislature has used the phrase, “the middle of the channel,” or “the south bank.” In no case has it fixed the entire stream as a boundary line between counties. Indeed, a moment’s reflection will demonstrate that it could not safely have done so. For, if the entire stream were made the boundary, there would be left a neutral zone subject to the jurisdiction of no county. When, therefore, the legislature, after fixing these boundaries, in the language above noticed, refers to “streams which divide counties,” it must be understood as meaning streams in which are situated the boundary lines which divide counties. And this is the practical construction of the phrase, adopted by this court in Cass County v. Sarpy County, 63 Neb. 813. The statute (Compiled Statutes, ch. 17, art. 1, sec. 68; Annotated Statutes, 4379) fixes “the middle of the said main channel of said Platte river” as the south line of Sarpy county. Literally speaking, therefore, the Platte river, that is, the entire Platte river, does not “divide” the counties of Cass and Sarpy; it is only “the middle of the main channel” which divides them. Nevertheless, it was held, and we still think rightly, that section 87, above quoted, is applicable to these two counties, which are divided, not by the entire river, but only by an imaginary line in the river.

Such is also the construction placed upon a similar statute by another court of high standing. In Reiser v. Commissioners of Union County, 156 Pa. St. 315, a case which we shall have occasion to refer to again, the court so construed a statute which speaks of “a stream forming the boundary line between two counties,” and it is said in the opinion:

“A stream is equally the boundary whether the line is at its middle or its edge, and, on the other hand, a stream is equally between two counties whether it is all in one or half in each. Accurately speaking, as the learned judge below points out, there is no stream between counties, for that implies something interposed which is not part of either. But in the popular and ordinary use of language, which the legislature is presumed to intend, between two counties means having one on one side and another on the other, and that is exactly the meaning of forming the boundary line between counties.”

If we are correct, then, in our conclusion that the phrase, “streams which divide counties,” includes all streams which contain or in which áre situated the boundary lines between counties, we are next to inquire whether the Platte river contains the boundary line between Dodge and Saunders counties? Or, in other words, whether that boundary line can be said to be situated in the river? The statute, as we have seen, fixes the line as the south bank. Is the bank, then, no part of the river? Mr. Gould, in his authoritative work on Waters (3d ed.), sec. 41, says: “Every river consists of: (1) the bed; (2) the water; (3) the banks or shores.” Our attention is called to a distinction in some of the cases between “bank” and “shore,” but it does not seem material to our present inquiry. Mr. Justice Wayne, delivering the opinion in Alabama v. Georgia, 23 How. (U. S.) 505, determining the precise boundary between two states which are separated by a river, says, quoting from Grotius:

“A river that separates two jurisdictions is not to be considered barely as water, but as Avater confined in such and such banks, and running in such and such channel. Hence, there is water having a bank and a bed, over which the water flows, called its channel, meaning, by the word channel, the place where the river flows, including the whole breadth of the river.”

In Starr v. Child, 20 Wend. (N. Y) 149, Cowen, J., says:

“The hank and the water are correlative. You can not own one without touching the other.”

The word “watercourse” is synonymous with stream, and in Luther v. Winnisimmet Co., 9 Cush. (Mass.) 171, Bigelow, J., in a charge to the jury, afterwards approved on appeal, said:

. “A watercourse is a stream of water, usually flowing in a definite channel, having a hed and sides or banks.”

Indeed, it seems to us that the correct conclusion is well summarized in the argument for plaintiff in error in Howard v. Ingersoll, 13 How. (U. S.) 380, 391, as follows:

“A river, then, consists of water, a bed, and banks; these several parts constituting the river, the whole river. It is a compound idea; it can not exist without all its parts. Evaporate the water, and you have a dry hollow. If you could sink the bed, instead of a river you would have a fathomless gulf. Eemove the bank, and you have a boundless flood.”

We have not overlooked the cases where grants bounding on the bank are said to exclude the stream. The language thus used is invariably dicta, and is employed, incidentally, in discussing entirely different questions than whether the bank of a river is to be treated as a part of it. It seems, to us more logical, and more in accordance with approved legal definitions, to hold that the south bank of the Platte river is to be treated as a part of the river; that “streams which divide counties” include any part of or point in such streams, and that, therefore, the Platte river divides Dodge and Saunders counties, quite as much as if the boundary was the thread of the stream, the filum aqwee, instead of the south bank.

We are strengthened, then, in this conviction, when we consider, as we must, the intent and purpose of the legislature in enacting this statute. The purpose, evidently, was to provide for the building and repair of bridges required in order to travel from one county into an adjacent one, and to impose the expense equally upon both, on the theory that the bridge would be used about equally by the inhabitants of the two counties. It is apparent that, for this purpose, it is quite immaterial whether the boundary line is the thread of the stream or the bank. The bridge would be just as necessary in the one case as in the other, and there would be the same reason' for dividing the cost. With the policy of such legislation, we are not here concerned. It may be true, as suggested in the argument of defendant in error, that the bridge in question is not a benefit to part of the inhabitants of Saunders county; that it is even detrimental, in diverting trade into Dodge county, though the demurrer admits the averment in the petition that the bridge is “used by a large portion of the inhabitants of both counties.” It may also be true that the statute confers upon counties power in locating bridges which may be used, or rather abused, to the injury of neighboring counties. But, whether the policy of the act has proved beneficial, or otherwise, is a question for the legislature alone. Our duty is simply to ascertain its intent and permit it to be carried out, as far as possible. To hold that this case is not within the terms of the statute because the boundary is fixed at the south bank instead of the thread of the stream would, we think, be to disregard that intent. Dodge county is not the only one whose boundary is fixed at the south bank. Indeed, nearly one-third of the counties which border on streams flowing wholly within the state are so bounded. Can it be supposed that the legislature intended to exempt all of these from a policy which, on its face, appears to be uniform?

We prefer to think with the supreme court of Pennsylvania, in the case above referred to, that it is “the popular and ordinary use of language which the legislature is presumed to intend,” rather than to adopt a construction which would nullify the statute in so large a proportion of the cases to which it was apparently intended to apply. In Cass County v. Sarpy County, 63 Neb. 813, 823, it is said that “Cass and Sarpy counties are divided by the Platte river,” although we have seen that, technically speaking, they are divided only by the “middle of the main channel” of the river. So, “in the popular and ordinary use of language,” it may be said that the Platte river divides Dodge and Saunders counties, though the technical boundary line is the south bank of the river.

We have referred to Keiser v. Commissioners of Union County, 156 Pa. St. 315, and we close our discussion of this branch of the case with a further reference to it, because it seems to us so pertinent to the case at bar and so fully to support the foregoing views. It was an action to compel the commissioners of Union county to cooperate with the commissioners of Northumberland county in building a bridge across the Susquehanna river. The statute authorizes joint construction of bridges “where the stream or river runs between counties.” There would seem to be more room in the Pennsylvania case than here for the contention made by defendant in error, for Union county is described as “lying on the west side of the river Susquehanna,” thus indicating that it included no part of the river. And, yet, the court holds that the statute is applicable, and says also:

“A stream is equally the boundary line whether the line is its middle thread or its Avesternmost ripple. To find the boundary you must find the stream, and then the part of it defined as the line, but wherever that is it is the stream, and it is the boundary only because of that fact.' No matter whether the boundary is the middle or the edge of the stream, the bridge must connect Avith both banks, and the moment it does so, even if only with an abutment, there is no longer,any one county in Avhich it is located. * * * The obvious meaning of the statute * * * is that * * * bridges over streams forming boundary lines between counties, or running between counties (that is, having one county on one side and another county on the other side), shall be rebuilt by the commissioners of the ‘respective counties.’ ”

We find ourselves also unable to agree with the eminent counsel for defendant in error in his contention that there was a fatal departure in the fact that the resolution, calling upon Saunders county to join in making the repairs, designated two bridges, while the contract was let and recovery sought as to but one. The statute points out no particular mode of procedure, and we can not see that defendant in error aves in the least prejudiced by the course pursued. If Dodge county had been Avilling to accept one-fourth instead of one-half of the amount expended for the Fremont bridge, it would not be questioned, we presume, that only the taxpayers of Dodge county could complain. Moreover, had this been an ordinary action in the district-court, and had the claims for the íavo bridges been divisible, as Ave think they were, plaintiff could have sued on its claim for the one bridge alone. On the other hand, had the claims been indivisible, it could still have sued for a part, on condition of being barred from any further action as to the remainder. We can not think that any stricter rule should be applied in a proceeding of this kind than in an ordinary action at law.

Having reached the conclusion that the Platte river “divides” the tAVO counties appearing in this action, it is unnecessary to consider Avhether the other clauses of section 87, chapter 78, are also applicable, though that question is discussed in the briefs, and the petition avers, as Ave have seen, that both parties “are equally interested in the building and maintaining of said bridge.” From our examination of the first clause of section 87, we are compelled to conclude that the demurrer should have been overruled, and we recommend that the judgment be reversed and the cause remanded with directions that such an order be entered.

Hastings and Kirkpatrick, CC., concur.

By the Court:

For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings in accordance with said opinion.

Reversed.

1. Counties: Repairs of Bridges. Under the provisions of section 87, chapter 78, Compiled Statutes, 1901, a county may be required to contribute toward the repair of a bridge abutting in such county although it is located mainly within the territorial jurisdiction of an adjoining county. 2. Stream Defined. The word “stream” as used in said section is used in a general sense, and includes rivers and smaller courses of running water.