Board of Commissioners of Owen County v. Washington Township
| Decision Date | 08 January 1890 |
| Docket Number | 15,218 |
| Citation | 23 N.E. 257,121 Ind. 379 |
| Parties | The Board of Commissioners of Owen County v. Washington Township |
| Court | Indiana Supreme Court |
From the Owen Circuit Court.
Judgment affirmed.
W Hickam, for appellant.
E. C Steele, for appellee.
The question in this case is whether the township can be compelled to pay part of the expense of maintaining a public bridge, or whether the whole expense must be borne by the county. The bridge concerning which the contest is waged is connected with a free gravel road constructed by the county and the north end of it connects directly with one of the public streets of the town of Spencer, but it is wholly outside of the corporate limits of the town. The bridge was constructed by the county.
It is quite clear that the bridge can not be regarded as a bridge belonging to the town of Spencer. The county and the town are both governmental instrumentalities, but they are not invested with the government of the same locality or of the same affairs, for in so far as concerns the affairs of the town, the authority of the town officers is exclusive, and in so far as strictly county affairs are concerned, the authority of the county officers is exclusive. The familiar rule, that the express mention of one thing implies the exclusion of others, leads to the conclusion that where a statute vests one local subdivision with control it excludes the others. It is also quite apparent that the Legislature can not be presumed to intend that two different governmental organizations shall have control over the same bridge or highway and be responsible for its safety. The town is excluded from control of the bridge here involved, because the right of control is vested in the county. A town may, doubtless, become charged with the duty of maintaining a bridge built by the county, but it is charged with this duty only when the bridge becomes the bridge of the town, for, so long as it remains the bridge of the county the duty of maintaining it rests on that governmental corporation. This is the effect of the decision in the case of City of Goshen v. Myers, 119 Ind. 196, 21 N.E. 657. That decision proceeds upon the theory that the bridge there mentioned became the bridge of the city by adoption as part of one of the city streets, and it is only on that theory that the decision can be vindicated. A city or town can not control county bridges or highways, for their control is committed to the county authorities, nor, on the other hand, can county authorities control city bridges or streets. Where there is no power to control there is no responsibility for a failure to repair, since the duty and its breach must concur to produce a right of action. Common Council, etc., v. McClure, 2 Ind. 148; Bishop v. City of Centralia, 49 Wis. 669, 6 N.W. 353; Carpenter v. City of Cohoes, 81 N.Y. 21 (37 Am. Rep. 468). It is apparent from what we have said that the fact that the bridge leads up to and joins a street at the corporate line of the town does not make it a town bridge in such a sense, at least, as to relieve the county from the general duty of using reasonable care to keep it in a reasonably safe condition for passage.
It is an ancient and firmly established rule that a bridge may become a county bridge by adoption, no matter by whom it was built. State, ex rel., v. Board, 80 Ind. 478.
The common-law rule is, that the county officers are bound to adopt and maintain a public bridge, forming part of a road, or else have it declared a nuisance. Under this rule the bridge in question must be regarded as a county bridge, which it is the duty of the county to maintain.
It is held by a long line of decisions that a county is bound to use reasonable care to keep its bridges in a safe condition for travel. House v. Board, etc., 60 Ind 580; Harris v. Board, etc., ante, p. 299, and cases cited. It is also decided that a township is not liable for an injury sustained...
To continue reading
Request your trial
-
Millis v. Roof
... ... in Henry county, leaving a widow and eleven children, who ... ...
- Bd. of Comm'rs v. Washington Tp.
- Millis v. Roof