Boise City v. Boise City Canal Co.

• Decision Date: 20 April 1911
• Citation: 115 P. 505,19 Idaho 717
• Parties: BOISE CITY, a Municipal Corporation, Respondent, v. BOISE CITY CANAL CO., Appellant
• Court: Idaho Supreme Court

115 P. 505

19 Idaho 717

BOISE CITY, a Municipal Corporation, Respondent, v. BOISE CITY CANAL CO., Appellant

Supreme Court of Idaho

April 20, 1911

Syllabus by the Court.

Where a canal was constructed over the public domain and through what is now the site of Boise City, prior to the issuance by the government of a patent for the town site of Boise City and the canal was being operated and maintained through the town site at the time and prior to the issuance of patent from the government, held, that the city has no power or authority to compel the owner of the canal to build bridges across such canal, where streets have been extended across the canal subsequent to the building of the canal.

Where a canal has been constructed and operated in accordance with law, it is not a nuisance, and can only become a nuisance by reason of the manner in which it is maintained, or the method of its operation; and the mere fact that a municipality subsequently extends a street across a canal which has been lawfully constructed and operated does not convert the canal into a nuisance at the place where the street crosses the canal.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover the cost of constructing a bridge. Judgment for plaintiff and defendant appealed. Reversed.

Judgment of the district court reversed, with costs to the appellant. Case remanded, with direction.

A. A Fraser and J. L. Niday, for Appellant.

Where a ditch company has possession of a right of way and constructs a ditch thereon prior to the time that the highway crossing the same has been laid out and dedicated to the public, it cannot be compelled to construct at its own expense and keep in repair bridges across said ditch or canal which may be necessary for the public travel. (Broder v. Natoma Water & Mining Co., 101 U.S. 274, 25 L.Ed. 790; City of Denver v. Denver & S. F. R. R. Co., 17 Colo. 583, 31 P 338; Perley v. Chandler, 6 Mass. 453, 4 Am. Dec. 159; City of Lowell v. Props. of Locks and Canals, 48 Mass. 1; Tynon v. Despain, 22 Colo. 240, 43 P. 1039; City of Denver v. Mullen, 7 Colo. 345, 3 P. 693; City of Oswego v. Oswego Canal Co., 6 N.Y. 257; Town of Providence v. Dyerville Mfg. Co., 13 R. I. 45; Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515; Morris Canal & Banking Co. v. State, 24 N.J.L. 62; Hutton v. City of Camden, 39 N.J.L. 122, 23 Am. Rep. 203.)

As a matter of law, it has already been decided by the supreme court of this state that the ditch in question was not a public nuisance within the statute. (McCammelly v. Pioneer Irr. Dist., 17 Idaho 415, 105 P. 1076.)

Frank B. Kinyon, for Respondent.

All of the questions involved in this case were before this court in the case of Boise City v. Boise Rapid Transit Co., 6 Idaho 779, 59 P. 716. In that case this court held that, "The city having extended its limits and platted its streets across said ditch, the owner thereof must bridge the same at his own expense, whenever such ditch obstructs the free passage or use of such streets. If it fails to do so, the ditch becomes a public nuisance, and it may be bridged by the city at the expense of the owner."

It is not necessary that the word "nuisance" should be found in the complaint if the facts alleged and proven show it to be a nuisance, as we contend they do.

BRYAN, District Judge. Ailshie, Presiding J., and Sullivan, J., concur.

OPINION

BRYAN, District Judge.

This is an action brought by Boise City, a municipal corporation organized and existing by virtue of the laws of the state of Idaho, against the Boise City Canal Co., a corporation, in which the plaintiff seeks to recover from the defendant the sum of $ 27.50, the same being the amount expended by the plaintiff in the construction and repair of certain bridges across the canal of defendant and within the corporate limits of the city of Boise. The action was begun in the justice's court of Boise precinct and thereafter appealed to the district court of the third judicial district. The trial in the district court was upon an agreed statement of facts as follows:

"1. That the said defendant now is and has been during all the time since the day of in the year 1867 a corporation, and has been, together with its successors in interest, during all of the time since said date the owner of, in the possession of and operating and controlling the canal mentioned in plaintiff's complaint herein. That the water running through said canal is distributed to divers and different persons for the purpose of irrigating city lots in Boise City, Idaho, and farm lands adjacent to said Boise City;

"2. That during the year 1864 said canal was constructed as far as the Natatorium east of said Boise City; that the said canal was constructed through Boise City in the spring of 1865, and has during all the times since the construction thereof, been operated in its present course by running water through the same; that patent to the lands over which said ditch runs was issued to the mayor of Boise City May 2, 1870;

"3. That on the 11th day of January, 1866, the plaintiff, Boise City, was duly incorporated as municipal corporation, and that at the time of said incorporation of plaintiff, the said streets referred to at paragraphs of plaintiff's complaint were laid out as streets and public highways, and that none of them were so laid out until the 25th day of November, 1867, when a plat of the said Boise City was filed, embracing all streets from 1 to 16 thereof, both inclusive, and that subsequently, to wit, on the day of , 18 , the remaining streets, to wit, 17th and Franklin, were laid out as streets and public highways, and that all of said streets, after their respective dates herein set forth, have ever since said dates been used by the public as streets and public highways of said Boise, and that said streets above mentioned are situated within the corporate limits of said Boise City; and that each and all of said streets were laid out subsequent in point of time to the construction of said canal, that is to say, that said streets were opened across the said canal, and not that the said canal was constructed across said streets; that the canal of said defendant at the point mentioned in plaintiff's complaint herein, to wit, 17th and Franklin, 15th and State, Idaho between 12th and 13th, and the alley between 11th and 12th and between Idaho and Main, is crossed by said streets and alleys.

"4. That on the 7th day of March, 1908, certain bridges over and across said canal where said canal is crossed by the streets and alleys of Boise City at the points named in paragraph 3 hereof, became and were out of repair and dangerous and wholly unsafe and insufficient for public travel."

The stipulation further asserts that on March 7th the defendant was duly served by the plaintiff with notice to improve and repair the bridges above mentioned. From a judgment in favor of the plaintiff and an order overruling a motion for a new trial, an appeal has been taken to this court.

Counsel for appellant make the following specifications of error: "First, the court erred in deciding upon the agreed facts in this case that the plaintiff was entitled to judgment for the amount claimed, together with its costs of suit; second, the decision of the court is against law; third, the court erred in not ordering judgment for the defendant."

Sec. 724 of chapter 3 of the Revised Ordinances of the City of Boise, as amended by Ordinance No. 786, reads as follows: "It is hereby made the duty of any person or persons, firm or corporation, that now or who shall hereafter run any water for irrigation or for any other purpose across any of the streets or alleys within the incorporated limits of the city of Boise, Idaho, to construct and keep in repair a good and substantial culvert or bridge of sufficient capacity for carrying all water so run, and to cover such culvert or bridge the entire distance where the same crosses said streets or alleys."

The agreed statement of facts on which the cause was tried in the district court shows that each and all of the streets upon which it is sought to require the defendant to construct and maintain bridges across its canal were laid out subsequent in point of time to the construction of the said canal. The question, therefore, to be determined is whether the defendant company, which acted within its lawful rights in constructing and operating its canal across the land in controversy prior to the incorporation of the plaintiff municipality and long prior to the issuance of patent to the land to the mayor of the plaintiff corporation by the United States government, can now be compelled by an ordinance of the plaintiff city to build and maintain bridges over and across its canal where the streets of the said city cross the same.

A case almost identical with the one at bar is the Morris Canal & Banking Co. v. State, 24 N.J.L. 62. In that case, the court say: "The right of laying out the road across the canal being conceded, it remains to inquire whether the canal company is bound...