City of Lewiston v. Booth
| Decision Date | 28 November 1893 |
| Citation | 34 P. 809,3 Idaho 692 |
| Parties | CITY OF LEWISTON v. BOOTH |
| Court | Idaho Supreme Court |
HIGHWAYS-OBSTRUCTION OF-NO RIGHT TO DESTROY THOROUGHFARE.-When a private person or corporation constructs a ditch or canal across a public highway, this gives them no right to destroy it as a thoroughfare; but they are bound both by the common law and the statute to restore or unite the highway at their own expense, by some reasonably safe and convenient means of passage, and keep the same in good repair. This obligation is the same whether the canal or ditch cuts the highway or street within or without the limits of a city or village.
SAME-DITCH CUT ACROSS HIGHWAY-NUISANCE.-A private party or corporation constructing a ditch or canal across a public highway or street in such way as to render the highway or street of a town or city unsafe or inconvenient for public travel, and maintaining such a ditch without a bridge or other safe and convenient way of crossing, would be guilty of maintaining a nuisance. (Idaho Rev. Stats., sec. 3620.)
SECTION 3630 OF THE REVISED STATUTES CONSTRUED.-No lapse of time can give a prescriptive right to maintain a nuisance. (Sec 3630.)
(Syllabus by the court.)
APPEAL from District Court, Nez Perces County.
Affirmed, with costs.
Eugene O'Neill, for Appellant.
This is an action by the city of Lewiston against the defendants, E A. H. Booth and B. Booth. Said city is a municipal corporation, having the powers given it by its charter. The defendants are the owners and operate a water ditch that flows through the present limits of said city. Plaintiff's contention is, that it has constructed a bridge across said ditch, at a point within the limits of said city, and that the defendants, as owners of the ditch are liable for, and must pay for, building the bridge. Plaintiff had no warrant or authority under its charter first, for charging the defendants for the construction of the bridge; and, second, for bringing any suit or action against the defendants. Plaintiff has and can exercise only such rights and authority as is conferred by its charter. (Cooley's Constitutional Limitations, *191, *192; Douglas v. Mayor and Common Council of the City of Placerville, 18 Cal. 648; City of Oakland v. Carpenter, 13 Cal. 546; Wallace v. San Jose, 29 Cal. 187, 188; Ex parte Frank, 52 Cal. 608, 28 Am. Rep. 642; Herzo v. San Francisco, 33 Cal. 143.) Acts authorized by section 7 of the charter are to be paid by taxes, regularly levied and regularly collected. (Charter, c. 10, sec. 7; 11th Sess. Laws, 386, 400 et seq.) And the provisions as to sidewalks, sections 7 and 8, requires published ordinances and sixty days thereafter before city has authority to do the work and secure a charge on adjoining land to be collected as other taxes are collected; not by suit. (Charter, secs. 7, 8; 11th Sess. Law, p. 386.) All acts beyond the scope of powers granted are void. (1 Dillon on Municipal Corporations, sec. 89; McCann v. Otoe Co., 9 Neb. 324, 2 N.W. 709, 710; Reis v. Graff, 51 Cal. 90; Donnelly v. Tillman, 47 Cal. 40; City of Napa v. Easterly, 61 Cal. 509.) Indictment or mandamus are the only proceedings that can be taken to enforce the construction in a highway of a bridge by a private individual. (Elliott on Roads and Streets, p. 30, 32, 33; 2 Dillon on Municipal Corporations, 4th ed., sec. 836; 2 Beach on Public Corporations, secs. 1560, 1577; State v. Minneapolis etc. Ry. Co., 39 Minn. 219, 39 N.W. 153; State v. St. Paul etc. Ry. Co., 35 Minn 131, 59 Am. Rep. 313, 28 N.W. 3; State v. Chicago etc. Ry. Co., 79 Wis. 259, 48 N.W. 243; Easton etc. Ry. Co. v. Easton, 133 Pa. St. 505, 19 Am. St. Rep. 658, 19 A. 486; Pauer v Albrecht, 72 Wis. 416, 39 N.W. 771; Newcastle v. Raney, 130 Pa. St. 546, 18 A. 1066; City of Oshkosh v. Milwaukee etc. Ry. Co., 74 Wis. 534, 17 Am. St. Rep. 175, 43 N.W. 489.)
James E. Babb, for Respondent.
The common-law rule is that where a person or corporation is given the right to build a railroad or make a canal across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense. .) The money sued for in this case is not a tax, for the recovery of which plaintiff is limited to statutory methods for collection of taxes. If a city sues for an injury to its property, for breach of contract, or to recover of one who is liable to it for damages, for which the city has been required to respond, it need not follow the procedure for raising a tax. Accordingly, it has been held that a claim of a municipal corporation against a citizen thereof for work done by the corporation, for which the citizen is liable, is not a tax. (Plaquemines Police Jury v. Mitchell, 31 La. Ann. 44.) No length of time will legalize a nuisance, for the very reason that while it continues a mere trifle, no one thinks of taking measures to have it removed, and thus the public would be sure to suffer. (Weld v. Hornby, 7 East, 199, 200; Folkes v. Chad, 3 Doug. 340, 343.) Section 3630 of the Revised Statutes of Idaho provides: "No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right."
This suit is brought by the plaintiff against the defendants to recover the sum of eighty-nine dollars and thirty cents alleged to have been expended by the plaintiff in building a bridge across E street, in said city, near the eastern boundary of the same, and at or near the residence of one S. C. Thompson, and on and over a water ditch belonging to and in the possession of the defendants. The facts, as found by the court, are as follows: That the city of Lewiston, in Nez Perces county, in the state of Idaho, is a municipal corporation. That in the year 1874 the plaintiff granted a franchise to the Lewiston Water Ditch and Milling Company to construct a water ditch across the streets of said city, by an ordinance duly passed by the city council, which said ordinance required said water ditch and milling company, as a condition of said permission, to construct good and sufficient crossings where said ditch crosses any of the streets or lanes of said city, and to keep the same in repair. That said water ditch was thereupon constructed by said company by virtue of said permission. That afterward the said ditch was sold and transferred by the then owners to the defendants herein, who are now, at the date of this action, the owners and in possession thereof. That at the time of the construction of said ditch the point of its crossing E street, where the bridge which is the subject of this action is, was not within the then limits of the city; but that said E street, where said bridge was erected, was then, and for a long time prior thereto, a county road, and in the control and under the direction of the supervisor of highways. That at the time said ditch was constructed a good and sufficient bridge was, by the predecessors in interest of these defendants, constructed across said street or road and along said ditch, and said bridge had been repaired from time to time by the owners of said water ditch in the succeeding years. That in the year 1881 the limits of the city were, by an act of the legislature of the state of Idaho, extended so as to bring the point of the crossing of the ditch on E street within the city limits. That on or about January 5, 1891, the bridge at said crossing was out of repair, and unsafe for travel. That the city council of said city ordered that a bridge should be built at said point over said ditch the full width of the street. That by direction of said city council the defendants were notified, both in writing and verbally, by the street commissioner of the said city, to rebuild said bridge, as above specified, the full width of the street. That said defendants, after having had a sufficient time, neglected and refused to build the said bridge, whereupon the bridge was constructed by the city of Lewiston, under direction of said commissioner, at a cost of eighty-nine dollars and thirty cents. It appears also that the main travel into the city from the easterly part of the town and from the country adjoining is over this bridge. That the old bridge was but twenty feet wide, and that forty feet of the road was open ditch, and for this reason it was inconvenient for teams to pass this point. That the defendants were notified of the amount expended in rebuilding said bridge, and were requested to repay the same, which they neglected and refused to do. Upon this claim suit was brought in the probate court of Nez Perces county, and transferred to the district court of said county, whereupon a trial was had in said district court before the judge thereof, a jury having been waived, which resulted in a judgment in favor of the plaintiff and against the defendants, E. A. H. Booth and B. Booth, for eighty-nine dollars and thirty cents, and costs incurred in the action, amounting to twenty-six dollars and forty-five cents. Judgment placed on file July 16, 1892. From this judgment an appeal was taken on the twenty-second day of July, 1892. That thereafter, on the fifteenth day of March, 1893, a statement on motion for new trial was settled and approved by the district judge, and thereupon a motion for new trial was...
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