Davis v. Ada County

• Decision Date: 12 December 1896
• Citation: 5 Idaho 126,47 P. 93
• Parties: DAVIS v. ADA COUNTY
• Court: Idaho Supreme Court

47 P. 93

5 Idaho 126

DAVIS v. ADA COUNTY

Supreme Court of Idaho

December 12, 1896

DAMAGES-CONSTRUCTION OF BRIDGE-LIABILITY OF COUNTY.-County is not liable for damages sustained by reason of negligence in construction and maintainance of bridges unless made so by statute.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed. Costs awarded to respondent.

George H. Stewart, for Appellant.

Various provisions of the statute and constitutional provisions would seem to erect counties into municipal corporations, and provide them with a corporate fund and the power of raising it, and invest counties with the care of highways and bridges, and provide a complete system and give them complete control over bridges and highways and a fund with which to pay damages against such counties. (Const., art. 1, sec. 14; Idaho Rev. Stats., secs. 870, 1730, 1731, 1733, 1735, 1759 subd. 4.) Thompson on Neglibence, volume 1, page 618, lays down as the general rule: "Where counties are erected into corporations, provided with a corporate fund, the power of raising it, and invested with the care of public highways and bridges, the reason or the rule (of nonliability) ceases and the rule ought to fall with it; they should stand upon the same footing in this respect as chartered cities," and holds counties, as well as chartered cities, liable for negligence. The county had authority to make the improvement complained of, but they had no right or authority to make it of that character which would injure the property of another. (Conniff v. San Francisco, 67 Cal. 45, 7 P. 41; Pumpelly v. Green Bay Co., 13 Wall. 166; Welch v. Plumas Co., 80 Cal. 338, 22 P. 254; Tyler v Tehama County, 109 Cal. 619, 42 P. 240; Reardon v. San Francisco, 66 Cal. 492, 56 Am. Rep. 109, 6 P. 317.) A municipal charter never gives, and never could give, authority to appropriate the freehold of a citizen without compensation whether it be done through an actual taking of it for streets or buildings, or by flooding it, so as to interfere with the owner's possession. (Gray v. Knoxville, 85 Tenn. 99, 1 S.W. 622.) Any act of a municipality doing a wrongful act, causing a direct injury to the property of another, such as negligently constructing or maintaining a bridge or culvert in a highway across a navigable stream or natural watercourse, so as to cause the water to flow back upon and injure the land of another, is liable to an action of tort. (Anthony v. Adams, 1 Met. 284; Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 6 Gray, 544, 66 Am. Dec. 431, and note; Parker v. Lowell, 11 Gray, 353; Wheeler v. Worcester, 10 Allen, 591; Gilman v. Laconia, 55 N.H. 130, 20 Am. Rep. 175; Barns v. City of Hannibal, 71 Mo. 449; Mootry v. Town of Danbury, 45 Conn. 550, 29 Am. Rep. 703; Tuthill v. Scott, 43 Vt. 525, 5 Am. Rep. 301; Riddle v. Delaware County, 156 Pa. St. 643, 27 A. 569; Payne v. Kansas City St. etc. R. R. Co., 112 Mo. 6, 20 S.W. 322; Barden v. City of Portage, 79 Wis. 126, 48 N.W. 210.) The board of county commissioners had authority to build the bridge and dyke. They acted within their jurisdiction. They invaded and destroyed plaintiff's property. The law makes the county liable. (2 Dillon on Municipal Corporations, sec. 971; Rochester White Lead Co. v. City of Rochester, 3 N.Y. 464, 53 Am. Dec. 316, and note; Conrad v. Village of Ithaca, 16 N.Y. 160; Lee v. Sandyhill, 40 N.Y. 446; Howell v. Buffalo, 15 N.Y. 512; Bank of Commerce v. New York, 43 N.Y. 184; Williams v. Dunkirk, 3 Lans. (N. Y.) 44; Elliott on Roads and Streets, 40.)

Hawley & Puckett, for Respondent.

The great weight of authority sustains the rule that a county is not liable for a tort unless by express provision of statute. (Dillon on Municipal Corporations, sec. 963; Kincaid v. Hardin Co., 53 Iowa 430, 36 Am. Rep. 236, 5 N.W. 589; Marion Co. v. Riggs, 24 Kan. 255; Barnett v. Contra Costa Co., 67 Cal. 77, 7 P. 177; Elliott on Roads and Streets, 323, and authorities cited in note 2; Crowell v. Sonoma Co., 25 Cal. 313.) There is no common-law obligations resting upon counties to repair bridges within their limits. Where the legislature makes it the duty of the county to make and repair bridges and confers the power to levy taxes therefor, it is generally regarded as a public and not a corporate duty, and such corporations are regarded as public or state agencies and not liable to be sued for neglect unless the action is expressly given by statute. (2 Dillon on Municipal Corporations, sec. 997, and note 1; White v. County of Bond, 58 Ill. 297, 11 Am. Rep. 65.) We urge that the question of liability of the counties of this state for damages such as herein claimed has been settled by this court. (Worden v. Witt, 4 Idaho 404, 39 P. 1114; Gorman v. Commissioners, 1 Idaho 655.)

SULLIVAN, J. Morgan, C. J., and Huston, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages for the negligent, improper, and unskillful construction and maintenance of a certain bridge and approach to the bridge across Boise river at Boise City, in Ada county, by means of which it is alleged the waters of said river were diverted and changed into a new and narrow channel, insufficient in width to permit the water of said river to flow freely and without obstruction, and thereby forced said water over against the north bank of said river, and caused said bank to cut away and flow over the lands of the plaintiff, by reason of which thirty acres of plaintiff's land were washed away and destroyed. A claim for the damages thus alleged to have been sustained by the plaintiff was presented to the board of county commissioners of said Ada county for allowance, which claim was rejected by said board. Thereupon the plaintiff brought this action against Ada county. The case was tried to a jury, and at the close of plaintiff's evidence the defendant moved for a nonsuit, which motion was granted, and judgment of dismissal and for costs was duly entered. This appeal is from the judgment.

The motion for nonsuit was based upon several grounds, all of which appear in the transcript. It is conceded by both parties that the vital question is whether the county is liable to the plaintiff for the injury stated in the complaint, and proven upon the trial. The appellant contends under various provisions of our constitution and statutes, that counties should be held liable for negligence in the construction and maintenance of highways and bridges to the same extent as cities, as they seem to be, substantially, placed on the same footing under the law. This view is sustained by some very respectable authority. Thompson in his work on Negligence (volume 1, page 618), referring to the case of Hedges v. Madison Co., 6 Ill. 567, in which Shilds, J., said: "All the cases assume...