Hawks v. Mayor, Etc., of City of Goshen

• Decision Date: 25 March 1896
• Citation: 144 Ind. 343,43 N.E. 304
• Parties: HAWKS et al. v. MAYOR, ETC., OF CITY OF GOSHEN.
• Court: Indiana Supreme Court

144 Ind. 343

43 N.E. 304

HAWKS et al.

v.MAYOR, ETC., OF CITY OF GOSHEN.

Supreme Court of Indiana.

March 25, 1896.

Appeal from circuit court, Elkhart county; J. M. Van Fleet, Judge.

Action brought by the mayor and common council of the city of Goshen, Ind., against the board of commissioners of the county of Elkhart, Ind., and C. & E. Hawks, upon an agreed statement of facts, to determine who was liable for the cost of building and maintaining a bridge over a canal in the said city, the property of defendants C. & E. Hawks. Judgment was rendered against defendants C. & E. Hawks, who appealed. Affirmed.

Baker & Miller, for appellants. A. S. Zook and W. L. Stonex, for appellees.

McCABE, J.

This is an appeal from a judgment rendered against the appellants upon an agreed statement of the facts under section 562, Rev. St. 1894 (Rev. St. 1881, § 553). The only error assigned here is that “the court erred in rendering judgment against appellants C. & E. Hawks, and in issuing a peremptory writ of mandate against them.” The agreed statement is as follows:

“The Mayor and Common Council of the City of Goshen vs. The Board of Commissioners of the County of Elkhart. C. & E. Hawks. Submission of the Agreed Case under Section 553, Rev. St. 1881. The mayor and common council of the city of Goshen, Indiana, the board of commissioners of Elkhart county, and C. & E. Hawks, by agreement, submit to the Elkhart circuit court for decision the following controversy: In the year 1866, and for many years prior thereto, there was a public highway leading into the town of Goshen, from the southwest. In that year a hydraulic canal company constructed a canal along the west side of the town, which cut through the said highway. The canal company, at its own expense, constructed a frame bridge across the canal at that point, which, although only wide enough to allow of one team crossing upon it at a time, was of sufficient size to accommodate the travel on the highway, and satisfactory to the public authorities. The bridge was maintained solely by the canal company until the company, having become insolvent, went into the hands of a receiver, in the year 1893. C. & E. Hawks bought the canal property of the receivers, and no repairs have since been made. The bridge is now out of repair, and dangerous, and a new bridge is necessary. The population of Goshen has greatly increased since 1866, and so has that of the adjoining territory southwest of the city. In the vicinity of the bridge, on the east, new streets have been laid out; and all of the land, then covered with timber, on the east, north, and south of it, has been platted into city lots, and very generally built upon. The highway first mentioned is now West North street, and it and the bridge are wholly within the city limits. Extending from the north, Third street has been opened, and terminates at the east end of the bridge, as shown on the diagram attached hereto, and made a part hereof. With the increase in population, there has been a corresponding increase in the use of the highway and the travel thereon, making it necessary to have a bridge constructed of sufficient width to allow two teams to cross at the same time. To accommodate the travel of Third street, it is also necessary to change the location of the bridge and the width of the same, and also to protect it with a guarded approach from the northeast, and also to construct said bridge on a different angle. A bridge could be constructed, substantially like that originally built, for $150, but such a bridge as the public necessities require will cost nearly $650. C. & E. Hawks refuse to build or repair the bridge, and the mayor and common council of the city, having first called upon them to build such a bridge as the public necessities require, upon their refusal to do so, having called upon the board of commissioners of Elkhart county to cause the same to be constructed under the provisions of the act of March 7, 1885, the board of commissioners also refused to construct the bridge. The mayor and common council of the city of Goshen claim that, as the bridge which must be constructed will cost more than $500, they have no duty in the premises, except to notify the board of commissioners of the county of the necessity, and to call upon them to build it at the expense of the county. They also claim that, as the necessity for the construction of any bridge at that point was caused by the act of the grantors of C. & E. Hawks, they and their successors are bound to maintain the same and keep it in repair in such a way as to fully provide for the public requirements at all times. The board of commissioners claim that, as the bridge is a private bridge, they are charged with no duty in respect to it. They also claim that they are charged with no duty in respect to said bridge for the reason that, if the county or city is required to pay such a part of the cost of a sufficient bridge as exceeds the cost of such a bridge as the canal company and its grantees have heretofore maintained, yet this excess is less than five hundred dollars, and therefore the duty of constructing and paying for it rests on the city, and not on the county. They also claim...