Snyder v. Foster

• Court: United States State Supreme Court of Iowa
• Citation: 77 Iowa 638,42 N.W. 506
• Parties: SNYDER v. FOSTER ET AL.
• Decision Date: 23 May 1889

77 Iowa 638

42 N.W. 506

SNYDER

v.FOSTER ET AL.

Supreme Court of Iowa.

May 23, 1889.

Appeal from district court, Dickinson county; GEORGE H. CARR, Judge.

Action in equity to enjoin defendants from auditing, allowing, or paying claims for the building of a bridge across a navigable lake. A demurrer to the petition was overruled, and, defendants refusing to further plead, a decree was rendered in favor of plaintiff as prayed. The defendants appeal.Soper & Allen, for appellants.

Parker & Richardson, for appellee.

ROBINSON, J.

Plaintiff is a resident and tax-payer of Dickinson county, and defendants are the said county, its auditor, and treasurer, the members of its board of supervisors, and the person who contracted to build the bridge in controversy. The contractor did not appear in the district court, and the cause was there continued, as to him, for service. He is not therefore a party to this appeal. On the 19th day of June, 1888, the board of supervisors of Dickinson county ordered the construction of a public bridge across a navigable body of water known as “East Okoboji Lake,” and on the 1st day of the next August entered into a contract for the building of the bridge for the price of $4,900. The contract required the bridge to be 1,100 feet long and 16 feet wide; to be constructed with a draw, which could be opened for the passage of boats, and which would furnish the only means for the passage of boats through the bridge. A highway has been established on each side of the lake to points which the bridge is designed to connect, but no highway has been located where it is proposed to build the bridge, and no proceedings have been instituted for that purpose. No special act of congress or of the general assembly of the state of Iowa, giving authority to the board of supervisors of Dickinson county to construct a bridge over the lake named has ever been passed. It is shown that, unless restrained by order of court, the funds of said county will be appropriated and used by defendants in paying for the bridge in question.

1. It is claimed by appellants that plaintiff is not entitled to maintain this action, for the reason that he has no interest to subserve excepting that shared in common by other tax-payers, and because the state of Iowa alone has the right to object to the building of the bridge over its navigable waters. The case of Bell v. Foutch, 21 Iowa, 132, is cited to support the claim, but it does not decide the question involved in this case, and is not in point. Plaintiff does not ask that the building of the bridge be enjoined, but seeks to prevent the appropriation of county funds for a purpose which he alleges to be illegal. It is well settled that a tax-payer may maintain an action in his own name to prevent unlawful acts by public officers, which would increase the amount of taxes he is required to pay, or diminish a fund to which he has contributed. 2 High, Inj. § 1560; Hospers v. Wyatt, 63 Iowa, 265, 19 N. W. Rep. 204;Cornell College v. Iowa Co., 32 Iowa, 520;Carthan v. Lang, 69 Iowa, 384, 28 N. W. Rep. 650. In our opinion the claim of appellants is not well founded.

2. It is conceded by appellants “that the beds of all navigable waters in the western states belong to the state wherein situated, and not to the United States.” See Gilman v. Philadelphia, 3 Wall. 713, and cases therein cited. States have power to authorize the construction of bridges over navigable waters within their limits until congress intervenes and supersedes their authority. Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. Rep. 423. It is not claimed that congress has ever assumed control of the lake in question. We are therefore required to determine whether the general assembly of Iowa has conferred upon boards of supervisors authority to build bridges across the navigable lakes within the state. Where not otherwise provided by statute, all navigable waters of a state are public property for the use of all citizens, and cannot be obstructed without legislative sanction. Com. v. Inhabitants of Charlestown, 1 Pick. 185, and cases therein cited; Commissioners v. Board, 39 Ohio St. 634; Gould, Waters, § 139, and notes. Section 303 of the Code authorizes boards of supervisors “to alter, vacate, or discontinue any state or territorial highway within their respective counties; to lay out, establish, alter, or discontinue any county highway heretofore or now laid out, or hereafter to be laid out, through or within their respective counties, as may be provided by law: to provide for the erection of all bridges which may be necessary, and which the public convenience may require, within their respective counties, and to keep the same in repair.” We understand counsel for appellants to rely upon these provisions as conferring upon boards of supervisors the authority in controversy. Section 1001 of the Code provides that “bridges erected or maintained by the public constitute parts of the highway, and must not be less than 16 feet in width.” It is evident that such a bridge cannot be constructed where a highway cannot be established. Before a highway can be established, the right to use the land over which it is to pass must be obtained for highway purposes. If it is not otherwise procured, notice of the proposed highway must be served on each owner or occupier of land lying within it or abutting thereon, as shown by the transfer books in the auditor's office when such owner resides in the county, and it must also be published four weeks in some newspapers printed in the county. Code, § 936. Where such notice is not given, the highway cannot be established; State v. Weimer, 64 Iowa, 244, 20 N. W. Rep. 171;State v. Anderson, 39 Iowa, 275. It is well settled that no action or proceeding can be maintained...