State, ex rel. Hutter v. Papillion Drainage District

• Court: Nebraska Supreme Court
• Writing for the Court: LETTON, J.
• Citation: State, ex rel. Hutter v. Papillion Drainage District, 132 N.W. 398, 89 Neb. 808 (Neb. 1911)
• Decision Date: 25 September 1911
• Docket Number: 17,177
• Parties: STATE, EX REL. LOUIS HUTTER, SR., APPELLEE, v. PAPILLION DRAINAGE DISTRICT ET AL., APPELLANTS

132 N.W. 398

89 Neb. 808

STATE, EX REL. LOUIS HUTTER, SR., APPELLEE, v. PAPILLION DRAINAGE DISTRICT ET AL., APPELLANTS

No. 17,177

Supreme Court of Nebraska

September 25, 1911

APPEAL from the district court for Sarpy county: ALEXANDER C. TROUP JUDGE. Affirmed.

AFFIRMED.

Courtright & Sidner, for appellants.

James T. Begley, contra.

LETTON J. SEDGWICK, J., not sitting.

OPINION

LETTON, J.

This is an appeal from a decree awarding a writ of mandamus against the Papillion Drainage District requiring it to build and maintain bridges across its ditch where the same crosses certain streets in the village of Papillion.

The relator, Louis Hutter, Sr., pleaded and proved that by reason of the excavation of the ditch he was prevented from having access by way of Addition street to his land lying to the south of the ditch, whereon his slaughter-house was situated, and prayed that a writ of mandamus be issued compelling the respondent to build a bridge or crossing on that street. The respondent's answer admitted the existence of the street and its refusal to build a bridge, pleads that it acquired a right of way by condemnation across the streets of the village and has paid damages to the village therefor. It is further pleaded that it is not feasible or practicable to build bridges across the streets for the purpose of connecting the village with the territory to the south, but that the "reasonable, practicable and economical remedy" is to lay out a new street from Washington street, where a bridge now exists, along the south margin of the ditch to connect with Addition street. After the answer was filed the village of Papillion filed a petition in intervention, setting forth substantially the crossing of four streets, including Addition street, by the ditch, the obstruction of the streets thereby, and the necessity for bridges, and praying that the respondent be compelled to erect approaches and bridges on each of the streets. The answer to this petition in intervention is substantially the same as to that of the relator. The court found that the streets had been obstructed, that bridges were necessary, and that it was the duty of the respondent to erect sufficient crossings over the ditch at the points named. It further found that the allegation that a more practical remedy was to lay out a new street was immaterial and constituted no defense. From this judgment respondent appeals.

The appellant contends that the statute (Comp. St. 1909, ch. 78 secs. 110-113) by its terms does not apply to drainage districts, and that the title is not sufficiently broad to include such districts. The title reads, "An act to compel railroad corporations and others to make and keep in repair crossings." Section 110 provides: "Any railroad corporation, canal company, mill owner, or any person or persons who now own, or may hereafter own or operate, any railroad, canal, or ditch that crosses any public or private road shall make and keep in good repair good and sufficient crossings on all such roads, including all the grading, bridges, ditches, and culverts that may be necessary, within their right of way." It is argued that under the doctrine of ejusdem generis the words, "and others," apply to corporations or persons of a similar nature to railroads, and that, since we have held that a drainage district is of a purely public and administrative character, it is not of a similar character to a railroad corporation. It is further said that a drainage district does not "own and operate" a ditch, and that the title and the language of the act show that it was only intended to apply to profit-sharing corporations. This argument is ingenious, but hardly convincing. We think it plain that the intention of the legislature was to place in the same class "railroad corporations and others" engaged in similar acts with reference to the highway; that is, other persons and corporations "who now own, or may hereafter own or operate, any railroad, canal, or ditch that crosses any public or private road." The classification is based, not upon the manner of the organization of the corporation or whether created for pecuniary profit or not, or whether the corporation is public or private, but is based upon the effect that its operations must necessarily have upon the highway. It merely imposes a duty upon whoever--whether natural or corporate individual does not matter--obstructs a highway by the building of a railroad, or the excavation of a canal or ditch, to...