Gooding Highway District v. Idaho Irrigation Co.

MORGAN, J. Appellant instituted this action pursuant to sec. 3310, Rev. Codes, to recover the cost of construction of certain bridges built across irrigation ditches and canals of respondent. That section makes it the duty of the owner of a ditch or canal to build substantial bridges at all places where it crosses county or state roads, or any road kept open and used by the people of a neighborhood for their convenience and benefit, and provides that in case the owner neglects or refuses so to do, the board of county commissioners of the proper county shall, after ten days’ notice, proceed to construct the same, and shall collect the cost thereof, together with costs of suit. — 235 — It- appears from the amended complaint that on January 12,1909, the board of county commissioners of Lincoln county, by order entered of record, declared all section lines within certain townships in that county to be public highways; that appellant was organized as a highway district on June 20, 1911, and succeeded to the ownership of the roads laid out and constructed within its territory; thereafter Gooding county was created from a portion of Lincoln county and the townships in question were included therein; that, prior to the creation of the highway district and during the latter part of the year 1909 and early in 1910, respondent constructed ditches and canals across certain section lines within the aforesaid townships, and that between September 1, 1911, and December 1, 1912, after the ditches and canals had been constructed and put to use, appellant, while building and repairing highways along these lines, constructed sixteen bridges, at points where they intersected the ditches and canals, at an aggregate cost of $1,220; that at least fifteen days prior to building the bridges appellant gave notice to respondent to construct them, but by reason of its refusal to do so appellant was obliged to and did build the bridges at its own cost and expense; that all the land adjacent to the section lines above mentioned, prior to January 12, 1909, the date of the order of the board of county commissioners, was public land of the United States and had been filed upon as “Carey Act” land and was reclaimed and watered by the irrigation system of respondent; that the contract between the state of Idaho and respondent, which provides for the construction of the system and for watering the land, contains the following section: “Sec. 16. Highways. — Entries of land are understood to be made subject to a right of way without compensation to the entryman for roads upon all section lines and also upon all half section lines which may be designated by the board of county commissioners, as may be provided by law.” Eespondent demurred to the amended complaint. The demurrer was sustained and, upon appellant’s refusal to further — 236 — plead, judgment of dismissal was entered from which this appeal is prosecuted. Sec. 2477, Rev. Stats. U. S., provides: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” It is appellant’s contention that in view of this act of Congress, which grants a free right of way for roads across the public domain and in view of sec. 16, heretofore quoted, of the contract between the state and respondent reserving the right to lay out highways along the section lines here under consideration, no other action than that taken by the board of county commissioners was necessary to establish legal highways thereon. In support of this contention the following eases are cited for our consideration: Schwerdtle v. Placer Co., 108 Cal. 589, 41 Pac. 448; Tholl v. Koles, 65 Kan. 802, 70 Pac. 881; Wallowa Co. v. Wade, 43 Or. 253, 72 Pac. 793; Walbridge v. Board of Commrs. Russell Co., 74 Kan. 341, 86 Pac. 473; Board of County Commrs. of Cowley Co. v. Johnson, 76 Kan. 65; 90 Pac. 805; Molyneux v. Grimes, 78 Kan. 830, 98 Pac. 278; Mills v. Glasscock, 26 Okl. 123, 110 Pac. 377; Wells v. Pennington Co., 2 S. D. 1, 39 Am. St. 758, 48 N. W. 305. These authorities decide that where the state legislature declares certain section lines on the public domain to be highways, such lines are thenceforth highways on the theory that such a declaration is an acceptance of the grant made by the government, where no private rights have theretofore intervened, and that where the statutes of the state have provided for laying out highways by action of the board of county commissioners or where a right of way has been acquired by prescription such action by the board, in the manner provided by law, or user for the prescribed period, is as complete an acceptance of the government grant as if the legislature itself had acted directly. In order that an act of a board of county commissioners in laying out a highway be valid, whether it be upon the public domain or over private property, the board must conform, substantially, to the law giving it such authority, because the power to establish highways rests, inherently, in the legis — 237 — lature and not in the board, and the right may be exercised only in such manner as the legislature prescribes. (Gorman v. Co. Commissioners, 1 Ida. 553; Prothero v. County Commrs., 22 Ida. 598, 127 Pac. 175.) Sec. 916 et seq., Rev. Codes, prescribing the methods to be followed by boards of county commissioners in laying out highways, were in force in 1909, at the time of the action of the board which is relied upon by appellant in this case. These sections, at that time and prior to the amendment of the law upon that subject, provided for the filing of a petition by a certain number of residents of the road district in which the proposed highway was to be built; that the petition must describe the route, state the estimated cost and the necessity and advantages of the proposed road. It was necessary that a bond accompany the petition to secure the payment, if it was denied, of the costs of the proceeding; viewers must be appointed whose duty it was to make a report upon the facts alleged in the petition, and a time must be fixed at which those in favor of and those opposed to the establishment of the highway might be heard. Appellant insists that by section 16 of the contract between the state and respondent all proceedings, such as the petition and hearing, appointment of viewers, etc., were waived and that consent was granted for the establishment of these highways. See. 934, Rev. Codes, was as follows: “Public roads may be established without appointment of viewers, provided the written consent of all the owners of land to be used for that purpose be first filed with the board of county commissioners; and if it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance to be opened and worked by the public, they shall make an order establishing the same, from which time only, shall it be regarded as a public road. ’ ’ Assuming that respondent could and did give the consent contemplated by that section and that viewers were unnecessary, yet the board must comply with the other provisions of the law. Respondent is not shown by the amended complaint — 238 — to have waived (even though it could have done so) the presentation of a petition signed by the requisite number of residents of the district, notice of hearing, or the trial of the question of the sufficiency of public importance of the highways, and the amended complaint does not show that these steps, necessary to invest the board with jurisdiction, were taken. The most favorable construction to appellant of which section 16 of the contract is susceptible is that respondent consented, for itself and for future entrymen, not to the laying out of highways, nor that they would be of advantage or importance, but only that if the board of county commissioners, after proper petition and hearing thereon, should decide that highways were necessary and of sufficient public importance to justify the expense of their establishment and maintenance, and should otherwise proceed “as provided by law” in designating, establishing and laying them out, no compensation would be exacted for necessary land taken for that purpose along section and half-section lines. The owner of a ditch or canal constructed across an established highway must provide a bridge, at the point of intersection, for the use and benefit of the public, but if the ditch or canal is constructed prior to the establishment of a public road which intersects it, the expense of building the bridge must be borne by the county or highway district to which the road belongs. (MacCammelly v. Pioneer Irr. Dist., 17 Ida. 415, 105 Pac. 1076; Boise City v. Boise City Canal Co., 19 Ida. 717, 115 Pac. 505: City of Twin Falls v. Harlan, 27 Ida. 769, 151 Pac. 1191.) The amended complaint in this case fails to show that the board of county commissioners complied with the statutes in the matter of laying out and establishing the highways in question, and since it could not, legally, act in an arbitrary manner and without regard to the wishes of those whose property was taxable for the construction and maintenance of the same, it follows that the order relied upon by appellant does not appear from the amended complaint to be valid; that the facts alleged in the amended complaint do not show respond — 239 — ent to be chargeable with the cost of constructing the bridges, and the demurrer was properly sustained. (Canyon Co. v. Toole, 9 Ida. 561, 75 Pac. 609.) The judgment appealed from is affirmed. Costs are awarded to respondent. Rice, J., concurs.