State ex rel. Pankonin v. County Commissioners

Ryan, C. ‘ Certain taxpayers of Cass county sought in the district court of Cass county by mandamus to compel the commissioners of said county to repair the north half of the bridge at Louisville across the Platte river, which forms the boundary line between Cass and Sarpy counties. On issues duly joined it was held by the said district court that the liability of each of said counties had been determined and settled in Dutton v. State, 42 Neb. 804, and the writ was denied. In this we think the trial court held correctly, and shall therefore merely refer to ■the opinion in the case just cited for a fuller statement of facts than above given, if a fuller statement is desired. It is now insisted, however, that the ruling in the case just cited should be modified because the waters of the Platte river opposite Louisville flow nearer the northern than the southern bank of said stream. There has 245 been cited, no adjudication in support of this contention, and opposed to it are the following cases: Dunlieth & Dubuque Bridge Co. v. County of Dubuque, 55 Ia. 558; Rowe v. Smith, 51 Conn. 266; In re Spier, 3 N. Y. Supp. 438; Flynn v. City of Boston, 26 N. E. Rep. [Mass.] 868. We have been able to find no case holding differently from those above cited, and Flynn v. Oily of Boston, supra, is fortified by a large number of adjudications. We therefore assume that in this case the ordinary rule applies, that where a stream of water constitutes the boundary line between two political subdivisions of a state, each holds to the middle of the channel, — that is, to a line parallel to and midway between the banks, — and accordingly, under the authority of Dutton v. State, supra, each is liable for bridge repairs. The judgment of the district court is Affirmed.