State ex rel. Crandall v. Eickhoff

Fawcett, J. This is an action in mandamus to compel the respondents, who are supervisors of Knox county, to construct and maintain a bridge over a stream of water on a public highway in the township of Herrick, in that county. On a hearing to the court, the action was dismissed at relator’s costs. Relator appeals. The action is based upon the following sections of the Revised Statutes, 1913: “3060. In counties under township organization the expense of building, maintaining and repairing bridges on public roads over streams shall be borne exclusively by the county within which such bridges are located. “3061. . The county board of every such county shall build, maintain and repair every such bridge, and malee prompt and adequate provision for the payment of the expense thereof.” That the road in question is a public road is conceded. The only disputed qtiestion, therefore, is as to whether the watercourse in controversy is a “stream,” within the meaning of the statute. The evidence shows that the stream has its source in flowing springs located about 80 [740] to 100 rods above the bridge; that in ordinary flood times it drains more than a section of land. The testimony varies as to its width and depth. One witness testified that the stream of water is abont 11 feet wide and of an average depth of 3 or 4 inches; that the distance between the approaches, where the old bridge was, is 16 feet, and to the bottom of the stream 4½ feet- Another witness testified that it is 16 feet from bank to bank where the old bridge went out, and the water level is abont 10 or 11 feet wide. Another gives the width as 11 feet, and the depth of the water 2 or 3 inches. The man who bnilt the old bridge testified that the water is from 4 to 6 inches deep, and abont 5 feet wide; that, in building it, he used eight-foot cedar posts, driven down, with 4x8 stringers nailed on each side, three-inch plank on top, and 10 feet wide. One witness testified that the old bridge was not large enough to accommodate the water at all times; that it should have been 20 feet wide, and about 3 feet higher, in order to carry the water in an ordinary rain. Another witness testified that, to put in a proper bridge, 20-foot piling should be driven down to about 6 feet and the bridge fastened to it; that a five-foot culvert would not do at times. There is no controversy over the fact that there is a continuous flow of water in the stream at all seasons of the year, both winter and summer, and that this has been true for 30 years or more. A stream is defined in the Century Dictionary: “A course of running water; a river, rivulet, or brook.” This definition was approved in County of Dodge v. County of Saunders, 70 Neb. 451. In 36 Cyc. 1334, it is said that the word “stream” has a well-defined meaning. Among these meanings given by the author is: “A current of water; a body of water having a continuous flow in one direction.” In Trustees of Schools v. Schroll, 120 Ill. 509, 521, it is said: “The word ‘stream’ has a well-defined meaning, wholly inconsistent with a body of water at rest. * * * And this is so, independent of the size of the one or the other. The flowing rivulet of but a few inches in width is a stream as certainly as the Mississippi.” [741] We are unable to see how we can give any other meaning to the word as used by the legislature in the act above quotéd, without resorting to a forced construction of the language used. The statute in question was enacted by the legislature in 1887. Laws 1887, ch. 72.. Prior to that time the law relating to the construction of bridges over streams in counties under township organization required such bridges to be constructed by the township in which the bridge was located, while in counties not under township organization the county was required to construct them. There being no just reason for any such distinction, the act in question was passed. The evident intention of the legislature was to require counties to provide the means of crossing all streams which would require the construction of a bridge. The justice of such a law cannot be questioned. A bridge, being in its very nature a substantial and permanent structure, which would necessarily cost a considerable sum of money, should be built by the county. We see no good reason why a township should be required to build an expensive bridge on a public road which is in general use, not by the township alone, but by the county generally. The evidence fully shows that the watercourse in controversy is a stream, within the meaning of the law and the intention of the lawmakers. The cost, therefore, of spanning it with a suitable bridge should be borne by the county. The judgment of the district court is therefore reversed and the cause remanded, with directions to enter judgment in accordance with the prayer of the relator. Reversed. Hamer, J., not sitting.