Williamson v. Hosley

Eti-iridge, J., delivered the opinion of the court. The appellee filed a bill in the chancery court against the appellants, as highway commissioners of Warren county, to prevent the said highway commissioners from constructing culverts across a certain highway out of funds of the [509] roacl district created under the provisions of chapter 277, Laws of 1920. She alleged that she was a property owner of the said district, and that the said district was duly and legally organized under chapter 176, Laws of 1914, and laws amendatory thereto, of which chapter 277, Laws of 1920, is an amendment, and that the appellants were duly elected and acting highway commissioners, and that said district has legally issued bonds in the sum of fve hundred thousand dollars under the provisions of said chapter; that, in attempting to perform the duties and functions of the office of highway commissioners, they have employed an engineer to lay out and survey said road, and that said engineer has made estimates and determined and fixed said road to be constructed under said acts, and that the board of supervisors has ratified said action of said commissioners and engineer, and that in the plans there are a number of expensive bridges and culverts, each of which will cost over twenty-five dollars, and some of the culverts will cost as much as one thousand dollars; and that it is the plan and purpose to pay for such culverts out of said road bond fund, irrespective of the cost thereof, and that the highway commissioners have advertised for bids to build culverts by contract on said road, and, unless restrained, it will be so constructed and paid for out of said funds. Wherefore the bill prays for a writ of injunction restraining the respondents from letting such contracts — that is, contracts for. constructing said culverts. The highway commissioners demurred to the bill, first, on the ground that the bill is insufficient in law, because section 20 of chapter 277, Laws of 1920, provides: “It shall be the duty of the board of supervisors out of the county fund to build all bridges in districts coming under this act the cost of which exceeds twenty-five dollars, and to keep the same in repair.” The demurrer was overruled in the court below, and appeal granted here to determine whether or not the highway commissioners can construct culverts out of the road district fund, or'whether the term “bridge” in section 20 of [510] said act included also culverts costing more than twenty-five dollars. Under section 6 of the act it is provided that, on a recommendation of the highway commissioners, an annual tax shall be levied in such district or districts not exceeding three mills on the dollar, which shall he used to supplement the general fund of the county in maintaining said roads, culverts, bridges, and levees thereon. We deem it needless to go into an extensive discussion of the definition of bridges and culverts. We think there is a difference between the two terms, and that the term “bridges” generally refers to structures over such streams as constitute natural water courses which, in a state of nature, would at some time have to be bridged to insure passage over a crossing. Of course the term is used sometimes in a more extended sense, but in the statute before us we think the legislature had the distinction in mind, and that the term “bridge” in this statute does not include culverts. In Cleveland v. Town of Washington, 79 Vt. 498, 65 Atl. 584, it was held that these words were not synonomous. In Carroll County v. Bailey, 122 Ind. 46, 23 N. E. 672, it was held that a culvert is not a bridge within the meaning of the statute of Indiana requiring county commissioners to construct and repair bridges over streams and water courses: It follows from what we have said that the highway commissioners have a right, with the approval of the board of supervisors, to build culverts as a part of the road to be constructed, and that the demurrer to the bill should have ben sustained. The judgment will be reversed, and the bill dismissed. Reversed, and bill dismissed.