Summary
Appeal from, Dubuque District Court.
Action at law. The petition avers, that, prior to the date when plaintiff’s cause of action accrued, there had been erected and maintained a bridge on Seventh street in the city of Dubuque over a slough of the Mississippi river; that Seventh street was a highway leading from the business portion of the city to the levee upon the river, and, as such, was used by the public; that said bridge was a county bridge, and it was the duty of the city as well as the county to rebuild it after it became impassable: that before the bridge became impassable, a large quantity -of wood being deposited upon tbe levee, as was customary, was purchased by plaintiffs for the purpose of reselling to its customers in the city of Dubuque; that the levee was liable to be overflowed by the river, and the street upon which the bridge in question was erected was the only way over which the wood could have been transported to plaintiff’s customers. On account of the bridge becoming impassable, and of the negligence of defendants, in failing to j rebuild it, plaintiff was unable to remove his wood. Sub-' sequently, but prior to any repairs made upon the bridge, the wood was lost by a flood in the river. The defendants provided no other bridge or way, while the bridge in question was unfit for use, by which plaintiff could have removed the wood.
The defendants separately demurred to the petition, alleging that it. exhibited no cause of action, and each claiming not to be liable upon the state of facts set out in the petition. The demurrers were sustained and plaintiff appeals.
I. The demurrer was so general that it should have been disregarded by the court. Code, § 2877; Jones v. Brunskill, 18 Iowa, 129; Singer v. Comers, 26 id. 178.
II. The board of supervisors have the general supervision over the highways of the county. Eev. 1860, §§ 819, 823, 327, 311, sub. 18.
This supervision is not taken away simply because the bridge is within an incorporated city. Bell v. Foutch, 21 Iowa, 127, 129.
If the bridge is a large one, as in this case, it becomes the duty of the county to keep it up. Bamrett v. Brool&s, 21 Iowa, 151: Eev. § 710: Soper v. Henry Co., 26 Iowa, 269.
III. The bridge in question being a large one, and requiring extraordinary expense to rebuild it, becomes at once a county bridge, notwithstanding it is situated in the city. Wilson da Gustm v. Jef. Go., 13 Iowa, 181.
The supervisors levy a bridge tax on all the property in the city and county of three mills (Rev. § 710, as amended by law of 1866, p. 80), which is under the control of thq supervisors, and may appropriate now $5,000 without petition and without submission to the people. Laws 1866, p. 80, amending Rev. § 322, sub. 23.
Dubuque city pays more than half the bridge tax of the county. “ Shall we hold them utterly disabled from participating in the advantages which are presumed to be the consideration of the tax?” See Bell v. Fouteh, 21 Iowa, 130.
If the county is not compelled to erect so expensive a bridge, then we are taxed without participating in the benefits thereof. We are simply taxed twice.
IY. Bridges are parts of the public highway. Rev. §822; 16 Iowa, 339 ; Ang. §§ 38-40.
The county, being compelled to keep the bridges in repair, is liable to an action at the suit of any party who may be injured in consequence of its being out of repair. Grant on Corp. 501.
Y. Every street is a highway. Common Cowncil of Ind. v. Gross, 7 Ind. 9. And every bridge a part thereof. Rev. § 822.
Passing now to the other branch of the case, as against the city, we have to remark that it seems there is a liability somewhere. Plaintiff has been damaged by negligence of either the city or county, or both, for which there should be a remedy. Because where the law imposes a duty or obligation it gives a remedy for injuries arising from its non-performance.
We seek to make the county liable instead of the city. We have seen, cmte, that the county levy a bridge tax on all the property of the county. Dubuque city pays over one-half the said tax of the county, and should participate in the same.
Hence the equity of our action against the county, and in sfy'icUsswm'jwris we think it is liable at law, and should be so held unless good reasons can be given to the contrary.
If it should be held and determined that the county is not bound to maintain the bridge as of course, then it is the duty of the city.
The city demurs on the grounds:
1. Not liable in any event.
2. That the city was not bound to maintain the bridge.
3. It was the duty of the county.
We make the points:
I. The demurrer is too general. See first point, ante.
II.- Dubuque city is a special road district, and the care and supervision , of the highways is devolved upon the city council. City charter, Laws 6th General Assembly, ch. 210, § 18.
And by section 7, subdivisions 7, 13 and 14 of same act, it is made them duty to erect, maintain and keep in repair bridges and roads, and, in addition to other taxes, may levy a special road tax. § 10.
It would seem not to be an open question as to the duty of the city to erect and keep “in repair bridges within the city Emits. McGullom v. Black Scmk Go., 21 Iowa, 414; Angel & A. on Highways, § 270.
III. Plaintiff’s petition shows a clear damage and injury. We maintain that the city is clearly hable, and that an action can be maintained by a private party. While it is true that by the common law no action will lie for an injury which affects ah the subjects alike; an action will he in favor of a person by reason of the injury who has suffered a special damage beyond his fellow.
The petition in this case discloses special damage to the plaintiff of $1,000, and sustained because of the negligence of the city authorities to build the bridge. If the bridge had been maintained, no damage would have ensued. The bridge was allowed to decay, and fell down. No effort made to rebuild or provide means over the stream. We trace our damage directly to the negligence of the city authorities.
It is no excuse because the wood was carried away by a flood. The city, by its negligence, took the chances of the flood. Pammelee v. Willis, 22 Barb. 546. Plaintiff’s wood was banked on the levee, with no other access only over the bridge in question. It cannot be claimed but what our damage is special, and stands on a different ground from that sustained by the public at large; because they are supposed to be damaged simply in not being able to pursue this 'particular way. Plaintiff has been injured specially, and, we maintain, may have his action to recover the special damage. We cite Stetson v. Faxon, 19 Pick. 147, in which many cases are referred to; Pa/rmelee v. Weeks, 22 Barb. 539 ; 1 Hilliard on Torts, pp. 77-82; First Baptist Glvwrch v. Troy Railroad Go., 5 Barb. 79 ; Angel & A. on Highways, §§ 264-266, 270,285 ; Rochester Wh. Lead Go. v. City of Rochester, 8 N. T. 463; The Mayor, etc., v. Fv/rze, 8 Hill, 612; The Mayor, etc., v. Bailey, 2 Henio, 433 ; and the old case of LLenhy v. The Mayor a/nd Bv/rgess of Lyme Regis, 5 Bing. 91 (Eng. C. L., vol. 15, 486); the court of king’s bench, 3 B. and Ad. 77-93, in error (Eng. O. L., vol. 23, 43); and finally by the house of lords, 8 Bligh, 690, where the decisions below were affirmed.
The case was thoroughly discussed and examined, having been first decided in the common pleas, then carried to the king’s bench, and afterward to the house of lords.
Also the old case of Damis v. Garrett, 6 Bing. 716 (19 Eng. O. L. 212); Dickenson v. Boyle, 13 Pick. 78. We think the damage alleged and by the demurrer confessed, in view of the above authorities, will support an action in favor of plaintiff.
IY. The defendants will say — the flood being tbe act of God, the loss was inevitable. Tbe expression act of God denotes natural, accidents, such as lightning, earthquake and tempest; and not accidents arising'from tbe fault or negligence of man. Story on Bail. § 511. Hence, tbe act of God is something in opposition to tbe act of man. Tbe bridge tumbled down, June 1st, tbe wood washed away October 3d. During all this time, plaintiff could not reach bis wood; defendant negligently omitting to rebuild, or provide means of transit across tbe slough. Will it be pretended that this negligence is tbe act of God? Tbe city council, during these months, “ took tbe chances of a flood ” (22 Barb. 539) ; were aware that tbe floods came twice each year; were importuned to provide a way over tbe slough. So we say, in consequence of tbe bad faith, negligence and non-performance of tbe city council, it ca/rmot be reasonably denied that the cause of this loss is the immediate and dl/rect result of the defendants negligence, in the nonperformance of duty, and the damage is proximate, and the natural result of this neglect of duty, being braced immediately to the fallen-down bridge, which we home seen, defendant should ha/oe maintained. See Henby v. Mayor, etc., 15 Eng. O. L., 486. On tbe question of negligence, see Lynch v. Nundln, 1 Queen’s Bench, 29 (41 Eng. O. L. 422); Sedgwick on Damages (3d revised ed.), 82.
On tbe general proposition that an action will lie where damage has been caused by flood, which might have been avoided if defendant bad performed its duty, see ante, 2 Denio, 433 ; 3 Hill, 612; Henby v. Mayor of lyme / MaArtlwr v. Sears, 21 Wend. 190; Sedgwick on Damages (3d revised ed.), 90, 91.
I. Tbe county of Dubuque makes a separate defense, and in no sense are her interests identical with tbe city’s. The city is an independent road district by her charter, and as snch has exclusive right over the streets, sewers, alleys, bridges, etc., within her corporate limits.
II. The county authorities have no more right to invade this legislative granted power than they would to interfere with the rights of adjoining counties. It is not necessary to quote authorities on this point.
■ III. The city of Dubuque could not be held responsible for damages resulting from defective bridges outside her corporate limits. Neither can the county be held liable for the negligence of the city authorities in permitting defective bridges within their municipal limits to remain defective to the damage of public travel. The city has her officers, down to street commissioner and marshal, who are freely paid to report the condition of the public highways, but they never give notice to the county authorities of defects of this kind.
IY. The city claims that she pays a bridge tax in common with the people of the county, and that the supervisors should appropriate a part of it to the keeping up of bridges within the corporate limits of Dubuque. The county answers, that the records of the supervisors (without acknowledging any legal liability to pay) show that several thousand dollars have been appropriated to the city for bridge purposes from the common fund.
. The appellee, Dubuque county, claims that the demurrer in this case raises the legal point as to the question:
“Is the county liable for the neglect of the city in allowing defective bridges within the city limits, and thus to result in damage to the traveling public ? ”
Y. The moment the bridge was built, and it is admitted a bridge was there, it became a part of the street and passed into the exclusive control of the city. Revised Statutes, 822; 16 Iowa, 339 ; Charter of Dubuque, 6th General Assembly, ch. 210, § 18 f Grant on Corporations, 501; 21 Iowa, 414,
YI. The injuries complained of are of too pifblie a nature to be a good cause of action on the part of an individual, and the damages are too remote. The wrong complained of is to the public. 6 Hill, 522; 3 id. 333; 17 Pick. 281.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
