care upon the part of the plaintiff, and quainted with the condition of said street in the course of ordinary travel upon said at the time he entered upon the same; but street, the horse upon which the plaintiff that there was a hole or space some 40 feet was riding stepped in said mudhole and long and 30 feet wide in said street which upon said stones and bricks which had been had been partially filled with rocks of worn smooth, and dangerous to travel, and various sizes and dimensions that were prothe said horse stepped upon said stones and truding from the surface; that as he ap-. bricks and fell in said mudhole and upon proached the same the horse upon which said rocks and bricks solely on account of he was riding shied at the rocks and again said unsafe condition, and in falling the shied at the fluttering cover upon the plaintiff's left leg was caught between the asphalt wagon, and jumped among and body of said horse and said stones, both upon said rocks, which caused it to fall bones thereof were crushed and broken at a with and injure plaintiff. The undisputed point about 3 inches above his ankle, and evidence is that the horse upon which plainhis said leg was thereby greatly and per- tiff was riding was a well-broken animal manently injured, and he was on that ac- and ordinarily sure of foot. count for a long time sick, and has ever since been in great pain and in mental anguish," etc. Plaintiff's testimony is as follows: pile of rocks and fell, and, as I saw him fall, I got my feet out of the stirrups. A. The place was between Altamont and Defendant assigns as error: (1) OverFourth street, and there has been a big ruling the motion for a new trial; (2) ad- mudhole, and someone had filled it up mitting evidence on the part of plaintiff; with rocks, and left only a zigzag path for (3) refusing to direct a verdict for de- a wagon to go through, and on the north fendant; (4) entering judgment for the side there was a place where a footman plaintiff; and (5) refusing to give the went through, and as I went down there I following instruction to the jury: turned off Fourth street on Market, and "You are instructed that the matter of improv- there was an asphalt wagon with a sheet ing and maintaining given parts of a street over it to the left, and in the same track set aside for public use pertains to the I was, and I was galloping along, and I discretion of the legislative department of saw that I couldn't go through there, and a city. There may be streets or parts of turned to go to the footman's path, and streets in a city which are not absolutely tried to check up my horse, and he was necessary for the convenience of the pub-fractious, and as he jumped he struck the lic, and which will be brought into use by the growth of the city; and there may be circumstances where it is not necessary to improve the width of streets for the requirement of travel. All that is required in such cases is that the city see that a sufficient part of the street required for use shall be in a reasonably safe condition for the convenience of travel. And if in this case you find that the street was safe and in good order in sufficient width to have been traveled by the plaintiff with ordinary care and prudence, no damage occasioned by the plaintiff's horse becoming frightened and getting outside of the usual traveled portion of the street to the spot where the accident took place can be recovered against the defendant." The evidence disclosed that plaintiff, a policeman, was injured while riding a horse along Market street, a public street of the defendant city; that, in response to a call for an officer, he was proceeding upon a route that he considered the most direct to the place to which he had been called; that, after he had entered Market street traveling at a gallop, he met a wagon covered with a sheet or tarpaulin, which he designated as an asphalt wagon, moving toward him upon a crooked or zigzag pathway through said street; that he was unac A. I ran my horse around and tried to go through where the abutment was, and when the horse saw those rocks he turned and shied, and that is why he fell. After plaintiff had testified that he had was asked and answered the following quesgone 30 or 40 feet upon Market street, he tions: Q. When you turned and got 30 or 40 feet away, you saw the condition of the street well? A. Yes, sir; when I got on it. Q. And you saw the only safe place was to go on the north side, the extreme north side of the little path? A. Yes, sir. A. At the edge of the street. The street commissioner of the city testified, upon cross-examination: Q. State to the jury what was the con dition of that street? A. There had been a number of loads of rock dumped promiscuously into the street. Q. How much of a space would it leave for people to pass? A. Just a very narrow driveway. Q. Plenty of room for a person to ride along? A. Yes, sir; plenty of room to drive through single file. Q. That street was used continuously? Q. People passed around there without any trouble? A. Yes sir; every day I suppose. Had a very narrow driveway to pass through. The evidence disclosed that the street had remained in the condition above described, for about a year prior to the injury. It is urged by defendant that the defect in the street was not the proximate cause of the injury; and that the same would not have occurred had plaintiff not lost control of the horse upon which he was riding when it became frightened at the cover of the moving wagon upon such street. It is also the contention of defendant that it was not bound to keep the entire width of the street in repair. The rule established in this state is that, when a city has opened or dedicated to the use of the public a street, it is incumbent upon it to keep the entire width of such street in a reasonably safe condition for ordinary travel. Stillwater v. Swisher, 16 Okla. 585, 85 Pac. 1110. And the general rule, deduced from the various authorities, is that a city may in the exercise of its municipal powers provide that only a certain portion of a street shall be improved and used for public travel; but that, where it does so provide (if the entire street is apparently appropriated to the public use), then that certain portion must be in some manner specifically designated and defined so as not to mislead a member of the traveling public into the use of other dangerous portions to his injury. Where the entire thoroughfare is opened with nothing to indicate the purpose of the city to restrict the use thereof to a particular portion, it is the duty of the city to keep the whole in a reasonably safe condition for ordinary public travel; and a mere "zigzag" roadway through a space, covered by a number of loads of rock dumped promiscuously into the street, only wide enough to accommodate a single vehicle, does not meet the requirement of the law. main open through its entire width is an invitation on the part of a municipal corporation to the public to use the same for customary travel; and an individual using such street in the ordinary way has a right to presume that he may go thereon free from any save the usual hazards of travel. If he is exercising ordinary and reasonable care for his own safety, he may assume that the municipality has done likewise; and if, as in the instant case, he is using such street in pursuit of his lawful occupation, riding upon a well-broken horse ordinarily sure of foot, at not an unusual speed, and such animal, without fault upon the part of his rider, becomes frightened and temporarily unmanageable, and, by reason of coming in contact with an obstruction or a defect in a street negligently created or permitted to remain therein by a city, falls and injures such rider, the municipality is liable therefor. "It is clear that if a horse of ordinary gentleness merely shies or swerves to one side so that the driver does not in reality lose control over him, and injury is caused, without fault of the driver, by his thus coming in contact with an obstacle or defect in the highway, the municipality will be liable." 2 Elliott, Roads & Streets, 3d ed. § 793; Spaulding v. Winslow, 74 Me. 528; Aldrich v. Gorham, 77 Me. 287; Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166; Meisner v. Dillon, 29 Mont. 116, 74 Pac. 130, 15 Am. Neg. Rep. 101; Emporia v. White, 74 Kan. 864, 86 Pac. 295; Vogelgesang v. St. Louis, 139 Mo. 127, 40 S. W. 653; Dillon v. Raleigh, 124 N. C. 184, 32 S. E. 548; Lacon v. Page, 48 Ill. 499; Cunningham v. Thief River Falls, 84 Minn. 21, 86 N. W. 763, 10 Am. Neg. Rep. 106. In Hugo v. Nance, 39 Okla. 640, 135 Pac. 346, it was said by this court in the syllabus: "A municipal corporation is charged by law with the duty of at all times keeping its streets and sidewalks in a reasonably safe condition for travel by the public." Fairfax v. Giraud, 35 Okla. 659, 131 Pac. 159, 5 N. C. C. A. 428; Kingfisher v. Altizer, 13 Okla. 121, 74 Pac. 107, 15 Am. Neg. Rep. 173. It is also contended by the defendant that plaintiff's injury was one that could not have reasonably been anticipated by the city, and for that reason no recovery can be had. In Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568, it is said: "It is not necessary, in order to constitute proximate cause, that the precise injury should have been foreseen or apprehended as certain to occur. It is sufficient if an ordinarily careful and prudent person ought, under the circumOpening a street or permitting it to re-stances, to have foreseen that an injury might probably result from the negligent and laws of this state can be made only for act." corresponding specific benefits conferred. County special assessment — payment. See also Hill v. Winsor, 118 Mass. 251; Armendaiz v. Stillman, 67 Tex. 458, 3 S. W. 678; Wilbert v. Sheboygan Light, Power & R. Co. 129 Wis. 1, 116 Am. St. Rep. 931, 106 N. W. 1058. Again, it is insisted on behalf of defendant that there is a fatal variance between the acts of negligence alleged in the petition and the proof. In this contention there is no merit. It was not error to refuse defendant's requested instruction set forth in the assignments of error. The evidence was sufficient to take the case to the jury on the question of the negligence of the city and the issues involved. We have examined the instructions given by the court, and, in our opinion, the jury were instructed as to the law applicable to the case in all particulars. It follows that the judgment of the trial court should be affirmed, and it is so ordered. 4. The payment of that part of the expense in constructing a drainage ditch, assessed to the county for benefits to the public highways out of funds collected by special assessments levied upon the individual property located in such drainage district, would be taking private property for pubPetition for rehearing denied January 26, lative of the Constitution and laws of this lic use without just compensation, and vio All the Justices concur. 1915. OKLAHOMA SUPREME COURT. state. Mandamus -to compel erection of bridge. 5. The viewers and appraisers assessed benefits to Lincoln county by virtue of the drainage of the public highways in the sum HOMER J. WILKINS, Drainage Commis- of $134,500, and assessed damages in favor sioner, Plff. in Err., V. of said county in the sum of $81,930, the cost of erecting forty-eight steel bridges ED HILLMAN et al., County Commission- across said drainage ditch on the public ers, et al. Note. No other case has been found in point with WILKINS V. HILLMAN, on the precise question as to the fund from which an assessment against a county or town on account of benefits from a drain or other public improvement must be paid. The general question as to property liable for assessment for constructions of drains or sewers is extensively treated in notes to Heffner v. Cass & Morgan Counties, 58 L.R.A. 353, and Billings Sugar Co. v. Fish, 26 L.R.A. (N.S.) 973. As to highway crossed by ditch constructed by drainage districts, see note to Richardson County ex rel. Sheehan v. Drainage Dist. 43 L.R.A. (N.S.) 695. As to liability of railroad property to assessment for drains or sewers, see note to highways. Said assessment was confirmed by the county commissioners. No excep tions were filed or appeal taken therefrom. The county commissioners refused to erect said bridges, or to pay the amount of benefits assessed to said county. Plaintiffs, who are certain property owners in said district, filed their petition in the district court against the county commissioners, and said commissioners as ex officio drainage com Northern P. R. Co. v. Richland County, L.R.A.1915A, 129. With respect to county warrants and certificates of indebtedness it is stated in 11 Cyc. 539, that no county order or warrant should be drawn on any fund not properly raised for its payment, as claims against counties can be satisfied only out of the revenue available for the payment of such claims; and as a general rule where a county order or warrant is on its face payable out of the special funds, the holder having accepted the same can look only to such fund for the payment of his claim, and cannot recover payment after such fund has been exhausted, unless the county has diverted the money of such fund from the payment of the warrant drawn against it, 747, 33 Am. St. Rep. 396, 31 Pac. 788. The county, though under both township and county government, has control over the roads, and is agent of the state for payment of such assessments. missioners, and against plaintiff in error, 44; Franklin County v. Ottawa, 49 Kan. as drainage commissioner, praying for a writ of mandamus, requiring them to meet and proceed to let the contract for the erection of said bridges. The court found in favor of the county commissioners, and issued a peremptory writ of mandamus requiring the commissioners, as ex officio drainage commissioners, and the drainage commissioners, to meet and proceed to let the contract for the construction of said bridges. Held, error. People ex rel. Vaughn v. Welch, 252 Ill. 167, 96 N. E. 991; Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; Iowa Pipe & Tile Co. v. Callanan, 125 Iowa, 358, 67 L.R.A. 408, 106 Am. St. Rep. 311, 101 N. W. 141, 3 Ann. Cas. 8; New Orleans v. Warner, 175 U. S. 127, 44 L. ed. 101, 20 Sup. Ct. Rep. 44; Sears v. Street Comrs. 173 Mass. 350, 53 N. E. 876; Rigney v. Fischer, 113 Ind. 313, 15 N. E. 594; Colfax Highway Comrs. v. East Lake Fork Special Drainage Dist. 127 Ill. 581, 21 N. E. 206; State ex rel. Horrall v. Thompson, 109 Ind. 533, 10 N. E. 305. That highways may not be taxed is no objection, as that is not the exclusive method of payment. Spring Creek Drainage Dist. v. Elgin, J. & E. R. Co. 249 Ill. 260, 94 N. E. 529; Oklahoma City v. Shields, 22 Okla. 265, 100 Pac. 574; New Orleans v. Warner, 175 U. S. 127, 44 L. ed. 101, 20 Sup. Ct. Rep. and has used the same for other purposes. A state legislature, being the paramount political power, can direct and control the officers in their disposition of the money of the county, and may forbid the payment by the treasurer of warrants issued on indebtedness occurring prior to a certain date, except with funds then on hand or subsequently received and belonging to the revenue of the county previous to such date. And in 14 Cyc. 1059, it is stated that in the assessment of benefits in drainage proceedings, the landowner should not be charged with general benefits which accrue to him as a member of the community, but Cuming County v. Bancroft Drainage Dist. 90 Neb. 81, 132 N. W. 927; Drainage Dist. v. Richardson County, 86 Neb. 355, 125 N. W. 796. In the absence of statute, drainage districts are not required to build highway bridges. Rigney v. Fischer, 113 Ind. 313, 15 N. E. 594; Heffner v. Cass, & Morgan Counties, 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201; Erie v. Erie Canal Co. 59 Pa. 174; 1 Page & J. Taxn. by Assessment, § 449. The county's liability for benefits to highways accomplished under this benefit plan, is not subject to any limitations except the special benefits received. This is a special limitation applicable to a special subject, and the limitations of § 26, article 10, of the Constitution does not apply. Riley v. Carico, 27 Okla. 33, 110 Pac. 738; Holley v. Orange County, 106 Cal. 420, 39 Pac. 790; Thompson v. Rearick, 33 Okla. 283, 124 Pac. 951; O'Neil Engineering Co. v. Ryan, 32 Okla. 738, 124 Pac. 22. Mr. Streeter Speakman, for defendants in error: The validity of the assessment against Lincoln county for alleged benefits to public highways is not an issue in this cause, and any decision based upon the same would be prejudicial to the rights of Lincoln county. O'Neil Engineering Co. v. Ryan, 32 Okla. 738, 124 Pac. 21; State ex rel. Decker v. Stanfield, 34 Okla. 524, 126 Pac. 241; Thompson v. Rearick, 33 Okla. 283, 124 Pac. 951. Even if the attempted resolution had been timely and a valid amendment, an attempt to offset damages with corresponding benefits to the alleged highways of Lincoln county would have been contrary to the drainage law. Cunningham v. Big Stone, 122 Minn. 392, only with such as are special. The benefit for which an assessment must be made must be laid to the betterment of the land for the purposes to which it may reasonably be put, and lands not benefited are not subject to assessment. And in 14 Cyc. 1061, the general rule is stated that the expense of construction of a drain cannot be assessed against particular land to an amount in excess of the benefits received by such land, and an assessment upon a tract of land in excess of the benefits received is void as to such exJ. D. C. cess. lege that said viewers and appraisers assessed the benefit to Lincoln county in the sum of $134,550. They allege the progress 142 N. W. 802; Crittenden County Ct. v. Shanks, 88 Ky. 475, 11 S. W. 468; Welch v. Bowen, 103 Ind. 252, 2 N. E. 722. It is the duty of the drainage district to made in the construction of said ditch and build all necessary bridges. Heffner v. Cass & Morgan Counties, 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201; Highway Comrs. v. Lake Fork Special Drainage Dist. 246 Ill. 388, 92 N. E. 902; State ex rel. Diffenbacher v. Lake Koen Nav. Reservoir & Irrig. Co. 63 Kan. 394, 65 Pac. 681; Franklin County v. Wilt, 87 Neb. 132, 31 L.R.A. (N.S.) 243, 126 N. W. 1007; Eyler v. Alleghany County, 49 Md. 257, 33 Am. Rep. 249; State ex rel. Hutter v. Papillion Drainage Dist. 89 Neb. 808, 132 N. W. 398; Richardson County ex rel. Sheehan v. Drainage Dist. 92 Neb. 776, 43 L.R.A. (N.S.) 695, 139 N. W. 648, Ann. Cas. 1914A, 546. the necessity of building said bridges, and the refusal of said defendants, as county commissioners, or either as ex officio drainage commissioners of said drainage district, to construct said bridges, as was their duty to so do, although often requested. It is further alleged, without the construction of said bridges, it will be impossible for plaintiffs to cross said ditch, and many of the farms situated in said district will be cut in two by said ditch, and the owners thereof will not have access to portions of their farms; that they have no adequate remedy at law, and they pray for a writ of mandamus, compelling defendants to meet and proceed to let the contract for the construc Mr. F. A. Rittenhouse also for defend- tion of said bridges. An alternative writ ants in error. Riddle, J., delivered the opinion of the court: On the 7th day of August, 1909, certain property owners residing in Lincoln county filed their petition in the manner provided by law with the board of county commissioners, for the purpose of creating a drainage district within said county. The petition was signed by the requisite number of property owners necessary to confer jurisdiction upon the county commissioners to proceed in the matter. Various proceedings were had, and there is no question raised as to the regularity of the proceedings in the organization of the drainage district and in letting the contract for the construction of the ditch. On February 26, 1914, J. W. Cherry, D. J. Norton, E. W. Hoyt, A. E. Patrick, and D. W. Collier, property owners in said district, filed their petition in the district court of Lincoln county against Ed Hillman, J. F. Collier, and R. A. Morrow, county commissioners and ex officio commissioners of Deep Fork drainage district No. 1, of Lincoln county, and Homer J. Wilkins, as drainage commissioner. Plaintiffs recite the various steps taken in the organization of said drainage district, and the letting of the contract to construct the ditch; that they are property owners, affected by such proceeding. They further allege that the view- | ers and appraisers appointed to view and appraise said property reported the necessity of building forty-eight steel bridges across said drainage ditch on the public highways, and designated the localities where said bridges were to be constructed; but said viewers and appraisers estimated the cost of construction of said bridges in the sum of $81,930. Plaintiffs further al of mandamus was issued, setting up substantially the foregoing facts. Plaintiff in error, Homer J. Wilkins, as drainage commissioner, filed his answer and return to the alternative writ, wherein he sets out the various steps taken by the county commissioners in the organization of said drainage district and the report of the viewers and appraisers and the confirmation thereof by said commissioners. He avers that the viewers and appraisers found the benefits to Lincoln county in the sum of $134,550, and the damage in favor of Lincoln county for the construction of said forty-eight steel bridges in the sum of $81,930. After legal notice by publication, a hearing upon said report was had, and the same was by the commissioners duly confirmed, and no appeal was taken therefrom by the county; and the action of the viewers and the order confirming same have become final. He also makes a part of his answer the order of the board of county commissioners, of date, November, 1910, as follows: Chandler, Oklahoma, Nov. 19, 1910. The board met pursuant to recess, all members present; journal of previous meeting read and approved. It is ordered by the board that, whereas, by mutual mistake, the assessment for damages in favor of Lincoln county in the Deep Fork drainage district No. 1 (by reason of the county being required to construct bridges), not having heretofore been spread of record, the county clerk be and he is hereby instructed to record in the drainage record of said district the assessment hereby made in favor of Lincoln county, on account of the construction of said bridges, the sum of $81,930, which said sum is hereby declared to be the assessment of damages due said |