from the reasons so stated for the support of the distinction, it is plain to us that counties have no such powers as cities or towns to or dain, in a corporate capacity what improvements shall be made, the free choice of agents to make them, and the discretion as to the rate of levy to be made for the same. Nor have counties the express power, nor the power necessarily implied, to raise a fund to pay damages for injuries, unless we imply this power, not from legislative grant, but from the liabil. ity implied in any case. General powers are not extended to counties, but the measure of their privileges must be found expressed by, or necessarily implied from, some statute." The doctrine declared in House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657, and the cases following it, is that the laws of this state concerning the building and repair of bridges imposed the duties upon counties to keep public bridges in such repair,that they are reasonably safe for travel, and gave them ample power to provide the means necessary to make such repairs, and that, therefore, there was an implied liability to answer in damages for injuries from a failure to discharge that duty.

But even if the doctrine of implied liability from a duty enjoined, and the provision of means for the performance of that duty, declared and applied in the bridge cases, is a correct and not an erroneous statement of the law, it yet remains for us to determine whether the cases named can be sustained on this ground, to do which we must ascertain whether the legislature has given the boards nia Constitution providing compensation for property damaged. Crowell v. Sonoma County, 25 Cal. 313.

Nor where a bridge caused an overflow of plaintiff's land. Davis v. Ada County (Idaho) 47 Pac. 93. Nor where building a jail obstructed a stream flooding plaintiff's premises. Downing v. Mason County, 87 Ky. 208.

Nor where a highway was built so as to cause overflow of water on plaintiff's land. Grimwood v. Summit County Comrs. 23 Ohio St. 600.

Nor where a dam was injured by the fall of a bridge which washed against it. Livermore v. Camden County Chosen Freeholders, 29 N. J. L. 245, 31 N. J. L. 507.

Nor where damages were caused to a mill dam by flooding, and plaintiff depended on the bridge approach to retain water. Jernee v. Monmouth County Chosen Freeholders, 52 N. J. L. 553, 11 L. R. A. 416.

Nor where an overflow was caused by putting an insufficient drain in the road. Packard v. Voltz, 94 Iowa, 277.

So, where an obstruction of a stream was caused by the manner in which the contractor built the bridge, the county was not liable. Smith v. Wilkes and McDuffie Counties, 79 Ga. 125.

And building a road so as to obstruct a mill race gave no right of action. Swineford v. Franklin County, 73 Mo. 279; Walter v. Wicomico County Comrs. 35 Md. 385.

A county was not liable for a nuisance arising from the condition of a jail. Wehn v. Gage County Comrs. 5 Neb. 494, 25 Am. Rep. 497; Threadgill v. Anson County Comrs. 99 N. C. 352.

Nor for a nuisance resulting from a privy being out of repair. Mobley v. Carter County, 5 Ky. L. Rep. 694.

of commissioners the power, and provided them with the means and instrumentalities, to cause the bridges in their respective counties to be kept in repair; for, unless this has been done, no liability can be implied, even though the doctrine of implied liability is correct.

The 1st section of the act to provide for the erection and repair of bridges (Rev. Stat. 1881, § 2885; Rev. Stat. 1894, § 3275), provides that, "whenever in the opinion of the county commissioners the public convenience shall require that a bridge shall be repaired or built over any watercourse, they shall cause survey and estimate therefor to be made, and direct the same to be erected." The 2d section (Rev. Stat. 1881, § 2886; Rev. Stat. 1894, 3276), provides: "If the estimate therefor shall exceed the ability of the road district in which such bridge is to be built, by the application of its ordinary road work and tax, to perform, the county commissioners may make an appropriation from the county treasurer to build or repair the same." The 3d section (Rev. Stat. 1881, 2887; Rev. Stat. 1884, § 3277), enacts that such board shall receive and appropriate all donations for the erection and repair of bridges; they shall also aid the same, when of general importance, by advances from the county treasury, and shall make such regulations in reference to payments and kinds of bridges as to them shall seem proper; provided, however, that if the board of commissioners of any such county shall not deem any such bridge of sufficient importance to make an appropriation from the county treasury for the sance anticipated from erecting a jail. Burwell v. Vance County Comrs. 93 N. C. 73, 53 Am. Rep. 454. Where a road was vacated no recovery could be had for injury to adjacent property, under Iowa Const. art. 1, § 18, providing that private property shall not be taken for public use without compensation. Brady v. Shinkle, 40 Iowa, 576; Ellsworth v. Chickasaw County, 40 Iowa, 571.

And where a road was vacated it was held that property was not "taken for public use." Coffey County Comrs. v. Venard, 10 Kan. 95.

Trespass in opening a road through plaintiff's land gave no right of action against the county. Hutchison v. Pulaski County, 11 Ky. L. Rep. 117.

A county was not liable for a barn damaged by fire through negligence of an employee of a county. Field v. Albemarle County (Va.) 20 S. E. 954.

Nor for fire started on the county poor farm. Symonds v. Clay County Supers. 71 Ill. 855.

In Fenton v. Salt Lake County, 3 Utab, 423, it was held that a county was not liable for injuries to land by the construction of canals diverting a watercourse, where the claim had not been presented to the board.

The cases affirming a liability for injuries to real property by reason of bridges, roads, ditches, and buildings, and for negligence of the county, will be found below under the appropriate subheads. In SCHUSSLER V. HENNEPIN COUNTY COMRS. a county was held liable for erecting a dam in a lake, destroying a mill dam without compensation.

And for flooding land by reason of bridge abutments, a county was liable under Cal. Const. 1879, art. 1, § 14, providing that private property shall not be damaged for public use without compensation. Tyler v. Tehama County, 109 Cal. 618.

And was liable for damages by building an abut

to make the appropriation, and cannot rightfully do so. It certainly cannot be claimed that, under these sections, the board of commissioners have any general power to make appropriations of county funds for the repair of bridges. Such appropriations can only be made in certain cases and upon certain contingencies; and in cases where they cannot make such appropriation, no way is provided by which they can compel such repairs to be made by the road supervisors, except, perhaps by expensive and frequent litigation, which was certainly not the intent of the legislature, This act was considered and construed by this court in Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 226, which was an action on a contract made by the county to keep the approaches to a bridge in repair. Worden, J., speaking for the court, said: "The mode in which the county is bound to perform that duty is specifically pointed out by statute and a contract which contravenes that mode and substitutes another must be void. If the contract sued on is valid, and has been broken, the damages of the appellant must be paid out of the county treasury. But it was not contemplated that the expense of repairing bridges should be paid out of the county treasury, except upon a contingency. By the 1st section of the act above set out, when a In an action for negligently constructing and | locating a bridge evidence by an expert who examined the remains of the abutment and foundation and mortar, two years after the bridge washed away, in order to testify as to the material and care of the work, was competent. Harford County Comrs. v. Wise, 71 Md. 43.

In that case it was held that skilful construction involved putting suitable materials together in the proper manner upon a site adapted to the structure built and the place where the bridge was built could not be disregarded; and a county was liable where a bridge above a mill was carried away by the flood and injured plaintiff's dam, where the location, condition, and construction of the bridge were negligent, and it was carried away for that reason, although the damage was caused by an unusual height of flood.

And a county was liable where a county bridge on a public highway was constructed so that the abutment interfered with the passage of water in time of flood and injured a mill dam, and it would have been practical to have provided for the flow of water. It was further held that the plaintiff, was not guilty of contributory negligence in building a dam at that place, where it was built before any bridge was constructed. Riddle v. Delaware County, 156 Pa. 643.

Under N. J. Rev. p. 86, § 9, providing that when a township or county which is chargeable by law with the erection, rebuilding, or repairing of any bridge shall wrongfully neglect to erect, rebuild, or repair the same, by reason whereof any person shall receive an injury in his person or property, such person may have his action against such municipal body, a county was not liable where the owner of a mill dam depended upon the abutments of an approach to a bridge to retain water, and by reason of defective planking the earth washed away flooding his mill, but the bridge could still be used. Jernee v. Monmouth County Chosen Freeholders, 52 N. J. L. 553, 11 L. R. A. 416.

In Jernee v. Monmouth County Chosen Freehold. ers, 52 N. J. L. 553, 11 L. R. A. 416, the case of Ripley v. Essex & Hudson Counties Chosen Freeholders, 40 N. J. L. 45, was distinguished, as in that case the

|

bridge is to be repaired or built, the commissioners are to 'cause surveys and estimates therefor to be made, and direct the same to be erected.' Why were surveys and estimates to be made? The 2d section answers this question. It is because the appropriation from the treasury depends upon this question whether the estimate exceeds the ability of the road district, by the application to the work of the ordinary road work and tax of the district. It was not contemplated that the expense should be borne by the county treasury, except the excess beyond the ability of the road district. If this contract were to be held valid, the county would have to pay all the expense of the repairs, in the way of damages, no portion falling upon the road district. The contract is in violation of the provisions of the statute and void. The 11th section of the statute, making it the duty of the commissioners to cause all bridges in the county to be kept in repair, must be construed in connection with the 1st and 2d. While the commissioners must cause the bridges to be kept in repair, the expense must be borne by the road district, so far as it is able, according to the the 2d section, and the residue by the county. The 3d section provides that the commissioners shall aid in the erection and repair of bridges, when of general importance, by advances from the bridge owed the duty of providing a sufficient draw for safe passage, but in this case the bridge merely rested upon a dam, and it was only incidentally obliged to maintain the dam far enough to secure its own stability, and the dam belonged to the mill owner.

A county was not liable for injuries caused by placing a bridge abutment so as to divert water and wash away land, under Cal. act 1855 (Wood's Dig. p. 1850), making it the duty of the board of supervisors to divide the county into road districts and to appoint a road overseer who shall cause bridges to be made when necessary, and to keep the same in good repair. It was said that if the bridge was unlawfully placed in the channel by the overseer, the remedy should be against him by whom the injury is committed. Crowell v. Sonoma County, 25 Cal. 313.

But there is now a liability under the present Constitution. See Tyler v.Tehama County, 109 Cal. 618.

And no recovery could be had for damages caused by an obstruction in the stream made by the contractor in building a public bridge. It was not the duty of the county authorities to supervise the work done by the contractor in building a free public bridge over a stream dividing two counties, and the counties were not liable to one having a mill on the stream which was damaged by an obStruction caused by the faulty manner in which the work was executed. Smith v. Wilkes & McDuffie Counties, 79 Ga. 125.

So, in the absence of statutory liability, a county was not liable for damages sustained by reason of negligence in the construction and maintenance of bridges, causing overflow of plaintiff's land. Davis v. Ada County (Idado) 47 Pac. 93.

Under a statute making counties liable for injuries to travelers on account of bridges they were not liable for other injuries.

A county was not liable for injuries caused to stock running at large on account of a defective public bridge, under Ala. Code 1886, § 1546, and Code 1876, § 1692, requiring that bridges erected by contract with the county commissioners shall continue safe "for the passage of travelers and other

county treasury. The contract cannot be up held by virtue of this section. . . . The obligation to aid by advances from the county is not unconditional, as is seen by the proviso to the section. It depends upon whether or not the board of commissioners shall deem the bridge to be of sufficient importance to make an appropriation from the county treasury for the erection or repair thereof. The duty of the board in making or withholding advances from the county treasury involves a question of judgment as to the importance of the bridge, and this judgment must be exercised as to the importance of the bridge at the time an advance is made. The board could not, by a contract to make advances in the future, preclude itself or its successors from the right and duty to determine, at the time an advance is sought, whether the bridge has the importance required, in order to justify an advance from the county treasury."

It follows, therefore, that the board of commissioners can only cause bridges to be repaired by an appropriation of county funds to pay the expense when the road district is not able by its road work and tax to make the same, and the commissioners deem the bridge of sufficient importance to appropriate the county funds for that purpose, and in such case the expense must be borne by the road district so persons." Lee County v. Yarbrough, 85 Ala. 590.

An action could not be maintained against the board of chosen freeholders for injuries sustained by a mill dam by reason of the fall of the county bridge under N. J. Laws 1859, chap. 219, § 21.providing that if any damage shall happen to any person by means of the insufficiency or want of repair of any bridge upon any public road the township or county in which the same shall be situated is or shall be liable to make all repairs, and the person sustaining such damage shall have the right to recover the same; as this act was only to secure the repair of roads and bridges for the benefit of travelers, and was not intended to include real estate. Livermore v. Camden County Chosen Freeholders, 29 N. J. L. 245, Affirmed 31 N. J. L. 507.

In New Jersey and Louisiana a county is held liable for negligence in operating a draw bridge, but this liability is denied in New York.

In Houston v. Police Jury, 3 La. Ann. 566, where the plaintiff had passed through a draw bridge controlled by the county, and was prevented from returning by the draw not being opened for the passage of plaintiff's boat, through negligence on the part of those for whose act the parish was responsible, the parish was bound to repair the damage caused thereby. It did not appear that the defendant assumed any right to interfere with or obstruct the navigation of the river, and the obligation to have the draw opened whenever necessary for boats to pass was recognized.

far as it is able, and the residue by the county. If this is a proper construction of said act,and it was so decided in Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 226,-the board can in no case pay for repairs out of the county treasury, unless the road district first applies its ordinary road work and tax in making the repairs. Then the board may, if it deem the bridge of sufficient importance, pay the residue out of the county treasury. So that, in all cases where there is a refusal to apply the ordinary road work and tax of the road district in repairing a bridge, the only way they can cause the repairs to be made is by compelling the road supervisors to make such repairs, and no power has been given or adequate means provided by which they can coerce him or any other of ficer to make such repairs. If it were conceded that when the duty is imposed upon boards of commissioners to cause all bridges to be kept in repair, and they have power to make the appropriations from the county treasury for that purpose, there is an implied liability to respond in damages for an injury resulting from a failure to discharge that duty, yet no such liability could be implied in this state, for the reason that the boards of commissioners have no power to appropriate the county funds for such purpose, except upon a not to take them down, but to lower them-as to enable him to approach the bridge with such diminished speed as would permit the removal of the draw. Ripley v. Essex and Hudson Counties Chosen Freeholders, 40 N. J. L. 45.

Where a steamer was detained upon a river in consequence of the defective construction of a bridge a county was not liable in the absence of any statute. Georgia Const. (Code, § 5152) providing that justices of the peace have jurisdiction over cases of injuries for damages to personal property, did not give jurisdiction to the justice in this case, as this was not damage to the property, but to the company. White Star Line S. B. Co. v. Gordon County, 81 Ga. 47.

And in an action against a county for obstructing navigation of the Tittibawassee river, it was held that the determination that it was necessary to build a bridge across that river, and the whole action of the board in relation thereto, were legislative, and whether any portion was usurpation or not, no action could be maintained against the county for any consequences resulting therefrom, and the same rule would apply as though the bridge was built by the legislature. Larkin v. Saginaw County, 11 Mich. 88, 82 Am. Dec. 63.

An action could not be maintained against a county for negligence in operating a drawbridge, by reason of which an approaching tug was inJured. No new liability was created by N. Y. Laws 1892, chap. 686, declaring counties to be municipal corporations, as under that law a county could only be sued upon a cause of action for which it was liable. Godfrey v. Queens County, 89 Hun, 18.