tracts. The overruling of those cases will not | might be properly overruled on other grounds produce uncertainty in titles, or introduce doubt and confusion in questions of property or contracts. Under such circumstances, it is the duty of the court to correct its own errors, and the doctrine of stare decisis cannot be successfully invoked to perpetuate them. Paul v. Davis, 100 Ind. 422; Rockhill v. Nelson, 24 Ind. 422, 424; Hines v. Driver, 89 Ind. 339; Linn v. Minor, 4 Nev. 462: Mc Dowell v. Oyer, 21 Pa. 423. This case is within the principle established in Hines v. Driver, 89 Ind. 339, and Paul v. Davis, 100 Ind. 422.

It is urged by appellee that, by holding the county liable in such cases as this, the boards of commissioners will be convinced that it is cheaper to keep the bridges in repair than to pay damages for injuries. The enforcement of the penal statutes, and the creation of personal liability, if it does not now exist, for injuries caused by neglect of official duty, would probably be more convincing to the officer than taking the public funds to pay such damages. While the doctrine declared in the bridge cases from liability for infringement of letters patent. | May v. Ralls County, 31 Fed. Rep. 473.

In May v. Johnson County, Fed. Cas. No. 9, 334, a county was held liable for an infringement of a patent in the construction of a jail. The liabilities of counties as such were not discussed, and do not seem to have been questioned, the court saying, however, that "if the subject-matter of a patent possesses the requisities of novelty and utility it is protected against the encroachments of society, and no one has the right to use it without paying for it."

And in May v. Fond du Lac County, 27 Fed. Rep. 695, a county was held liable for an infringement of a patent in the construction of a prison. No question seems to have been made as to the county's liability, but the question was as to the infringement, novelty, etc.

stated in this opinion, we prefer to base our action on the broad ground that counties, being subdivisions of the state, are instrumentalities of government, and exercise authority given by the state, and are no more liable for the acts or omissions of their officers than the state. The case of House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657, and the cases following it, so far as they declare the doctrine of implied liability of counties for negligence of their officers in erecting or keeping bridges in repair, are overruled.

It follows that the court erred in overruling the demurrer to the complaint and the motion in arrest of judgment. There are other reversible errors in the record, but it is not necessary to consider them.

Judgment reversed, with instructions to sustain the demurrer to the complaint, and for further proceedings not in conflict with this opinion.

All concur.

for an infringement should show such action. It was said that if the Iowa laws did not confer on the county the right to sue and be sued, the plaintiff would be without remedy.

So, in bolding that a county was liable for the infringement of a patent in the use of an improvement in the construction of prisons, it was also held that the Iowa Code, § 2610, providing that before suit is brought upon an unliquidated claim the same must be presented to and demand for payment be made of the board of supervisors, should be enforced in United States courts, and a recovery could not be had where such claim was not so presented and acted on. May v. Jackson County, 35 Fed. Rep. 710; May v. Cass County, 30 Fed. Rep. 762.

But in May v. County of Juneau, 30 Fed. Rep. 241, it was held that a county was not liable for the infringement of a patent where its officers had no knowledge of any infringement, and the actual use did not occur until after the expiration of the patent. It was further held that the assignment in this case did not authorize a recovery for past in

In May v. Logan County Comrs. 30 Fed. Rep. 250, and May v. Saginaw County, 32 Fed. Rep. 629, it was held that an assignment after an infringement of all right, title, interests, claims, and demands under a patent made by an administrator or patentee, approved by a court of competent juris-fringements. It was said that the county would diction, authorized a suit against the county by the assignee, for an infringement of the patent, denying May v. Juneau County, 30 Fed. Rep. 241, on the ground that the cases on which this decision was made do not sustain the doctrine deduced.

In May v. Logan County Comrs. 30 Fed. Rep. 250, Jacobs v. Hamilton County Comrs. 1 Bond, 500, was disapproved, and it was held that the state could not exempt counties from liability for an infringement of patents, nor has it attempted to do so, as the patentee's rights are defined by Congress, which has exclusive control.

In May v. Saginaw County, 32 Fed. Rep. 629, the cases of May v. Buchanan County, 29 Fed. Rep. 469, and May v. Cass County, 30 Fed. Rep. 763, were distinguished on the point that the remedy was by demand of the board of supervisors, under Michigan Constitution providing that exclusive power is vested in the board of supervisors to adjust all¦ claims against their respective counties, and the sum so fixed shall be subject to no appeal, as this did not apply to torts and as the statutes in those cases were different.

But in May v. Buchanan County, 29 Fed. Rep. 469, it was held that Iowa Code, § 2610, providing presentation of claim to the board of supervisors before bringing an action, applied to a suit for infringement of a patent by a county, and a petition

not be liable in any case, following Jacobs v. Hamilton County Comrs. 1 Bond, 500. But see May v. Logan County Comrs. 30 Fed. Rep. 250.

And in Jacobs v. Hamilton County Comrs. 1 Bond, 500, a county was not held liable in damages for infringement of a patent in the construction of a county prison. It was said that the contractor would be liable. But see May v. Logan County Comrs. 30 Fed. Rep. 250.

VI. Damages by defaulting officer.

It is generally held that a county is not liable for damages caused by a defaulting officer where the county has not received the benefit of the money or it has not been paid into the county treasury: but a county was held liable for money collected by its attorney authorized to collect taxes, and also in some cases arising under particular statutes.

So, a county was not liable for the tortious act of its treasurer in collecting excessive taxes from the plaintiff, and appropriating them to his own use. Estep v. Keokuk County, 18 Iowa, 199.

A county was not liable to a city for money collected and embezzled by the county treasurer where he acted as agent of the city in collecting such money. The court said that "it is intimated, but not proved, that he applied the moneys to county purposes, but it was conceded that he never

MINNESOTA SUPREME COURT.

So, a county was not liable for money collected by a county treasurer for a redemption of land sold for taxes, under Neb. Rev. Stat. p. 329 (Rev-year's taxes of such county, a county was required enue Law 1866, § 68) providing that on the redemption by an owner or occupant by payment to the county treasurer, he shall give receipt therefor to the person redeeming the same and file a duplicate with the county clerk, and hold the money paid subject to the order of the purchaser, his agent or attorney, where it was not shown that the money was paid into the county treasury. Eaton v. Cass County Comrs. 11 Neb. 229. In this case the plain-held that it was no defense that the bond taken tiff claimed that he was ignorant for several years that the money had been paid, and there evidently had been a change in the county treasurers.

42 Me. 552, 66 Am. Dec. 298; Fletcher v. Phelps, | conferred any authority or power upon the 28 Vt. 257; Gould, Waters, § 56; South Carolina v. Georgia, 93 U. S. 9, 23 L. ed. 783.

So, under N. Y. Laws 1869, chap. 907, § 4. amended by Laws 1871, chap. 283, providing that certain taxes assessed against a railroad in a town shall be paid to the treasurer of the county and used by him to purchase bonds, issued by the town in aid of the But in Bladen County Bd. of Edu. v. Bladen railroad, a county was liable to a town for moneys Comrs. 113 N. C. 379, where the county commissionso collected by the treasurer and misappropriated!ers misapplied a fund belonging to the board of

There is nothing in the decisions of this court necessarily committing it to any extension of this untenable distinction to wrongs other than negligence. Indeed, the tendency is the other way.

Peters v. Furgus Falls, 35 Minn. 549; Weltsch v. Stark, 65 Minn. 5; Woodruff v. Glendale, 23 Minn. 537; Thompson v. Polk County, 38 Minn. 130; Gould v. Sub-District No. 3, 7 Minn. 203. Towns and counties are liable for the improper exercise of powers which are within the general scope of their duties, but not for mere negligence or failure to perform the duties imposed by law.

Altnow v. Sibley, 30 Minn. 186, 44 Am. Rep. 191; Snider v. St. Paul, 51 Minn. 466, 18 L. R. A. 151.

It has not been decided in this state that a town or county is not liable for damages arising from a trespass or other active wrong done by its official board colore officii.

Gould v. Sub-District No. 3, 7 Minn. 203, cited in Bank v. Brainerd School Dist. 49 Minn. 106; Dosdall v. Olmsted County, 30 Minn. 96, 44 Am. Rep. 185.

In this case the county answers and avers that it has built and maintained the dam lawfully. The defense failing, it is certainly proper that the mischief which has been committed should be undone and its further commission restrained.

The county does not plead ultra rires as it might do if sued on an authorized contract. It ratities and confirms the ultra vires acts of its official board and so becomes itself the aggressor.

Salt Lake City v. Hollister, 118 U. S. 256, 30 L. ed. 176; Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157.

The dam in question is a nuisance, and no sort of a municipal or public corporation has a right to maintain it.

plaintiff ever presented his claim to the court of county commissioners to be passed upon or allowed by Ala. Code 1886, § 902, requiring presentation of claims. Roberts v. Cleburne County (Ala.) 22 So. 545.

And Ala. Code, 88 775, 2141, providing that no action can be brought against the county until the claim or demand has been presented within twelve months after it accrues or becomes payable, applies to suits for damages for injuries from defective bridges under a statutory liability. Barbour County v. Horn, 41 Ala. 114.

education by directing the disbursements under a¦ a bridge where there was no evidence that the mistake of the law, it was held that the county was not liable, as it would follow that the courts would be required to enforce a levy of a sufficient tax upon the property of the county to replace the amount belonging to the school fund, which had already been wrongfully but honestly expended for the support of the poor. It was further held that all the money collected for educational purposes should have been paid over by the sheriff to the county treasurer in his capacity as treasurer of the board of education, and held by him subject to the orders of the board, and he should not have paid out the fund on the order of a county com- And under Iowa Code, § 2610, providing that no missioner; and it was held that the treasurer was action shall be brought against any county on an the one who made the misapplication. It was said unliquidated demand until the same has been prethat a recovery could not be had even against him.sented to the board of supervisors and payment demanded, where a claim had been preVIII. Presentation of claims before county board as sented to the county of $500 damages for injuries a condition precedent to suit.

received on account of a defective bridge, and an action was brought for that amount and increased There is some conflict as to whether it is requisite by an amendment, no recovery could be had for a that a claim for tort or negligence shall be pre-greater amount than that presented to the board sented to the county board for auditing before a of supervisors. Marsh v. Benton County, 75 Iowa, suit can be maintained for damages, some cases holding that it is absolutely essential, and others holding the contrary, and that it would be improper to allow the county officials to pass on matters involving their own actions.

An action could not be maintained against a county for injuries from the falling of a public bridge, where the claim had not been presented to the county board for allowance, under Ala. Code 1876, § 2903, providing that suit must not be brought against a county until the claim has been pre. sented to the court of county commissioners and disallowed or reduced, and § 827, requiring claims to be itemized and sworn to, and § 832, providing that claims not presented within twelve months after they accrue are barred. Schroeder v. Colbert County, 66 Ala. 137.

So, a county was not liable for damages from a defective bridge where the claim had not been presented to the county commissioners and disallowed under Ala. Code 1876, § 2903, providing for presentation of claims and demands to the commissioners' court. Such claim should be itemized and sworn to under § 827, prohibiting the commissioners from allowing any claims not itemized or sworn to. Schroeder v. Colbert County, 66 Ala.

137.

469.

Under Iowa Code, § 2610, it was sufficient if the board was informed of the amount of the claim and the grounds on which it was made, sufficiently to enable it to understand the claim. Dale v. Webster County, 76 Iowa, 379.

And under Iowa Code, § 2610, the plaintiff was not required to produce his evidence in making his claim before the county board, but it was sufficient if his claim was presented with sufficient clearness to enable it to investigate the facts. Homan v. Franklin County, 98 Iowa, 692.

And damages for future loss, pain, and suffering were properly allowed where the claim presented to the board stated that the plaintiff was seriously and permanently injured, and the petition was for permanent disability. Homan v. Franklin County, 98 Iowa, 692.

Where the petition alleged that the claim was duly verified and presented to the county board, it was held that under the general issue it was for the court to determine whether plaintiff had the right to bring an action, and it was not necessary to submit this to the jury. The presentation of the claim for injuries from a bridge to the county board was held to be a "demand," and that some of the injuries in the trial were a little greater than those in

And a county was not liable for the falling in of the statement was immaterial. Homan v. Franklin

1 Dill. Mun. Corp. § 374, note; Petersburg v., Applegarth, 28 Gratt. 321, 26 Am. Rep. 357; Brayton v. Fall River. 113 Mass. 218, 18 Am. Rep. 470; Harper v. Milwaukee, 30 Wis. 365; Franklin Wharf Co. v. Portland, 67 Me. 46, 24 Am. Rep. 1; Hannibal v. Richards, 82 Mo. 330; Wood, Nuisances, § 742.

Buck, J., delivered the opinion of the

court:

until interfered with by the defendant's erection of the dam, he was enabled to store and use the waters of this stream, by means of said pond and other facilities possessed by him, and whereby said mill was propelled and operated for his use and profit. The defendant erected said dam about 5 feet in height, and, ever since its erection, has maintained the same, whereby said stream has been obstructed and held back except at times when the stage of water in Lake Minnetonka is sufficiently high to flow over said dam. The dam so erected and maintained is 5 inches above the natural bed of the stream, and the sole purpose of defendant in erecting the dam and obstructback and retain the water in Lake Minnetonka for the purpose of increasing the volume of water therein, and maintaining a uniform quantity and stage of water in aid of navigation, the lake being an inland, navigable one. The action is one to recover damages alleged to have been sustained by plaintiff by reason of the construction and maintenance of said dam, and for an injunction restraining and a claim by the board of commissioners, the claimant might maintain an independent action without taking the appeal, but the complaint to recover for injuries caused by a defective bridge should show that the county had notice, prior to the time of the accident, that the bridge was unsafe.

The board of county commissioners of Hennepin county in the year 1893 erected a dam across Minnehaha creek, the natural outlet of Lake Minnetonka, and about 3 miles below said lake, under the supposed authority of Special Laws 1891, chap. 381, for the purpose of raising the natural flow of the stream was to hold ing and maintaining a uniform height of water in the lake, in aid of navigation. The plain tiff at the time of the erection of the dam, and for many years prior thereto, owned a piece of land about 3 miles below this dam, upon which he had erected and used a grist-mill operated by the water of this stream; and, to this end, plaintiff had provided the necessary wheels, pond flumes, and raceway power, and, County, 98 Iowa, 692. See former appeal, 90 Iowa, 185. Under Iowa Code, § 2610, providing for presentation of claims to the board of supervisors before bringing an action, a suit for an infringement of a patent was within the provisions of such section, and a demand was held to be a necessary condition precedent. May v. Buchanan County, 29 Fed. Rep. 469; May v. Jackson County, 35 Fed. Rep. 710; May v. Cass County, 30 Fed. Rep. 762.

And under Utah Sess. Laws 1878, p. 4, providing that no action shall be commenced against any county until the claim, demand, or right of action shall be disallowed, an action for injuries to land by constructing canals near the same and diverting a natural watercourse, and for equitable relief, was dismissed because it was not shown that the statute was complied with. Fenton v. Salt Lake County, 3 Utah, 423, 4 Utah, 466.

And under Cal. act March 20, 1855, § 24, providing that no person shall sue a county in any cause for any demand unless he shall first present his claim to the board of supervisors for allowance and the same shall be rejected, an action would not lie for extending a street through the land of plaintiff without providing any compensation unless the claim had been presented for auditing. McCann v. Sierra County, 7 Cal. 121.

|

In Jackson County Comrs. v. Nichols, 139 Ind. 611 which was an action for personal injuries sustained by a defective bridge, it was held that it was not necessary to prove that the plaintiff had filed a claim with the county board before he had filed the complaint in this case.

And it was not necessary for the plaintiff in an action for injuries from a bridge to show that his claim had been disallowed before bringing his action. Sullivan County Comrs. v. Arnett, 116 Ind. 438.

In Hancock County Comrs. v. Leggett, 115 Ind. 544, where the plaintiff stated that he had filed his claim before the board, and they had disallowed the same, and it was contended that his bill of complaint was insufficient, it was held that it was for the defendant to show whether or not the claim had been properly presented under Ind. Rev. Stat. 1881, §§ 5758-5769, providing that no court sball have jurisdiction of any claim against a county unless the claimant shall file his claim with the board of commissioners and have the same disallowed.

And under Cal. Pol. Code, 4072, prohibiting the In Fulton County Comrs. v. Maxwell, 101 Ind. 268, board of supervisors from allowing an account where the county was sued for injuries caused unless properly made out, itemized, and verified, by a defective public bridge on the highway, it was where an action was brought against a county for held that Ind. Rev. Stat. 1881, § 5769 (Acts 1879, p. 106), tearing down an inner wall of plaintiff's building providing for filing claims against counties and and severing from the same a permanent fixture, to presenting the same to the board of county comwit, a metallic vault, the complaint was held defec-missioners, and § 5760, providing that no court shall tive in not alleging the manner in which plaintiff complied with this section of the Code. Rhoda v. Alameda County, 52 Cal. 350.

But in Rhoda v. Alameda County, 69 Cal. 523, an amended complaint showing a compliance with the statute by the presentation to the board of county commissioners stated a cause of action.

And Ind. act March 9, 1885 (Elliott's Supp. § 1948), providing that on the rejection of a claim by the board of county commissioners the plaintiff may apply or at his option bring an action against the county, applies to claims sounding in tort. Allen County Comrs. v. Creviston, 133 Ind. 39.

In Posey County Comrs. v. Stock,11 Ind. App. 167, it was held that under Ind. Rev. Stat. 1894, $ 7858, providing for an appeal on disallowance of

have jurisdiction of any claim against any county except as provided in this act, repeal Rev. Stat. 1881, § 5771 (act of 1852), providing for bringing an original action on disallowance of claim, instead of appealing.

After this case was reversed, and on the 27th of March, 1886, plaintiff began another action, and it was held that Ind. Acts 1885, p. 80, providing that if a claim is disallowed the party may appeal or bring an action, was not retrospective, and the only remedy for this plaintiff was to appeal from a disallowance of his claim by the commission. Maxwell v. Fulton County Comrs. 119 Ind. 20.

But in May v. Saginaw County, 32 Fed. Rep. 629, it was held that the Nebraska Constitution providing that exclusive power is vested in the board of