The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-03-29

rule in efferting such settlement. and
whether such rule is equitable or in
! equitable the courts have no concern.
Burleigh county vs.. kidder count!.
: y. l.. -. l23 y. W. 1853.
Roads and Bridges.
n second and third questions ara
more difficult 20 answer. In behalf
Of Mountrail county it is strenuously
~Gontended that Ward county should
be charged in such settlement with
the amounts expended for roads aud
bridges remaining therein. and such
contention is challenged in behalf Of
Ward county with equal vigor. Are
roads and bridges. or either OF them
which have been constructed by Ward
county II which remain therein
public propert" owned by. the or
isinal county within the meaning uf
subdivision :. section 1885 Z. e. ana
that therefore the amount of OUT
standing bonds given or money paid
therefore must. pursuant 10 said Sec
ton, be deducted from the total in
debtcdness of Ward county? IN or
der ~ answer such question in ihe
affirmative We are required 10 hold
that such roads and bridges are the
property OF Ward count In behalf
Of Mountrair county ii is insisted that
Ward county has at least. an insur-
able interest in such roads and bridg-
IS and that such insurablc interest
constitutes ownership within the stat
ute. toncedins The correctness of
such promise. does il necessarily fol-
low that the conclusion is sound: IL
is no doubt true that a county or
other governmental subdivision of I'll.
state which has constructed bridges
! under Legislative authority has a qua:-
lied interest therein. hut does such
qualified interest rise 10 the dignity of
ownership within the iegislatiy. in
tent as disclosed in the statute in
question: In other words. did the
county with q property in which ii
had merely a qualified interest or
ownership. and that. as a mere trus-
tee for the general public? Section
4la Of Elliott on Roads and
Streets cited by counsel for Noun
tran county. contains the statement
that the public and not the local
government subdivisions. are the own
"rs of such bridges Counsel for
Mountrail county have cited umer
Gus cases holding that a county or
"tner governmental subdivision Of "A
state may maintain an action 20 re-
cover for injuries TO roads and ridges
constructed by them, but these cases
merely hold that such governmental
'N''A iSl'IiS nav al IUdIDItQ interest,"
only in such roads and bridges. and
the courts in most of the cases are
careful to thus restrict their holdings.
II is generally held. however in ac.
cordance with MIR. Elliott's statement
as above. that the public and not the
local governmental subdivision is the
owner thereof. the latter in a sense
being the trustee thereof for the GEN
eral public.
1T would seem plain that such a
qualified interest or ownership as en-
titles the county to insur it's bridges
or to enable it to maintain actions for
injuries to its roads and bridges, does
not constitute such ownership as is
contemplated in subdivision >, section
1855 K. c. which is to serve as a basis
OF settlements between old and new
counties where a division has taken
place. If the governmental subdivi-
sion is the owner in the common and
general acceptance of the term then
the courts in the many authorities cit
ed by counsel for Mountrail county
would have placed their decisions un-
on that ground instead Of sustaining
the county's right to recover because
Of its qualified interest in such
roads and bridges. These authorities
serve to show that the county is not
the owner except TO Il qualified extent.
We are agreed that when the lcgis-
lature in section 1886 supra, prescribe
ed that from the total Indebtedness of
the old county there should be deduct
ed the amount of outstanding bonds
given or money paid for public prop
erty owned by and remaining within
the limits Of the original county it
intended to embrace only such public
property as the old county nae a pro-
prietory interest in. In other words,
that property owned by the public
4 Penpr11lv tho CnrrfS. In1,ir~ n $500.
qualified interest therein as above
stated. was not contemplated by the
legislature In the enactment Of said
section. A very important side light
~favoring this construction is the fact
that the legislature. in providing for
settlements between townships where
a change Of township lines is made,
was careful to provide that road
scrapers. plows. etc, shall be taken in
TO account In executing a settlement
between the townships. but no men.
ton is made Of the highways. Sec.
1927 r. c. If roads and bridges are
to be deemed an asset of the old
county in affecting a settlement be-
tween the old and the new county it
ture did not treat them as assets of
the old township in prescribing a rule
for affecting a settlement between the
townships.
Belongs { Public.
OF course it is no doubt true that
before material for roads and bridges
is actually appropriated to the public
use as we'll as after it ceases to be |
devoted to such use the county would |
have a proprietary interest and own.
ership therein but while 1t IL devoted !
to such public use 1t belongs to the
public and not to the county except in
u qualified sense az above stated. The
decision Of this court in Vail VS.. Town
Of Armenia. 4 n. D.. 239 Il the effect
that h township exercises merely a
governmental function Of the state as
to highways and bridges and hence is |
not liable for failure to repair the
same. is inconsistent with the thOry !