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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 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

Plaintiff's testimony is as follows: anguish,” etc.

A. The place was between Altamont and Defendant assigns as error:

(1) Over- Fourth 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: “You

turned off Fourth street on Market, and 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 pile of rocks and fell, and, as I saw him the growth of the city; and there may be fall, I got my feet out of the stirrups. circumstances where it is not necessary to

A. I ran my horse around and tried to improve the width of streets for the re. go through where the abutment was, and quirement of travel. All that is required when the horse saw those rocks he turned in such cases is that the city see that a

and shied, and that is why he fell. sufficient part of the street required for

After plaintiff had testified that he had use shall be in a reasonably safe condition

gone 30 or 40 feet upon Market street, he for the convenience of travel. And if in

was asked and answered the following questhis case you find that the street was safe

tions: and in good order in sufficient width to

Q. When you turned and got 30 or 40 have been traveled by the plaintiff with feet away, you saw the condition of the ordinary care and prudence, no damage street well? occasioned by the plaintiff's horse becoming

A. Yes, sir; when I got on it. frightened and getting outside of the usual Q. And you saw the only safe place was traveled portion of the street to the spot to go on the north side, the extreme north where the accident took place can be re- side of the little path? covered against the defendant.”

A. Yes, sir. The evidence disclosed that plaintiff, a policeman, was injured while riding a horse And again: along Market street, a public street of the Q. When you looked ahead and discovered defendant city; that, in response to a call this unsafe condition, you discovered the for an officer, he was proceeding upon a path to the right? route that he considered the most direct to A. Yes, sir. the place to which he had been called; that, Q. You looked at that, and that looked after he had entered Market street travel safe? ing at a gallop, he met a wagon covered A. Yes, sir; to me. with a sheet or tarpaulin, which he desig- Q. And you undertook to go around that nated as an asphalt wagon, moving toward traveled path? him upon a crooked or zigzag pathway A. Yes, sir. through said street; that he was

Q. Was that in the street ?

a

unac

SO.

A. At the edge of the street.

main open through its entire width is an The street commissioner of the city tes invitation on the part of a municipal cortified, upon cross-examination:

poration to the public to use the same for Q. State to the jury what was the con

customary travel; and an individual usdition of that street ?

ing such street in the ordinary way has a A. There had been a number of loads of right to presume that he may go thereon rock dumped promiscuously into the street. free from any save the usual hazards of

travel. Q. How much of a space would it leave

If he is exercising ordinary and for people to pass ?

reasonable care for his own safety, he may A. Just a very narrow driveway.

assume that the municipality has done likeQ. Plenty of room for a person to ride wise; and if, as in the instant case, he is along?

using such street in pursuit of his lawful A. Yes, sir; plenty of room to drive occupation, riding upon a well-broken horse through single file.

ordinarily sure of foot, at not an unusual Q. That street was used continuously? speed, and such animal, without fault upon A. Every day or

the part of his rider, becomes frightened Q. People passed around there without and temporarily unmanageable, and, by any trouble ?

reason of coming in contact with an obA. Yes sir; every day I suppose. Had a struction or a defect in a street negligently very narrow driveway to pass through. created or permitted to remain therein by The evidence disclosed that the street had

a city, falls and injures such rider, the remained in the condition above described,

municipality is liable therefor. for about a year prior to the injury.

"It is clear that if a horse of ordinary It is urged by defendant that the defect gentleness merely shies or swerves to one in the street was not the proximate cause

side so that the driver does not in reality of the injury; and that the same would not lose control over him, and injury is caused, have occurred had plaintiff not lost control without fault of the driver, by his thus of the horse upon which he was riding when coming in contact with an obstacle or defect it became frightened at the cover of the in the highway, the municipality will be moving wagon upon such street. It is also liable.” 2 Elliott, Roads & Streets, 3d ed. the contention of defendant that it was not $ 793; Spaulding v. Winslow, 74 Me. 528; bound to keep the entire width of the street Aldrich v. Gorham, 77 Me. 287; Hinckley v. in repair.

Somerset, 145 Mass. 326, 14 N. E. 166; The rule established in this state is that, Meisner v. Dillon, 29 Mont. 116, 74 Pac. when a city has opened or dedicated to the 130, 15 Am. Neg. Rep. 101; Emporia v. use of the public à street, it is incumbent White, 74 Kan. 864, 86 Pac. 295; Vogelgeupon it to keep the entire width of such sang v. St. Louis, 139 Mo. 127, 40 S. W. street in a reasonably safe condition for 653; Dillon v. Raleigh, 124 N. C. 184, 32 ordinary travel. Stillwater v. Swisher, 16 S. E. 548; Lacon v. Page, 48 Ill. 499; CunOkla. 585, 85 Pac. 1110. And the general

ningham v. Thief River Falls, 84 Minn. 21, rule, deduced from the various authorities, 86 N. W. 763, 10 Am. Neg. Rep. 106. is that a city may in the exercise of its

In Hugo v. Nance, 39 Okla. 640, 135 Pac. municipal powers provide that only a cer- 346, it was said by this court in the syllatain portion of a street shall be improved

bus: “A municipal corporation is charged and used for public travel; but that, where by law with the duty of at all times keeping it does so provide (if the entire street is its streets and sidewalks in a reasonably apparently appropriated to the public use), safe condition for travel by the public." then that certain portion must be in some

Fairfax v. Giraud, 35 Okla. 659, 131 Pac. manner specifically designated and defined 159, 5 N. C. C. A. 428; Kingfisher v. Altizer, so as not to mislead a member of the trav- 13 Okla. 121, 74 Pac. 107, 15 Am. Neg. Rep. eling public into the use of other dangerous

173. portions to his injury. Where the entire

It is also contended by the defendant thoroughfare is opened with nothing to in that plaintiff's injury was one that could dicate the purpose of the city to restrict not have reasonably been anticipated by the use thereof to a particular portion, it the city, and for that reason no recovery is the duty of the city to keep the whole can be had. in a reasonably safe condition for ordinary

In Coolidge v. Hallauer, 126 Wis. 244, public travel; and a mere “zigzag” roadway 105 N. W. 568, it is said: “It is not necesthrough a space, covered by a number of sary, in order to constitute proximate cause, loads of rock dumped promiscuously into that the precise injury should have been the street, only wide enough to accommo- foreseen or apprehended as certain to occur. date a single vehicle, does not meet the It is sufficient if an ordinarily careful and requirement of the law.

prudent person ought, under the circumOpening a street or permitting it to re- 'stances, to have foreseen that an injury

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might probably result from the negligent, and laws of this state can be made only for act.”

corresponding specific benefits conferred. See also Hill v. Winsor, 118 Mass. 251; | County special assessment - pay. Armendaiz v. Stillman, 67 Tex. 458, 3 S. ment, W. 678; Wilbert v. Sheboygan Light, Power

2. Where substantial benefits are assessed & R. Co. 129 Wis. 1, 116 Am. St. Rep. 931, to a county on account of drainage to the 106 N. W. 1058.

public highways, that part of the expense Again, it is insisted on behalf of defend- tioned to the county, corresponding with

of constructing the drainage ditch apporant that there is a fatal variance between the amount of benefits conferred, must be the acts of negligence alleged in the petition paid by the county out of funds raised by and the proof. In this contention there is general taxation. no merit.

Same special assessment of taxpayIt was not error to refuse defendant's requested instruction set forth in the as- 3. That part of the expense of constructsignments of error.

ing a drainage ditch assessed against a The evidence was sufficient to take the county for benefits accruing to such county case to the jury on the question of the neg- by virtue of drainage of the public highways ligence of the city and the issues involved. by special assessment made against the

cannot legally be paid out of funds collected We have examined the instructions given property owners in said drainage district. by the court, and, in our opinion, the jury Constitutional law – special assessment were instructed as to the law applicable to

to pay county tax. the case in all particulars.

4. The payment of that part of the exIt follows that the judgment of the trial pense in constructing a drainage ditch, ascourt should be affirmed, and it is so or- sessed to the county for benefits to the pubdered.

lic highways out of funds collected by spe

cial assessments levied upon the individual All the Justices concur.

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 vio1915.

state.
Mandamus

compel erection of bridge.

5. The viewers and appraisers assessed OKLAHOMA SUPREME COURT.

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.,

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.

highways. Said assessment was confirmed by the county commissioners.

No excep(- Okla. -, 145 Pac. 1111.)

tions were filed or appeal taken therefrom.

The county commissioners refused to erect Public improvement special assess. said bridges, or to pay the amount of benement benefit.

fits assessed to said county. Plaintiffs, who 1. In the construction of a drainage ditch, are certain property owners in said district, special assessments under the Constitution filed their petition in the district court

against the county commissioners, and said Headnotes by RIDDLE, J.

commissioners as ex officio drainage comNote. No other case has been found in Northern P. R. Co. v. Richland County, point with WILKINS v. HILLMAN, on the L.R.A.1915A, 129. precise question as to the fund from which With respect to county warrants and ceran assessment against a county or town tificates of indebtedness it is stated in 11 on account of benefits from a drain or other Cyc. 539, that no county order or warrant public improvement must be paid. The gen- should be drawn on any fund not properly eral question as to property liable for raised for its payment, as claims against assessment for constructions of drains or counties can be satisfied only out of the sewers is extensively treated in notes to Heff- revenue available for the payment of such ner v. Cass & Morgan Counties, 53 L.R.A. claims; and as a general rule where a coun353, and Billings Sugar Co. v. Fish, 26 ty order or warrant is on its face payable L.R.A. (N.S.) 973.

out of the special funds, the holder having As to highway crossed by ditch con accepted the same can look only to such structed by drainage districts, see note to fund for the payment of his claim, and canRichardson County ex rel. Sheehan v. Drain- not recover payment after such fund has age Dist. 43 L.R.A.(N.S.) 695.

been exhausted, unless the county has diAs to liability of railroad property to verted the money of such fund from the assessment for drains or sewers, see note to l payment of the warrant drawn against it,

v.

E

missioners, and against plaintiff in error , 44; Franklin County v. Ottawa, 49 Kan. as drainage commissioner, praying for a 747, 33 Am. St. Rep. 396, 31 Pac. 788. writ of mandamus, requiring them to meet The county, though under both township and proceed to let the contract for the erec- and county government, has control over tion of said bridges. The court found in the roads and is ent of the state for favor of the county commissioners, and issued a peremptory writ of mandamus re

payment of such assessments. quiring the commissioners, as ex officio Cuming County v. Bancroft Drainage drainage commissioners, and the drainage Dist. 90 Neb. 81, 132 N. W. 927; Drainage commissioners, to meet and proceed to let Dist. v. Richardson County, 86 Neb. 355, the contract for the construction of said 125 N. W. 796. bridges. Held, error.

In the absence of statute, drainage dis

tricts are not required to build highway (December 22, 1914.)

bridges.

Rigney v. Fischer, 113 Ind. 313, 15 N. E. RROR to the District Court for Lincoln 594; Heffner v. Cass, & Morgan Counties,

County to review a judgment granting 193 Ill. 439, 58 L.R.A. 353, 62 N. E. 201; a writ of mandamus to compel defendants Erie v. Erie Canal Co. 59 Pa. 174; 1 Page to let a contract for the construction of I & J. Taxn. by Assessment, $ 449. certain bridges across a drainage ditch.

The county's liability for benefits to highReversed.

ways accomplished under this benefit plan, The facts are stated in the opinion.

is not subject to any limitations except the Messrs. Embry & Hastings, for plain-special benefits received. This is a special tiff in error:

limitation applicable to a special subject, This is a drainage improvement on the and the limitations of g 26, article 10, of benefit plan. Cost to be met by lands, the Constitution does not apply. which includes streets and highways, bene- Riley v. Carico, 27 Okla. 33, 110 Pac. fited, and in proportion to such special 738; Holley v. Orange County, 106 Cal. 420, benefits.

39 Pac. 790; Thompson v. Rearick, 33 Okla. People ex rel. Vaughn v. Welch, 252 Ill. 283, 124 Pac. 951; O'Neil Engineering Co. 167, 96 N. E. 991; Norwood v. Baker, 172 v. Ryan, 32 Okla. 738, 124 Pac. 22. U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. Mr. Streeter Speakman, for defendants 187; Iowa Pipe & Tile Co. v. Callanan, 125 in error: Iowa, 358, 67 L.R.A. 408, 106 Am. St. Rep. The validity of the assessment against 311, 101 N. W. 141, 3 Ann. Cas. 8; New Lincoln county for alleged benefits to pubOrleans v. Warner, 175 U. S. 127, 44 L. lic highways is not an issue in this cause, ed. 101, 20 Sup. Ct. Rep. 44; Sears v. and any decision based upon the same Street Comrs. 173 Mass. 350, 53 N. E. 876; would be prejudicial to the rights of LinRigney v. Fischer, 113 Ind. 313, 15 N. E. coln county. 594; Colfax Highway Comrs. v. East Lake O'Neil Engineering Co. v. Ryan, 32 Okla. Fork Special Drainage Dist. 127 Ill. 581, 738, 124 Pac. 21; State ex rel. Decker v. 21 N. E. 206; State ex rel. Horrall v. Stanfield, 34 Okla. 524, 126 Pac. 241; Thompson, 109 Ind. 533, 10 N. E. 305.

Thompson v. Rearick, 33 Okla. 283, 124 Pac. That highways may not be taxed is no 951. objection, as that is not the exclusive meth

Even if the attempted resolution had od of payment.

been timely and a valid amendment, an atSpring Creek Drainage Dist. v. Elgin, tempt to offset damages with correspondJ. & E. R. Co. 249 Ill. 260, 94 N. E. 529; ing benefits to the alleged highways of LinOklahoma City v. Shields, 22 Okla. 265, coln county would have been contrary to 100 Pac. 574; New Or ans v. Warner, 175 the drainage law. U. S. 127, 44 L. ed. 101, 20 Sup. Ct. Rep. Cunningham v. Big Stone, 122 Minn. 392, and has used the same for other purposes. A only with such as are special. The benefit state legislature, being the paramount for which an assessment must be made must political power, can direct and control the be laid to the betterment of the land for the officers in their disposition of the money purposes to which it may reasonably be put, of the county, and may forbid the payment and lands not benefited are not subject to by the treasurer of warrants issued on in- assessment. debtedness occurring prior to a certain date, And in 14 Cyc. 1061, the general rule is except with funds then on hand or subse stated that the expense of construction of quently received and belonging to the reve- a drain cannot be assessed against particunue of the county previous to such date. lar land to an amount in excess of the

And in 14 Cyc. 1059, it is stated that in benefits received by such land, and an asthe assessment of benefits in drainage pro- sessment upon a tract of land in excess of ceedings, the landowner should not be the benefits received is void as to such excharged with general benefits which accrue

J, D. C. to him as a member of the community, but

cess.

142 N. W. 802; Crittenden County Ct. v. lege that said viewers and appraisers asShanks, 88 Ky. 475, 11 S. W. 468; Welch sessed the benefit to Lincoln county in the v. Bowen, 103 Ind. 252, 2 N. E. 722.

sum of $134,550. They allege the progress It is the duty of the drainage district to made in the construction of said ditch and build all necessary bridges.

the necessity of building said bridges, and Heffner v. Cass & Morgan Counties, 193 the refusal of said defendants, as county ml. 439, 58 L.R.A. 353, 62 N. E. 201; High- commissioners, or either as ex officio drainway Comrs. v. Lake Fork Special Drain- age commissioners of said drainage district, age Dist. 246 Ill. 388, 92 N. E. 902; State to construct said bridges, as was their duty ex rel. Diffenbacher v. Lake Koen Nav. to so do, although often requested. It is Reservoir & Irrig. Co. 63 Kan. 394, 65 Pac. further alleged, without the construction of 681; Franklin County v. Wilt, 87 Neb. 132, said bridges, it will be impossible for plain31 L.R.A. (N.S.) 243, 126 N. W. 1007; tiff's to cross said ditch, and many of the Eyler v. Alleghany County, 49 Md. 257, 33 | farms situated in said district will be cut Am. Rep. 249; State ex rel. Hutter v. Papil- in two by said ditch, and the owners therelion Drainage Dist. 89 Neb. 808, 132 N. W. of will not have access to portions of their 398 ; Richardson County ex rel. Sheehan v. farms; that they have no adequate remedy Drainage Dist. 92 Neb. 776, 43 L.R.A. at law, and they pray for a writ of man(N.S.) 695, 139 N. W. 648, Ann. Cas. damus, compelling defendants to meet and 1914A, 546.

proceed to let the contract for the construcMr. F. A. Rittenhouse also for defend- tion of said bridges. An alternative writ ants in error.

of mandamus was issued, setting up sub

stantially the foregoing facts. Riddle, J., delivered the opinion of the Plaintiff in error, Homer J. Wilkins, as court:

drainage commissioner, filed his answer and On the 7th day of August, 1909, certain return to the alternative writ, wherein he property owners residing in Lincoln county sets out the various steps taken by the filed their petition in the manner provided county commissioners in the organization by law with the board of county commis- of said drainage district and the report of sioners, for the purpose of creating a drain- the viewers and appraisers and the conage district within said county. The peti. firmation thereof by said commissioners. tion was signed by the requisite number of He avers that the viewers and appraisers property owners necessary to confer juris- found the benefits to Lincoln county in the diction upon the county commissioners to sum of $134,550, and the damage in favor proceed in the matter. Various proceed of Lincoln county for the construction of ings were had, and there is no question said forty-eight steel bridges in the sum raised as to the regularity of the proceed- of $81,930. After legal notice by publicaings in the organization of the drainage tion, a hearing upon said report was had, district and in letting the contract for the and the same was by the commissioners construction of the ditch. On February 26, duly confirmed, and no appeal was taken 1914, J. W. Cherry, D. J. Norton, E. W. therefrom by the county; and the action of Hoyt, A. E. Patrick, and D. W. Collier, the viewers and the order confirming same property owners in said district, filed their have become final. He also makes a part petition in the district court of Lincoln of his answer the order of the board of county against Ed Hillman, J. F. Collier, county commissioners, of date, November, and R. A. Morrow, county commissioners 1910, as follows: and ex officio commissioners of Deep Fork

D drainage district No. 1, of Lincoln county, Chandler, Oklahoma, Nov. 19, 1910. and Homer J. Wilkins, as drainage com- The board met pursuant to recess, all missioner. Plaintiffs recite the various members present; journal of previous meetsteps taken in the organization of said ing read and approved. It is ordered by the drainage district, and the letting of the board that, whereas, by mutual mistake, contract to construct the ditch; that they the assessment for damages in favor of Linare property owners, affected by such pro- coln county in the Deep Fork drainage disceeding. They further allege that the view- trict No. 1 (by reason of the county being ers and appraisers appointed to view and required to construct bridges), not having appraise said property reported the neces- heretofore been spread of record, the county sity of building forty-eight steel bridges clerk be and he is hereby instructed to across said drainage ditch on the public record in the drainage record of said dishighways, and designated the localities trict the assessment hereby made in favor wbere said bridges were to be constructed; of Lincoln county, on account of the con. but said viewers and appraisers estimated struction of said bridges, the sum of $81,the cost of construction of said bridges in 930, which said sum is hereby declared to the sum of $81,930. Plaintiffs further al.' be the assessment of damages due said

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