On Petition for Rehearing.
Myers, J.5. Appellant seeks a rehearing in this case, or, in the alternative, a modification of the judgment, so that it may construct such bridge or culvert as it sees fit, provided it be sufficient, on the ground that it will be presumed that it will construct a sufficient bridge, the theory being that neither the commissioners of drainage, nor the court, has any power or authority to define the kind and dimensions of the bridge to be placed over the ditch.
There was no offer, as is now made, to construct a sufficient bridge or culvert, but appellant stood upon the proposition that it was not required to construct any bridge or culvert. There was no motion to strike out the recommends tion of the commissioners as to the bridge to be built by appellant, hut appellant formed an issue, and tried the question of the required capacity of the bridge, and the finding was against it upon the question now urged, that there was no necessity for so large a structure. There was no motion to modify the judgment, though in the face of the finding as to the necessary size of the bridge the judgment should not be modified. Appellant insisted and sought to show that a bridge of much less dimensions and cost would be sufficient, and the court did reduce the size and the estimated cost of the bridge, and found that a bridge of certain dimensions would be sufficient, which was necessarily a finding that a lesser construction would be insufficient.
We find no reason to modify our former holding as the record comes to us. The petition for a rehearing is overruled.