Duncan v. Fitch

Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision. 1. Drainage, § 93*—duty of drainage commissioners to build bridges. Where drainage commissioners dig a ditch across a highway, ' not in a water course, they are required under the law to build a bridge sufficient for the convenience of public travel over such ditch and to restore the highway. 2. Drainage, § 94*—when plea in mandamus to compel drainage commissioners to build bridge demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by the defendants at a point where such ditch crossed a highway, a plea setting up that a bridge had been constructed by petitioners and that the bridge furnished ample facilities and conveniences for public travel, held such plea, sufficient on demurrer. 3. Drainage, § 94*—when plea in mandamus proceeding to compel drainage commissioners to build bridge not demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by defendants at a point where such ditch crossed a public highway, a plea stating that the commissioners condemned the right of way over and across the lands of a railroad company and that the ditch was constructed along the right of way as condemned against said railroad company and that by virtue of condemnation and payment of the sum found due the railroad company, the railroad was required to maintain necessary crossings for highways, held demurrable for the reason that the fact that the defendants had condemned the right of way as to the railroad company would not excuse the performance of their duty to build the bridge.