Opinion of the Court-Ailshie, Presiding J.

peake etc. Ry. Co., 91 Ky. 444, 16 S. W. 92; note to Barnowsky v. Helson (89 Mich. 523, 50 N. W. 989), 15 L. R. A. 33.) But what might be termed an apparent and obvious danger along a railroad track in some sections of the United States, especially in less mountainous and rugged sections, would clearly not be considered an obvious danger along a line of road through the mountains, canyons and gorges of this country, and particularly in northern Idaho.

It should be remembered that in this case the respondent did not attempt to prove that the appellant's right of way, or the mountain-side at the particular place where this accident occurred, was unusually dangerous, or presented obvious and patent dangers to the traveling public, against which the appellant ought to have taken special precaution or have made specific effort to remove.

Our attention has been called to a few authorities which deal with the principle involved in this case. Fleming v. Pittsburgh C. C. & St. L. R. Co., 158 Pa. 130, 38 Am. St. 835, 27 Atl. 858, 22 L. R. A. 351, was an action to recover damages for the death of the plaintiff's daughter, caused by a rock rolling down the mountain-side and passing through the car window and striking the girl, resulting in her death. In the course of the opinion the court said:

"In the present case, it is not shown that the accident was in consequence of a defect in any of the appliances or machinery used, or of the negligence of appellant's employees in their conduct of the train. It was the result of a rock becoming detached, and falling upon the train, while passing a point where the hill descends precipitously to the track. From it, at the place of the accident, to the top of the hill, is a distance of 456 feet. The cut for the railroad extends upward 33 feet, and above it is the natural hill. The rock which fell started at about 100 feet from the top of the hill, bounded down some 40 feet, struck, again bounded 20 or 30 feet; making four bounds before it struck the train, and caused the death of appellee's daughter. It is clear that the fall of the rock was in no way connected with the appliances or machinery used in the operation of the road, or the

Opinion of the Court-Ailshie, Presiding J.

acts of the employees in the conduct of the train, or in the construction of the road, and therefore there is no presumption of negligence on the part of appellants.”

In the case of Thomas v. Pennsylvania & Reading R. R. Co., 148 Pa. 180, 23 Atl. 989, 15 L. R. A. 416, the plaintiff, while sitting in defendant's car, received a violent blow on his left arm causing a fracture of the bone. The blow was inflicted by a hard substance hurled from some place outside and beyond the car. No one knew what the object or substance was that had inflicted the injury, nor was anyone able to tell from whence it had come, or the cause which had driven it in the direction of the car. The trial court took the case from the jury and ordered a nonsuit. On appeal, the court, speaking through Paxson, Chief Justice, said:

"The rule appears to be that where a passenger is injured either by anything done or omitted by the carrier, its employees, or anything connected with the appliances of transportation, the burden of proof is upon the carrier to show that such injury was in no way the result of its negligence. But to throw this burden upon the carrier, it must first be shown that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business, or in the appliances of transportation. In Pennsylvania R. Co. v. MacKinney, supra, there was evidence from which a jury might infer that the injury was the result of some negligence on the part of one or more of the employees of the company, and which excluded, to some extent, the inference that it could have occurred at the hand of a stranger, or someone not connected with the company. . . . There was nothing in the evidence to connect the accident with any defect in the cars or machinery, the movement of the train, or in any of the appliances of transportation. There was nothing, therefore, to submit to a jury. It would be as reasonable to hold that a bullet fired into the car from without, by means of which a passenger is killed, is evidence of negligence on the part of the company."

Points Decided.

The opinion in the foregoing case was approved and followed in Ginn v. Pennsylvania R. R. Co., 220 Pa. 552, 69 Atl. 992. The latter was a case where a passenger, while sitting at a window in the company's car, was struck by a missile hurled from some unknown source. The court distinguished the Ginn case from the Thomas case, holding that in the later case the injured party has presented sufficient evidence to preclude the probability that the object which struck him came from beyond the company's track or right of way, and that the evidence rather raised the presumption that it must have come from some place on the company's track or right of way. (See, also, Spencer v. Chicago M. & St. P. Ry., 105 Wis. 311, 81 N. W. 407; Filbin's Admr. v. Chesapeake O. & S. W. R. Co., 91 Ky. 444, 16 S. W. 92.)

The judgment must be reversed, and it is so ordered, and a new trial is granted. Costs awarded in favor of appellant.

Sullivan, J., concurs.

(April 20, 1911.)

BOISE CITY, a Municipal Corporation, Respondent, v. BOISE CITY CANAL CO., Appellant.

[115 Pac. 505.]

NUISANCE-BRIDGING CANALS-LIABILITY OF CANAL OWNER TO BRIDGE CANAL RIGHT OF WAY FOR CANAL.

(Syllabus by the court.)

1. Where a canal was constructed over the public domain and through what is now the site of Boise City prior to the issuance by the government of a patent for the townsite of Boise City, and the canal was being operated and maintained through the townsite at the time and prior to the issuance of patent from the government, held, that the city has no power or authority to compel the owner of the canal to build bridges across such canal

Argument for Appellant.

where streets have been extended across the canal subsequent to the building of the canal.

2. Where a canal has been constructed and operated in aecordance with law, it is not a nuisance, and can only become a nuisance by reason of the manner in which it is maintained or the method of its operation, and the mere fact that a municipality subsequently extends a street across a canal which has been lawfully constructed and operated does not convert the canal into a nuisance at the place where the street crosses the canal.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover the cost of constructing a bridge. Judg ment for plaintiff and defendant appealed. Reversed.

A. A. Fraser and J. L. Niday, for Appellant.

Where a ditch company has possession of a right of way and constructs a ditch thereon prior to the time that the highway crossing the same has been laid out and dedicated to the public, it cannot be compelled to construct at its own expense and keep in repair bridges across said ditch or canal which may be necessary for the public travel. (Broder v. Natoma Water & Mining Co., 101 U. S. 274, 25 L. ed. 790; City of Denver v. Denver & S. F. R. R. Co., 17 Colo. 583, 31 Pac. 338; Perley v. Chandler, 6 Mass. 453, 4 Am. Dec. 159; City of Lowell v. Props. of Locks and Canals, 48 Mass. 1; Tynon v. Despain, 22 Colo. 240, 43 Pac. 1039; City of Denver v. Mullen, 7 Colo. 345, 3 Pac. 693; City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Town of Providence v. Dyerville Mfg. Co., 13 R. I. 45; Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 Pac. 515; Morris Canal & Banking Co. v. State, 24 N. J. L. 62; Hutton v. City of Camden, 39 N. J. L. 122, 23 Am. Rep. 203.)

As a matter of law, it has already been decided by the supreme court of this state that the ditch in question was not a public nuisance within the statute. (McCammelly v. Pioneer Irr. Dist., 17 Ida. 415, 105 Pac. 1076.),

Opinion of the Court-Bryan, District Judge.

Frank B. Kinyon, for Respondent.

All of the questions involved in this case were before this court in the case of Boise City v. Boise Rapid Transit Co., 6 Ida. 779, 59 Pac. 716. In that case this court held that, "The city having extended its limits and platted its streets across said ditch, the owner thereof must bridge the same at his own expense, whenever such ditch obstructs the free passage or use of such streets. If it fails to do so, the ditch becomes a public nuisance, and it may be bridged by the city at the expense of the owner.'

It is not necessary that the word "nuisance" should be found in the complaint if the facts alleged and proven show it to be a nuisance, as we contend they do.

BRYAN, District Judge. This is an action brought by Boise City, a municipal corporation organized and existing by virtue of the laws of the state of Idaho, against the Boise City Canal Co., a corporation, in which the plaintiff seeks to recover from the defendant the sum of $27.50, the same being the amount expended by the plaintiff in the construction and repair of certain bridges across the canal of defendant and within the corporate limits of the city of Boise. The action was begun in the justice's court of Boise precinct and thereafter appealed to the district court of the third judicial district. The trial in the district court was upon an agreed statement of facts as follows:

"1. That the said defendant now is and has been during all the time since the day of in the year 1867 a corporation, and has been, together with its successors in interest, during all of the time since said date the owner of, in the possession of and operating and controlling the canal mentioned in plaintiff's complaint herein. That the water running through said canal is distributed to divers and different persons for the purpose of irrigating city lots in Boise City, Idaho, and farm lands adjacent to said Boise City;