Defective Streets Sachs v. City of Sioux City way Co., 68 Iowa, 480, 23 N. W. 740, and 27 N. W. 466. See, also, Taylor v. Inhabitants of Woburn, 130 Mass. 494. As Sachs had lost his cause of action by failing to give the required notice, there was nothing to survive, and on which the administratrix could base a suit. The ruling in Maylone v. City of St. Paul (Minn.) 42 N. W. 88, rests on the wording of the charter of the defendant city, which required notice "that the person injured will claim damages of the city for such injury" to be served, and also on statutes by which the cause of action, in event of wrongful death, is expressly given the personal representative. It will be observed that our statute does not limit the necessity of notice to claims by the injured party. The point has not been decided in Wisconsin, though in McKeigue v. City of Janesville, 31 N. W. 298, it was intimated that, had deceased lived out the time within which notice should have been served, the action would have been barred; while in the earlier case of Parish v. Town of Eden (Wis.)22 N. W. 399, the view entertained by the supreme court of Minnesota finds approval. The statute of that state seems to be construed as creating a new cause of action. Topping v. Town of St. Lawrence (Wis.) 57 N. W. 365; McKeigue v. City of Janesville, supra. The necessity of notice in such a case results from the decisions that the action of the personal representative is based, not on an independent cause of action, as in Minnesota and Wisconsin, but on one existing in favor of the deceased at the time of his death. Bridge as Part of Street. 2. But it is contended that the section requiring the service of notice has no application where the injury originated in the neglect of the municipality to properly construct or maintain a bridge. In other words, the appel lant asserts that this bridge was no part of the street, and for that reason no notice was required. Paragraph 5 of section 45 of the Code of 1873 reads: "The words 'highway' and 'road' include public bridges and may be held equivalent to the words 'county way,' 'county road,' 'common road,' and 'state road'"; and section 1001: Sachs v. City of Sioux City "Bridges erected or maintained by the public constitute parts of the highway." It will be observed that "street" is not specifically mentioned, and it is said that by implication it is excluded. But "highway" is the broader term. All streets are highways, but not all highways are streets. Conrad, 103 Ind. 355, 2 N. E. 803; Penny Pot Landing v. City of Philadelphia, 16 Pa. St. 79; Benedict v. Goit, 3 Barb. 459; 24 Am. & Eng. Enc. Law, 3. JUDGE ELLIOTT, in his work on Roads and Streets (page 12), says: "A street is a road or public way in a city, town, or village. As the way is common and free to all the people, it is a highway; and it is proper to affirm that all streets are highways, although not all highways are streets. * * * 'Street' is a generic term, and includes all urban ways which can be, and are * * * generally, used for ordinary purposes of travel. It is, in the strictest sense, a highway free to all, and maintained, not for private gain, but public benefit." "Street" is defined by Webster as "originally a paved way or road; a public highway; a thoroughfare in a city or village"; and in the Century Dictionary as "a paved road; a highway; (2) a public way or road, whether paved or unpaved, in a village, town, or city, ordinarily including a sidewalk or sidewalks and a roadway"; and in Bouvier's Law Dictionary as "a public thoroughfare or highway in a city or village.' The essential difference is in the location and the manner of improvement. Huddleston v. City of Eugene (Or.) 55 Pac. 868. See 2 Dill. Mun. Corp. (4th Ed.) § 688. As "highway" is the broader term, it would seem it would be held to include streets, and, if so, that a bridge must be construed, under these statutes, as a part of the street. In the absence of statute, bridges have been uniformly adjudged a part of the highway. Washer v. Bullit Co., 110 U. S. 558, 4 Sup. Ct. 249; cases collected in note to 4 Am. & Eng. Enc. Law (2d Ed.) 920. And when over a stream crossing a street in a city, they are a part of the street. Beaver v. City of Man chester, 26 Law J. Q. B. 311; City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; Mcdonald v. City of Ashland, 78 Sachs v. City of Sioux City Wis. 251, 47 N. W. 434; City of Chicago v. Powers, 42 Ill. 169. In the last case the court said, through WALKER, C. J. : "It seems to us to be obvious that a bridge over a stream crossing a street is a part of the street. It is as much so as the cover placed over a drain or a sewer crossing a street. Persons travel over it as they do over other portions of a street,subject, it may be, to any delay that may be occasioned in opening and closing a draw." In common parlance a street of a city includes the necessary bridges, and we are of opinion that bridges are included in the term "streets," as used in the act requiring notice. The appellant ingeniously argues that, as "streets" and "sidewalks" are both mentioned, "streets" must have been in a restricted sense. It may be conceded that enumeration where generalization would have served as well has the effect of limiting the meaning of the words used. But a sidewalk may quite as appropriately extend across a bridge as along the surface of the ground, and is quite as common in the one place as the other. In using the word "sidewalks" then, the bridge may necessarily have been included, rather than excluded, as a part of the street. It may be that, where both "streets" and "bridges" are mentioned in the same statute, the former should not be construed to include the latter. This was held in City of Cedar Rapids v. Cedar Rapids & M. C. Ry. Co., 79 N. W. 125, where we said: "It is true that for certain purposes, as for travel, bridges are made a part of the streets, avenues, and highways; but throughout the statute and in this ordinance, and in common acceptation, they are recognized as different from that part of the streets, avenues and highways which are made directly upon the earth's surface." The statute referred to was section 870 of the Code. But there is no apparent reason for saying that in these acts, relating solely to the remedy, such a restricted meaning should be given to the term. The evident design of requiring notice was to enable the municipality to investigate the facts concerning any injury while fresh in mind, and there is precisely the same necessity for so doing whether the injury happened on the sur Sachs v. City of Sioux City face of the earth, or on that part of the street called a "bridge." The mischief intended to be remedied is the same, and the word "streets," in the act, should be given its general, rather than its restricted, meaning. Affirmed. NOTES. Injuries from Defective Bridges-Liability of Municipalities.Bridges within municipal limits are generally considered as being so far a part of the highway that the municipality is responsible for an injury occasioned by a failure on its part to keep them in repair. Burritt v. New Haven, 42 Conn. 174; Commonwealth v. Deerfield, 6 Allen, 449; State v. Gorham, 37 Me. 451; Chicago v. McGinn, 51 I11. 266; Mechanicsburg v. Meredith, 54 Ill. 84; City of Goshen v. Myers (Ind.), 25 Am. & Eng. Corp. Cas. 1; People v. Saratoga & R. R. Co., 15 Wend. 133; Smoot v. Wetumpka, 24 Ala. 112; Humphreys v. Armstrong Co., 56 Pa. St. 204; Atlanta v. Champe, 66 Ga. 659; Bishop v. Centralia, 49 Wisc. 669; Pray v. Jersey City, 32 N. J. L. 394; Bardwell v. Jamaica, 15 Vt. 438; Nebraska City v. Campbell, 2 Black. 590; Sewell v. Cohoes, 75 N. Y. 45; Van Winter v. Henry Co., 2 Am. & Eng. Corp. Cas. 512; Eudora v. Miller, 2 Am. & Eng. Corp. Cas. 633; Orth v. Milwaukee, 2 Am. & Eng. Corp. Cas. 688; Carpenter v. Cohoes, 81 N. Y. 21. Municipal Duties as to Bridges. As to how far bridges are parts of highways, and the extent of municipal duties regarding them, see Manderschid v. Dubuque, 29 Iowa, 73; Chicago v. Powers, 42 I11. 169; Chicago v. McGinn, 51 Ill. 266; Mechanicsburg v. Meredith, 54 Ill. 84; Burritt v. New Haven, 42 Conn. 514; Richardson v. Turnpike Co., 6 Vt. 496; Turnpike Co. v. Berry, 5 Ind. 286; Cooley v. Freeholders, 3 Dutch. (N. J.) 415; Humphreys 7. County, 56 Pa. St. 204; Smoot v. Wetumpka, 24 Ala. 112; Escanaba Co. v. Chicago, 2 Am. & Eng. Corp. Cas. 220; Van Winter v. Henry County, 2 Am. & Eng. Corp. Cas. 512; Abernethy v. Van Buren Township, 2 Am. & Eng. Corp. Cas. 590; Eudora v. Miller, 2 Am. & Eng. Corp. Cas. 633; Board of Commissioners v. Brown, 2 Am. & Eng. Corp. Cas. 652; Lewer v. Sedalia, 2 Am. & Eng. Corp. Cas. 658; Fulton Iron Works v. Kimball Township, 2 Am. & Eng. Corp. Cas. 673; Orth v. Milwaukee, 2 Am. & Eng. Corp. Cas. 688; Louisville Bridge Co. v. Louisville, 3 Am. & Eng. Corp. Cas. 583; Denver v. Dinsmore, 4 Am. & Eng. Corp. Cas. 568. MC CAS-47 Philadelphia Ball Club, Limited, v. City of Philadelphia PHILADELPHIA BALL CLUB, LIMITED, ย. CITY OF PHILADEIPHIA. (Supreme Court of Pennsylvania, Oct. 6, 1899.) Change of Street Grade-Injury to Property-Measure of Damages-Elements of Damage.*—In an action against a municipal corporation by the lessee of a baseball park to recover damages for injury to the property caused by a change of street grade, as in other eminent domain cases, only the difference in the actual value of plaintiff's interest in the property immediately before and immediately after the injury, and caused by it, can be considered; and it is not proper to include loss of future profits in such valuation, nor any damages which are imaginary, speculative, or remote ; nor are circumstances occurring after the completion of the injury entitled to any weight. Same-Damages-Delay of Payment.-In such action, plaintiff was not entitled to recover anything on account of delay in the payment of the damages actually sustained, caused by the contest in the courts as to the amount recoverable, such contest having been the result of the unreasonable demands of plaintiff. APPEAL by defendant from Philadelphia county court of common pleas. Reversed. R. Alexander and John L. Kinsey, for appellant. Change of Street GREEN, J. The solution of the questions arising upon this record is not difficult, if we do but define with accuracy the rule which controls the assessments in all cases of this character. There has never been a better stateGle-Injury to ment of that rule than was given in the case in which it originated. Although the decision was made 78 years ago, it has proved itself equal to all the emergencies ard contingencies, and all the ever-varying conditions and questions, that have been Property Meas ure of Damages Elements of *See notes at end of case. |