28 FEDERAL amroamn. O
for an injury sustained by its negligencein the constructionor main-
tenance of said bridge, to say the ;1·oad is not a lawful one,·—we com-
mitted an error in the proceeding for its establishment. ». -
4 In Mayor v. Shqfield, 4 Wall. 189, it was held,.inthe language of the
syllabus: "Where acorporation is sued for an injury growing out of neg-
ligencevof the corporate authorities in their care of the streets of the cor-
poration, they cannot defend themselves on the ground that the formal-
ities of the statute were not pursued in establishing the street originally;"
and "if the authorities of a cityor town have treated a place as a public
— street, taking charge of it and `regulating it as they do other streets, they
cannot, when sued for such injury, defend themselves by alleging want
' of authority in establishing the street.?’ ,
Nor is this all in this connection. By the provisoto section 1 of the
act of October 24, 1882, (Sess. Laws, 60) which is substantially a re-en- `
actment of the proviso to section 1 of the act of October 29, 1870, (Laws
Or. 721,) it is declared "that all roads, viewed, surveyed, and recorded
by order of any county court ofthis state, subsequently to October 29,
1870, and the said road has not been defeated by remonstrance, as now
provided by law, or has not been made or declared vacated by existing
laws, shall be, and the same are hereby, declared public highways."
And although it was held by this court in Bums v. Railway Co., 8
s Sawy. 543, 15 Fed. Rep. 177, that a road "viewed, surveyed, and re-
corded" by order of a county court, without notice of the application
therefor, is void, as against any person whose land is thus attempted to
be charged with a public easement, and could not be made legal, as to
him, by any act of the legislature, yet it may well be held that, so far
as the county is concerned, the road is thereby legalized. _And in any
view of the matter, in my judgment, it cannot defend itself in an action
for damages resulting from an injury caused by its neglect to properly
care for such road, on the ground. of a defect in the notice of the appli-
cation for its establishment. . This point is not made in the printed brief
for the defendant, filed since the oralargument, and it may be that coun-
sel, on further reflection, have concluded to abandon it;
‘ The next point made in the defense is that, admitting the legality of
the road, the duty of the county to keep the bridge in good condition,
and the injury to the plaintiff by reason of its neglect of this duty, the
plaintiff is without remedy, because at common law no action would lie
in such case against the county, and the legislature, since the com-
mencement of this action, have repealed the statute giving the right to
A maintain one. V
In·Russell v. Men of Devon, 2 Term R. 667, (tempua 1788,) it was held in
the king’s bench that an action would not lie by an individual against
the inhabitants of a county, for an injury sustained in consequence of a
bridge being out of repair, which was chargeable to the county. The
decision of the court was placed by Lord KEN1'ON on the ground that
the inhabitants of the county were not a corporation, and had no cor-
porate fund out of which satisfaction of a judgment could be made; that
if the action was allowed, and the plaintiff had judgment, it might be