#### PENN BRIDGE COMPANY v. COMMISSIONERS OF CHATHAM COUNTY et al.

(Filed 27 October, 1909.)

Counties — Dividing -Streams — Bridges—Cost Apportioned.

Under tlie provisions of Revisal, 1318, subsec. 29, each county shall defray the charge of building bridges across a stream dividing them “in proportion to the number of taxable poles in each,” and a statute providing that the divisional line shall run up the “middle of the stream” (river) in question and that said.line shall be “surveyed and marked,” does' not vary the rule of appor: tioning the expenses of such bridges between the counties from that prescribed by said section. Under the facts of this case Revisal, 2696, is inapplicable.

*216' Appeal by defendant from Biggs, J., May Term, 1909, of Chatham.

Tbe facts are stated in tbe opinion of the Court.

H. A. London & Son for plaintiff.'

Hayes & Bynum for Commissioners of Chatham County.

A. A. F. Seawell for Commissioners of Lee County.

Clark, C. J.

This is an action against the -county' commissioners of Chatham and Lee to recover the balance due for the construction of three steel bridges over Deep River, a non-navigable stream dividing Chatham and Lee counties. There is no question as to the amount due the plaintiff. The controversy is between the defendants as to the apportionment of. the recovery. The commissioners of Chatham contend that each county should pay one-half the cost of erecting the bridges, whereas the commissioners of Lee contend that the charge should be divided between the counties in proj)ortion io the number of taxable polls in- each.

Revisal, sec. 1318, subsec. 29, provides: “When a bridge is necessary over a stream which divides one county from another, the board of commissioners of each county shall join in constructing or repairing such bridge, and the charge thereof shall be defrayed by the counties concerned in proportion to the number of taxable polls of each.”

Revisal, sec. 2696, as to building of repairing bridges over a stream which “divides one county from another,” where the cost does not exceed $500, provides for the same basis of apportioning the cost between the two counties, “unless otherwise agreed upon by and between the commissioners of the respective counties.” In this case no such agreement is averred; besides, the cost of each bridge exceeds $500.

The commissioners of Chatham urge, however, that this is not a case where “a stream divides one county from another,” because the act creating Lee County (Laws 1907, ch. 624) provides that the line between Lee and Chatham shall run up “the middle of Deep River,” and tha‘t said line shall be “surveyed and marked.” We cannot see that this makes any difference. An examination of the acts creating counties show that in some instances, when a stream lies between two counties, the stream lies wholly in one of them, the line of the other county being at low-water mark on the other bank. This is the case as to the counties bordering on the Roanoke River, for instance. In other cases, Us in this, the line is up the middle of the stream. In neither case is there any neutral territory, and either county has *217criminal jurisdiction of offenses committed on or in tbe river. Revisal, sec. 3234; State v. Lewis, 142 N. C., 626.

In one of tbe later cases, McPeters v. Blankenship, 123 N. C., 651, tbe act provides, “One-balf tbe river lies in Mitcbell County and one-balf in Yancey County,” and tbe Court recognized tbe above section (now Revisal, sec. 1318, subsec. 29) as applicable and quote it in full.

Tbe judgment apportioning tbe charge of constructing these bridges in proportion to tbe number of taxable polls in eacb county conforms to tbe evident intent of tbe Legislature, which is founded upon tbe calculation that, as a general rule, tbe number of taxable polls in tbe respective counties will approximate tbe benefit to be derived by tbe people of tbe respective counties. This benefit can in nowise be affected by tbe fact whether tbe county line is in tbe middle of tbe stream or on tbe edge of it. It may be that a juster rule would be an apportionment “in pro-' portion to the assessed value of taxable property in eacb county,” for property as well as persons passing over tbe bridge, but that is a matter for tbe Legislature. Tbe judgment is

Affirmed.