Bryner v. Youghiogheny Bridge Co.
| Decision Date | 10 April 1899 |
| Docket Number | 101 |
| Citation | 42 A. 1100,190 Pa. 617 |
| Parties | Joseph S. Bryner, Burgess of the Borough of Connellsville, and others, Citizens and Taxpayers of said Borough, v. The Youghiogheny Bridge Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 9, 1899
Appeal, No. 101, Jan. T., 1899, by defendant, from decree of C.P. Fayette Co., No. 293, in equity. Reversed.
Bill in equity for an injunction, to restrain the construction of a bridge.
The facts were stated by KENNEDY, P.J., of the 5th judicial district, specially presiding, in an opinion on a motion to dissolve a preliminary injunction, as follows:
The purpose of this bill is to have the defendant enjoined or restrained from the construction of an abutment or approach on Main street, in the borough of Connellsville, to a new bridge proposed to be erected by it, the defendant, across the Youghiogheny river, near the site of the present bridge owned and operated by it across the said river.
An act of the legislature of Pennsylvania, entitled "An act to authorize Isaac Meason and Zachariah Connell, their heirs and assigns, to erect, build and maintain a toll bridge over the Youghiogheny river at Connellsville, in Fayette county," was passed March 15, 1800. By the first section of this act the said Isaac Meason and Zachariah Connell, their heirs and assigns, were authorized "to erect, build, support and maintain a good and substantial bridge over and across the Youghiogheny river at Connellsville near where the Great Road leading from Philadelphia to Uniontown crosses said river and that the property of said bridge when built shall be and the same is hereby vested in the aforesaid Isaac Meason and Zachariah Connell, their heirs and assigns, forever." The first section thereof also containing the provision "That nothing in this act shall extend to authorize the said Isaac Meason and Zachariah Connell, their heirs and assigns, to erect or build a bridge in the manner in this act before mentioned on any private property without consent of the owner or owners thereof, or to erect the same in such manner as in any way to interrupt or injure the navigation of said river or the passage over the ford across the same near where said bridge may be erected." Other provisions, conditions and restrictions appear in said act of assembly, which, however, are immaterial to this controversy. The present Main street in the borough of Connellsville constitutes a part of the "Great Road" mentioned in this section, and is sixty feet in width, the driveway being thirty-six feet wide and the balance of said street being used as sidewalks.
In pursuance of the authority therein granted the grantees proceeded to erect and construct a bridge at Connellsville across the river, selecting the termini for the same at the bank of the river on either side thereof.
By an act of the same legislature entitled "A supplement to an act to authorize Isaac Meason and Zachariah Connell, their heirs and assigns, to erect, build and maintain a toll bridge across the Youghiogheny river at Connellsville, in Fayette county, passed March 15, 1800," approved April 17, A.D. 1861, the then owners of said bridge were granted a charter of incorporation under the name, style and title of the Youghiogheny Bridge Company, and as such have continued to maintain and operate the bridge, at the point named, as constructed, from that date down to the present time.
On October 17, 1898, at a regular meeting of the council of the borough of Connellsville, being a municipal corporation, by resolution, accepted an agreement presented by the Youghiogheny Bridge Company, which provided among other things as follows: "That the said party of the first part (the borough of Connellsville), for the consideration hereinafter mentioned, hereby agrees to grant by ordinance duly enacted to the said Youghiogheny Bridge Company the right and privilege to erect, construct and maintain a bridge for the purpose of public travel in Main street in said borough, said bridge to be so constructed as to leave the said Main street at least eighteen feet in width from the southern curb as at present established to the said bridge, and bridge to occupy the remaining portion of said street, including the sidewalk on the northern side, and to extend east on said Main street no farther than 163 feet from the eastern curb on Water street as at present established." In consideration of which the Youghiogheny Bridge Company (this defendant) agreed to erect, construct and maintain the bridge in accordance with certain details and specifications mentioned in said agreement, and to give bond in the sum of fifty thousand dollars ($50,000) for the faithful performance of the covenants thereof. This agreement was signed by the president and secretary of the council of the said borough, and also by the president and secretary of the bridge company, and the bond in pursuance thereof was executed by the said bridge company, bearing date the same day, to wit: October 17, 1898. The necessity or materiality of said bond is not apparent, inasmuch as no obligation or liability was assumed thereby on the part of the bridge company, in addition to the covenants contained in the article of agreement.
The regular meetings of the council of said borough are held on the first and third Mondays of each month. The next meeting of said council, after that of October 17, 1898, should have occurred on November 7, 1898; no meeting, however, was held upon that day. A special meeting was held on November 10, 1898, the only notice of which given, as appears by the testimony, was by a policeman of the borough notifying verbally such members as he saw, of the proposed meeting. It does not appear what members were even thus notified. At the meeting held on November 10, 1898, according to the minutes thereof, which have been offered in evidence, there was not a full attendance, at least two of the members of said council being absent. According to the same minutes, the following action was taken, in reference to the agreement with the bridge company:
This is all the action taken by the council, as appears by the minutes. It was testified to, however, that the ordinance marked exhibit "G" was passed at this meeting. The first section contains this provision: "Be it ordained by the authority of the town council of the borough of Connellsville, and it is hereby ordained by the authority of the same, that from and after the passage of this ordinance, the Youghiogheny Bridge Company shall have the right and privilege to erect, construct and maintain a bridge for the purpose of public travel in Main street in said borough, such bridge to be so constructed as to leave said Main street at least eighteen feet in width from the southern curb, as at present established, and to extend no further east on said street than a point one hundred and sixty-three (163) feet from the eastern curb of Water street as at present established." It is not necessary to mention here other provisions of this ordinance, as they are not material to this controversy.
It appears by the testimony that this ordinance was passed, as before stated, on November 10, and was presented to the burgess of the borough on or about November 15, by the clerk of council, when he promptly vetoed the same, giving his veto message to the clerk of council on or about November 17.
The next regular meeting of council occurred on November 21, at which meeting the veto message was, constructively, at least, in possession of clerk of council. On that day, and prior to the meeting of council, the burgess called at the place of business of the clerk of council, and obtained from him his veto message, for the purpose of making some immaterial corrections in the wording or punctuation. He did not, however, withdraw his veto of the ordinance, but taking the paper, he made the unimportant correction, returned it to the clerk, as he, the burgess states, on the same day, within half an hour after obtaining the paper from the clerk, placing it in the same place from which the clerk had taken it to hand to the burgess.
There is a conflict in the testimony as to the time the paper was returned to the clerk, he (the clerk) testifying that it was not returned on the same day that it was obtained by the burgess, but he says that he found it in the place from which he had taken it to hand to the burgess on the day following. This conflict does not seem to be very material, as the burgess did not withdraw his veto message, but only obtained the paper from the clerk for the purpose of making this immaterial correction therein. It was therefore in the possession of the proper officer of the council for the purpose of presentation to that body at its regular meeting of November 21. It does not seem to be the duty of the burgess to present in person the veto message to that body. His duty is performed when he presents it to the proper officer of council, the clerk in this instance, whose duty it should be to present it to council, at their next regular meeting. It appears from the testimony, however, that while not read at the meeting on November 21, the veto message was actually presented at the next regular meeting thereafter which was held on December 5, 1898, at which meeting it was read, but no action taken thereon. Subsequently the clerk of council published the ordinance as having been passed on November 10, appending the note which appears at the foot of exhibit "G," signed by himself as clerk, stating that the burgess had not returned the ordinance together with his reasons for not approving the same, to the council, at its next...
To continue reading
Request your trial