Commonwealth ex rel. Culver v. Bird

• Decision Date: 17 April 1916
• Docket Number: 437
• Citation: 98 A. 648,253 Pa. 364
• Parties: Commonwealth of Pennsylvania, ex rel. Culver v. Bird, Appellant
• Court: Pennsylvania Supreme Court

98 A. 648

253 Pa. 364

Commonwealth of Pennsylvania, ex rel. Culver v. Bird, Appellant

No. 437

Supreme Court of Pennsylvania

April 17, 1916

Argued March 15, 1916

Appeal, No. 437, Jan. T., 1915, by defendants, from order of C.P. Bradford Co., Sept. T., 1915, No. 337, awarding mandamus to construct and maintain a bridge in case of Commonwealth of Pennsylvania, ex relatione Charles M. Culver, District Attorney, v. George N. Bird, Jesse L. Ellsworth, and Miles E Horton, County Commissioners of Bradford County. Affirmed.

Petition for writ of peremptory mandamus to compel the county commissioners of Bradford County to construct and maintain a bridge forming part of a State highway.

The facts appear in the following opinion of MAXWELL, P.J.:

The question raised for our determination is, whether or not the law imposes upon the County of Bradford, the duty of maintaining and rebuilding of a certain bridge located upon the main highway leading from Laporte, Sullivan County, Pa to Towanda, Bradford County, Pa.

The bridge is in an admittedly dangerous condition, and is located upon one of the main principal roads of the county. The condition of this bridge is such that it requires the immediate attention of the proper authorities, to make the same reasonably safe for the accommodation of public travel.

The bridge in question is located upon a "State Highway," adopted by the "Sproul Act" of May 31, 1911, P.L. 468, and designated as Route No. 17 by said act.

The facts appear by the case submitted as follows:

This bridge is located upon the said highway between Monroeton and New Albany, this county, and is one of the public roads or routes, included in the Act of May 31, 1911, P.L. 468, known as the "Sproul Act," and is the bridge over the south branch of Towanda Creek in the Township of Monroe, County of Bradford, and State of Pennsylvania, and is known as "Kelloggs' Bridge." The present bridge is a wooden structure 100 feet in length, and by due and regular proceedings, was entered of record, and constructed as a county bridge, by the County of Bradford, in the year 1866, and has been kept in repair and maintained as a county bridge, from that date to the present time.

That said bridge is necessary for the safe and convenient travel of the public in, along and over said highway.

That the county commissioners of the said county, after an inspection of said bridge, have condemned the said bridge, as no longer reasonably safe for public travel, and as such have closed the same to the public, and all travelers are prohibited from using the same, save with such notice and at the traveler's risk, and which is a great public inconvenience.

On April 19, 1915, a petition was presented by the said county commissioners, to the Court of Quarter Sessions of Bradford County, setting forth, inter alia, in substance, the foregoing facts, and which proceedings are filed to No. 4 Road Docket 1915.

It was further alleged in said petition, by the said county commissioners "that it was their belief that it was necessary that a new bridge be erected and constructed, with concrete abutments and steel superstructure, concrete floor, etc., in order to be sufficient for the present traffic, and, if the county was still liable to provide this bridge, that it was necessary and their duty to promptly reconstruct the same but alleging that the State highway commissioner had generally and unconditionally taken over the said highway under the said Act of May 31, 1911, known as the "Sproul Bill," which was included in Route 17 from Laporte to Towanda, contending also, that such route comprehended and included the said county bridge, and that the same was no longer for the county to keep, provide, maintain and repair, but that the same has passed to and become a State highway, with all duties incident thereto upon the State Highway Department and the Commonwealth, but submitting an estimate and the facts for the determination of the Court of Quarter Sessions, and referring the same to the approval of the court and grand jury, as provided by the Act of February 14, 1907, P.L. 3."

Upon presentation of which petition, the court made a conditional order and approval, granting the prayer of the county commissioners, and referring the whole matter to the grand jury for approval. April 20, 1915, the grand jury reported, in substance, that the said bridge was necessary, and by reason of old age, wear, rotten, decayed and unsafe condition for public travel, should be closed to the public for the present, but that there was uncertainty, whether, under the law and the facts, it was the duty of Bradford County to erect and construct the same, or whether it was the duty of such highway department to rebuild and construct the same, and the said grand jury made a conditional report, approving the same, provided it was legally determined that the liability rested upon the county commissioners of Bradford County to rebuild the same, and that if such liability existed, that the said new bridge was necessary and when reconstructed, should be a county bridge and paid for out of the county funds of the County of Bradford, but not otherwise.

It was further alleged in said petition, that since which time, the county commissioners of Bradford County, have not done anything toward the rebuilding of said bridge, although they have been often requested to do so, and they still neglect and refuse, absolutely, to erect and construct a new and sufficient bridge, to take the place of the said old bridge.

It was further alleged in said petition, that the said county commissioners, have given notice to the supervisors of the Township of Monroe, that the County of Bradford will not furnish and provide the said bridge as provided by law, and informing the said supervisors that the duty devolves upon the said Township of Monroe, through its said officers, to furnish a temporary way that should be convenient, safe and sufficient for the public, until a permanent bridge shall be erected.

And it was further alleged in said petition, that it was the duty of the county commissioners of the County of Bradford, and the respondents in this case, to rebuild and construct a sufficient county bridge, to take the place of the old one above mentioned, as provided by the Act of February 14, 1907, P.L. 3. That the relator, your petitioner, is without other adequate and specific remedy at law.

Upon presentation of said petition, on August 2, 1915, the court granted a rule upon the respondents, to show cause why an alternative writ of mandamus should not be issued to the county commissioners of Bradford County, as therein prayed for. Returnable the 4th day of August, 1915, at ten o'clock, a.m.

August 2d, respondents through their attorney, signed the following waiver:

"The actual issuing and service of the writ of alternative mandamus in this case is waived and the respondents voluntarily appear in court to respond to and answer the petition and complaint with the same force and effect as though the writ had regularly been issued, served and the day for appearance and answer had arrived, and voluntarily submit to the jurisdiction of the court."

The parties to the above case, by their respective attorneys, on the 21st of August, 1915, filed of record the following stipulation, to-wit:

"Now, August 21, 1915, to avoid delay and expense of taking evidence or hearing in the above entitled case, it is agreed that the facts contained in the petition and answer in this case shall be considered and treated as proven and established, without further or formal proof.

"It is further agreed if upon the facts, the court shall find that the county and not the State is still continuing, bound and obligated to construct, maintain and keep in repair the bridge that was formerly a county bridge as described in the said proceedings, that then a peremptory injunction and formal judgment and decree may be entered against the respondents, otherwise that the petition presented in this case shall be dismissed, with right to either party to enter an appeal to an appellate court.

"That the court shall make such order as to costs as shall seem just under the circumstances.

"LILLEY & WILSON,

"Attorneys for the Relator.

"R. A. MERCUR,

"Attorney for the Respondents and County Solicitor."

There are four classes of public roads, exclusive of turnpikes.

(1) Township roads; (2) County roads; (3) State-aid Highways; and (4) State Highways.

Township roads embrace and include the ordinary public roads in townships, which are laid out and maintained under the law, by the township supervisors of the respective townships.

County roads are such as are provided for by the Acts of Assembly of June 26, 1895, P.L. 336; May 11, 1911, P.L. 244, and May 21, 1913, P.L. 287.

State-aid Highways were created under the Act of the 15th of April, 1903, P.L. 188, which provided for the cooperation by the State with the several counties and townships, in the improvement of public highways, and the maintenance of said highways, so improved.

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