Commonwealth ex rel. James v. Lehigh Coal & Navigation Co.

• Decision Date: 15 March 1926
• Docket Number: 136
• Citation: 285 Pa. 551,132 A. 705
• Parties: Commonwealth ex rel. v. Lehigh Coal & Navigation Co., Appellant
• Court: Pennsylvania Supreme Court

132 A. 705

285 Pa. 551

Commonwealth ex rel. v. Lehigh Coal & Navigation Co., Appellant

No. 136

Supreme Court of Pennsylvania

March 15, 1926

Argued February 1, 1926

Appeal, No. 136, Jan. T., 1926, by respondent, from order of C.P. Northampton Co., July T., 1925, No. 38, awarding mandamus, in case of Commonwealth ex rel. Robert E. James District Attorney for Northampton County, v. Lehigh Coal &amp Navigation Co. Affirmed.

Petition for mandamus. Before STOTZ, J.

The opinion of the Supreme Court states the facts.

Mandamus awarded. Respondent appealed.

Error assigned was, inter alia, order, quoting it.

The order is affirmed at appellant's cost.

E. J. Fox, of E. J. & J. W. Fox, with him Wm. Jay Turner, for appellant. -- The expressly limited requirement to keep the bridges in the same condition as they were on April 21, 1858, cannot possibly be construed to impose upon the appellant the duty to provide bridges large enough and strong enough for modern motor traffic. The ruling of the court below is an attempt to read into the contract between the State and the Sunbury & Erie Railroad Company, or its assigns, provisions which are not there: Union Canal Co. v. Pine Grove Twp., 6 W. & S. 560.

James O. Campbell, First Deputy Attorney General, with him Robert E. James, District Attorney, John L. Shelley, Jr., Attorney, Department of Highways, and George W. Woodruff, Attorney General, for appellee. -- The bridges in question never became part of the state highway and defendant was not relieved of its maintenance obligation: Com. v. Bird, 253 Pa. 364; Com. v. Grove, 261 Pa. 504; Erie R.R. v. P.S.C., 77 Pa.Super. 196.

Even if the bridges in question were included in Route 156 as defined in the Sproul Act and were taken over by the State, they were included in the portion of the highway abandoned as a state highway and reverted to their former status: Saeger v. Com., 258 Pa. 239; Erie R.R. v. P.S.C., 77 Pa.Super. 196.

The fact that the burden of the maintenance of these bridges has increased, due to increased traffic caused by the designation of the highway as a state highway, or due to the development of the motor vehicle, or for any other cause, does not relieve defendant: Swarthmore Boro. v. Transit Co., 280 Pa. 79.

If defendant is relieved from the maintenance of these bridges such responsibility is on the townships: Thompson v. Com., 81 Pa. 314.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

The question we are called upon to decide in the pending case is whether the court below properly determined that defendant is obligated to repair and maintain two bridges crossing its canal in Northampton County.

From the brief of appellant's counsel we learn that the Commonwealth constructed a canal leading from Easton to Bristol along the line of the Delaware River known as the Delaware Division of the Pennsylvania Canal, which was operated by the Commonwealth from 1827 to 1858. In the latter year, the Commonwealth sold the canal to the Sunbury & Erie Railroad Company in pursuance of an Act of Assembly approved April 21, 1858, P.L. 414, which provides in section 5, "And the Sunbury & Erie Railroad Company or their assigns, immediately after taking possession of the said canal, shall be bound to keep up the same, including the public and private bridges crossing the said canal, as heretofore done by the canal commissioners, in as good repair and operating condition as they now are, and they shall be and remain public highways forever, for the use and enjoyment of all persons desiring to use the same, subject to such rules and regulations as the owners thereof may from time to time establish."

The Sunbury & Erie Railroad Company sold the canal to the Delaware Division Canal Company and that company leased it to defendant for a period of ninety-nine years from the 1st of April, 1866.

Appellant maintained the bridges in pursuance of the obligation imposed by the quoted enactment at least until the passage of the State Highway Act, known as the Sproul Act, of May 31, 1911, P.L. 468. Following the passage of that act, the highway, of which the two bridges in question formed a part, was taken over by the Commonwealth as Highway Route No. 156, and for a period of almost ten years the two bridges were used as part of the state highway. The geographical situation so far as the highway was concerned was that it ran along the west side of the canal until it reached one of the bridges, it crossed this bridge to the east side of the canal, which it skirted for about three-quarters of a mile, and then crossed the other bridge back to the west side.

The commissioner of highways, in pursuance of the authority conferred upon him by section 8 of the Sproul Act, changed and diverted the route of the highway so that it no longer crossed the bridges but continued its course entirely along the west side of the canal. The Commonwealth abandoned the highway on the east side of the canal and the use of the bridges, but the abandoned part was not vacated; it is essential that the road shall remain for the use of those living on the east side of the canal.

The bridges getting into disrepair, the...