County of Erie v. Commonwealth

• Decision Date: 04 June 1889
• Docket Number: 366
• Parties: COUNTY OF ERIE v. COMMONWEALTH
• Court: Pennsylvania Supreme Court

17 A. 905

127 Pa. 197

COUNTY OF ERIE v. COMMONWEALTH

No. 366

Supreme Court of Pennsylvania

June 4, 1889

Argued May 1, 1889

ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.

No. 366 January Term 1889, Sup. Ct.; court below, No. 50 May Term 1887, C.P.

On February 27, 1887, the road commissioners of LeBoeuff township presented a petition in the name of the commonwealth setting forth that in 1836 proceedings were had in due conformity with the law, by which it was established that a county bridge was necessary over French creek at the crossing of the road from Waterford to Union; that said bridge had been duly constructed by the then county commissioners, and had been maintained ever since, the repairs in recent years having been made by the township; "that said bridge had been partially destroyed by floods, freshets and ice so far undermining one of the piers thereof as to make it necessary that the same should be immediately rebuilt;" that the petitioners had called upon the commissioners of Erie county to rebuild and reconstruct said bridge, so that it would be fit and safe for public travel, but they had refused so to do; praying the court to grant a rule on said commissioners to show cause why a mandamus should not issue, etc.

To the rule granted, the commissioners of Erie county answered that they had no knowledge that the bridge in question had ever been entered as a county bridge, and denied "that said bridge has been partially destroyed by floods, freshets and ice so far undermining one of the piers thereof as to make it necessary that the same shall be immediately rebuilt;" averring that "whatever damage it has suffered has been the natural wear and tear from constant use and the gradual wearing of the stream against its piers, and is not within the meaning of the act requiring county bridges to be reconstructed by the commissioners of the county."

Testimony having been taken and filed by Mr. Ira E. Briggs, appointed examiner for the purpose, an agreement was entered into by which trial by jury was dispensed with and the cause submitted to the decision of the court upon the testimony filed.

On August 8, 1888, the court, GUNNISON, P.J., filed a decision which was as follows:

FINDINGS OF FACT.

The testimony disclosed the following material facts:

Upon the petition of a number of the inhabitants of LeBoeuff township, representing that a bridge was much needed over French creek in said township, where the public highway from Waterford to Union Mills, crossed said creek, and that the erection of said bridge would require more expense than it was reasonable the said township should bear, the Court of Quarter Sessions, on May 5, 1836, ordered a view, under the provisions of § 21, act of April 6, 1802, 3 Sm. L. 520 which provided the manner of establishing and erecting county bridges.

No record of the report of the viewers then appointed, or of the action of the Court of Quarter Sessions, grand jury, or county commissioners thereon, can be found. But, that upon the report of the viewers it appeared to the court, grand jury and commissioners, that such bridge was necessary, and would be too expensive for the township to erect, and that it was thereupon established as a county bridge, appears from the subsequent records and papers which were offered in evidence. By them it appears that on December 28, 1836, the county commissioners contracted with William Boardman and Calvin Avery to erect the bridge for $870. On October 17 1837, the commissioners presented their petition to the Court of Quarter Sessions, setting forth the prior proceedings, and that the bridge had been completed agreeably to the contract, and praying for the appointment of six fit persons to inspect the said bridge, etc.; whereupon the court appointed six fit persons as prayed for, five of whom reported November 6, 1837, that they had inspected the bridge and the workmanship thereof; that it had been built and finished according to the agreement, and was a permanent and substantial structure. It must be taken therefore as proved that the bridge was a county bridge.

The testimony as to the present condition of the bridge is somewhat conflicting. But from it all I find that the abutments of the bridge, especially the east one, are in a dangerous condition; that this condition is partly the result of natural wear and tear, and partly the result of the action of the water and the floods and ice; and that they have become partially undermined by the current of the stream, the bed of which has become lower, exposing the wood foundation under the stone abutments at low stages of water to the action of the atmosphere, causing it to become decayed to such an extent as to cause the settling of the abutments. This settling has been gradual for a few years past and the abutments are now, partly in consequence of the settling and partly from the action of the frost, floods and ice, cracked, bulged out towards the stream, with some of the stone washed out, and in need of thorough repairs. I cannot find, however, that the particular damage done by floods and ice amounts to the destruction, partial destruction, or blowing down of the bridge, within the meaning of the act of May 5, 1876, P.L. 112. Floods and ice contributed, with the other causes I have named, to gradually affect the abutments and render the repairs necessary.

CONCLUSIONS OF LAW.

Having found as a matter of fact that the damage to the bridge caused by floods and ice did not amount to such destruction or partial destruction as is contemplated by the act of 1876, requiring in certain cases the county to reconstruct or rebuild county bridges, it follows that the provisions of that act do not apply to this case.

The question then is, is there any liability imposed upon the county to repair, aside from that imposed by that act?

By the act of April 13, 1843, P.L. 221, it was enacted, "That, from and after the passage of this act, it shall be the duty of the county commissioners of the several counties of this commonwealth to repair all bridges erected by the county, and to pay such expenses out of the treasury in the usual manner," excepting as to certain counties named. By the act of April 6, 1854, P.L. 295, the exemptions of the counties mentioned in the act of 1843 from liability to repair county bridges, was extended to the county of Erie. Each of these acts is entitled: "An act supplementary to an act entitled 'an act relating to roads, highways and bridges,'" which is the title of the act of June 13th.

The Supreme Court in construing an act repealing the act of 1843 so far as it extended to Crawford county, in Howe v. Crawford County, 47 Pa. 361, held that the act of 1843 imposed upon the county the duty of repairing only such bridges as were erected under the act of 1836, to which it was a supplement; that the repeal of that act as to Crawford county relieved it from the duty of repairing such bridges only; that the bridge in question in that case having been built in 1820, under the provisions of the act of 1802, the duty of repairing it was imposed upon the county by the judicial proceedings of 1820, by which it was established as a county bridge, "and it was a continuing duty the repeal of the act of 1843 in nowise affected."

It was strenuously argued by the counsel for the defendants, upon the authority of Commonwealth v. Monroe County, 2 W. & S. 495, in which the Supreme Court held that "when a county bridge has been once legally built, such ordinary repairs as are necessary to preserve it fit for use are to be made by the supervisors of the township, as in the case of roads," and expressly concurred in the opinion of the court below, "that the county only erects bridges when the township is unable to do it, and in no case repairs bridges after they are erected," that the county is not liable for any repairs to any county bridge excepting such as are within the meaning of the act of 1876.

If the decision in Howe v. Crawford County had not been since rendered, I would be inclined to agree with this construction. But as I understand that case, which is a later utterance [Illegible Word] the Supreme Court upon the question, [the liability here depends upon whether this bridge was originally erected under the act of 1802 or the act of 1836. If under the former, the county is liable; if under the latter, it is not liable.]

In the case of Howe v. Crawford County, the bridge was clearly erected under the act of 1802. In this, the proceedings were begun prior to the passage of the act of June 13, 1836, P.L 555, and completed after it went into effect, which was September 1, 1836. The order for the original view was made May 5, 1836. There is a hiatus in the record from that date until October 17, 1837, when on the petition of the county commissioners six fit persons were appointed to inspect the bridge and workmanship thereof, and make report, etc. There is no record of the report of the viewers appointed May 5, 1836, nor of the action of the court, grand jury and commismissioners thereon. In the absence of such record, it must be presumed that the proceedings were regular and timely: Omnia praesumuntur rite esse acta. In due course, the report should have been made to the next term of the court following the appointment of viewers, and the action of the court, grand jury and commissioners thereon taken at the same time. The next term began on the first Monday in August, 1836, which was prior to the time prescribed for the act of 1836 to take effect. If the report of viewers was then made, and it then appeared to the court, grand jury and commissioners that such bridge was necessary, and would be too expensive for the township to erect, the act provided that it should be entered...