In re Youghiogheny Bridge
| Decision Date | 11 October 1897 |
| Docket Number | 495 |
| Citation | 38 A. 478,182 Pa. 618 |
| Parties | Youghiogheny Bridge. Appeal of Fuller Hogsett and Morgan H. Bowman |
| Court | Pennsylvania Supreme Court |
Argued May 10, 1897
Appeal, No. 495, Jan. T., 1896, by Fuller Hogsett and Morgan H. Bowman, from judgment of Superior Court, affirming an order of Q.S. Fayette Co., Sept. T., 1892, No. 3, directing a bridge viewers' report to be referred to the county commissioners. Reversed.
Appeal from judgment of Superior Court: 2 Pa.Super. 265.
The facts appear by the opinion of the Supreme Court.
Error assigned was judgment of the Superior Court.
The decree of the Superior Court and of the quarter sessions are reversed at the costs of the appellees.
P. S Newmyer and R. H. Lindsey, with them W. G. Guiler and S. E Ewing, for appellants. -- A mere glance at the records in this case discloses the fact that these proceedings are under the general road law, the act of 1836 and its supplements; in fact, the Supreme Court so treated the matter in the decree quashing an appeal which had been taken before the county commissioners took any action in the case: Youghiogheny Bridge Co.'s App., 168 Pa. 454.
We are met at the very threshold of this inquiry by the question, what is meant by the phrase "public road or highway?" We submit that it means a county road, one laid out or opened under the act referred to and its supplements, or one which has been in existence by prescription or by lapse of time and not a street or alley in a borough: In re Vacation of Osage Street, 90 Pa. 114; Palo Alto Road, 160 Pa. 104; Somerset and Stoystown Road, 74 Pa. 62; South Chester Road, 80 Pa. 372; Henry Street, Allegheny City, 123 Pa. 356; Parkesburg Borough Streets, 124 Pa. 524; Norwegian Street, 81 Pa. 352; Erie County v. Com., 127 Pa. 207; Livingston v. Wolf, 136 Pa. 533; McDevitt v. Gas Co., 160 Pa. 375.
The bridge itself is a highway and forms the connecting lines between the highway on opposite sides of the river: Towanda Bridge Co., 91 Pa. 220; Penn Twp. v. Perry County, 78 Pa. 459; Westfield Borough v. Tioga Co., 150 Pa. 153; Erie County v. Com., 127 Pa. 206.
There is no necessity for the erection of the proposed bridge, as is evidenced by a remonstrance against the same, signed by over eight hundred citizens and taxpayers of the county, and by the further fact that the bridge erected by the Youghiogheny Bridge Company constituted, when it was open to public travel, a portion of the highway where the river crosses the same. It was by the act of assembly under which it was erected dedicated to a public use, subject only to the right of the company to exact reasonable tolls for such use: Monongahela Bridge Co. v. Pittsburg & Birmingham Ry. Co., 114 Pa. 478; Rapho v. Moore, 68 Pa. 404; Penn Twp. v. Perry County, 78 Pa. 457; Pittsburgh & West End Pass. Ry. v. Point Bridge Co., 165 Pa. 37.
A street is a highway, but we submit that it is not a highway in the sense contemplated by the act of 1836: Somerset Road, 74 Pa. 64; Road in Moyamensing Twp., 4 S. & R. 106; Callowhill Street, 32 Pa. 361; Smedley v. Erwin, 51 Pa. 445; Ridge Avenue, 99 Pa. 469; Burnish Street, 140 Pa. 531; Private Road in Huntingdon Borough, 149 Pa. 133; South Chester Road, 80 Pa. 370; Road in Milton, 40 Pa. 300; Bedford Bridge, 72 Pa. 42.
W. A. Hogg, with him Boyd & Umbel and J. C. Work, for appellee. -- It is now more than four years since the court confirmed both the proceedings by which Apple street was extended and also the proceedings by which Trader's alley was widened, and these proceedings cannot now be questioned or disturbed: Road in Salem Twp., 103 Pa. 250.
The text books and dictionaries unite in defining a street to be a highway. The decisions of the Supreme Court are to the same effect: Sharett's Road, 8 Pa. 89; Road in Moyamensing Twp., 4 S. & R. 106.
The bridge sections of the act of 1836 apply to boroughs, without question as to jurisdiction: Pottsville Borough v. Norwegian Twp., 14 Pa. 543; Westfield Borough v. Tioga County, 150 Pa. 152; Towanda Bridge Co., 91 Pa. 220; Penn Twp. v. Perry County, 78 Pa. 459.
The fact that this highway has not been traveled is also made the subject of the appellants' first assignment of error. We think it is a sufficient answer that this is not in the record of this case, and not before this court: Conestoga Bridge, 150 Pa. 541.
Before GREEN, WILLIAMS, MITCHELL, DEAN and FELL, JJ.
The boroughs of Connellsville and New Haven, in Fayette county are on opposite sides of the Youghiogheny river. For many years, the two boroughs have been connected by a suspension bridge constructed and owned by a corporation which charges tolls for its use. The bridge is in a good state of repair, and so far as its capacity and safety are concerned is sufficient for the accommodation of the public. On December 1, 1890, a petition, signed by citizens of both boroughs, was presented to the quarter sessions of Fayette county, setting forth that the bridge was necessary to the accommodation of the traveling public, and that payment of tolls was unjust and burdensome, and praying under the Act of May 8, 1876, P.L. 131, that viewers be appointed for its condemnation. Viewers were appointed accordingly, who reported, after full hearing, that the payment of tolls was not an unjust burden on the public and the people of the two boroughs; and further, that the amount of damages that would be sustained by the bridge company, by taking of the same for public use, would be $80,000. This report was filed January 22, 1891. No exceptions were filed to it, nor was anything further done. On April 6, 1891, three months after the report was filed, proceedings were begun in both boroughs to establish a highway across the river, about three hundred feet from the site of the suspension bridge. The borough line of Connellsville includes the river bed to low water mark on the New Haven side; a petition of citizens of Connellsville was presented to the quarter sessions for the extension of a street known as Apple street across the river to low water mark on the opposite side. In New Haven, there was a narrow alley known as Trader's alley running down to the river, which would connect with the proposed extension of Apple street where it terminated at low water mark; proceedings for enlarging this alley to the width of a street were commenced by citizens of New Haven the same day, April 6, 1891, that the citizens of Connellsville moved to extend Apple street across the river. The proceeding to widen the alley does not seem to have been prosecuted further. In the proceedings for extension of Apple street the report was confirmed June 9, 1892, so that on the records there is laid out on paper the extension of Apple street in the borough of Connellsville down to and across the river, connecting with, or opening into, Trader's alley in the borough of New Haven. On September 26, 1892, a petition was presented to the quarter sessions by citizens of the two boroughs, setting forth that a highway, Apple street of Connellsville, connecting with Trader's alley of New Haven, is crossed by the Youghiogheny river; that it was necessary to erect and maintain a bridge across said river for the use of the travelling public, and that the expense of constructing and maintaining said bridge was greater than two adjoining townships or boroughs should bear; they therefore prayed the court to appoint viewers to report, etc. Viewers were appointed who reported favorably on the prayer, and that a bridge should be built across the river where the highway crossed it; and...
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