Bedford Bridge

72 Pa. 42 | Pa. | 1872

The opinion of the court was delivered, by

Agnew, J.

— The proceeding to establish a county bridge consists of two distinct acts — the location of the site by a board of viewers, and the determination of the necessity of its being built by the county, by the court, the grand jury, and the county commissioners. The Act of 13th June 1836, § 35, directs in relation to bridges, that the court shall order a view in the manner provided for in the case of roads. Section 25th provides that in all cases of views for any purpose mentioned in this act, the court shall, on petition of any person interested, direct a second view, or review for the same purpose. A bridge view, which must proceed in the manner provided for in the case of roads, therefore falls directly within the words of the Act of 1836. A review is a matter of right. This is the settled law. By the Act of 5th April 1855, Pamph. L. 189, the road law of the 11th February 1854, Pamph. L. 62, relating to the counties of Beaver, Butler and Lawrence was extended to the county of Bedford. The first sect, of the act of 1854, enacts that the number of road and bridge viewers shall be three, and then directs that “ every view, review, and re-review shall be made by the whole number of persons so appointed,” and extends these provisions to the inspection of bridges. The second section directs that in all cases of the appointment of viewers in the said counties to view the site of a bridge, or to view and locate, vacate, &c., any public.or private road, or to review, re-review the same, the said viewers, reviewers, re-reviewers or one of them shall, &c. ' The third section says: “ If the viewers aforesaid shall decide in favor of locating a ,site of a bridge or a public road, &c., which they were appointed to review or re-review, &c. The third section also extends the right of review to views for damages, which by the decision in Newville Road, 8 Watts 172, had been denied. The 5th section extends the right of review still further to views of damages in the cases of private roads. Thus the Act of 1854 clearly refers reviews and re-reviews to the views of bridge sites as well as to those for public and private roads. This act was drawn up under my supervision when President Judge of the counties of Beaver, Butler and Lawrence, for the purpose of having a single uniform system in the 17th district. It was founded on the sj)eeial act for Washington and Mercer counties, which had been extended to Beaver in the year 1843, and was entitled an “Act to consolidate and amend the road laws ” of those counties, the original act being found defective in several respects. The reasons for the review of bridge views are obvious, and greatly concern the public. The location of the site of a bridge is generally more important than that of the route of a road, and therefore demands all the precautions of views and reviews before it is finally determined. The site of a bridge, unlike the route of a road, which may be changed or vacated, cannot be removed after the bridge is built. The selection of the site is often difficult to determine. The width, depth, and kind of bottom of the stream, the character of its banks, and the access or approach to it must all be consulted. A mistake in these may result in the fate which attends those who have built upon the sand and not upon a rock. Certainly less wisdom ought not to be required of those who build bridges. High bluffs of rock, or a low sandy flat, may make the approaches to a bridge costly in the extreme, and even perilous. In addition to their other duties, bridge viewers are required to consult the connections of the bridge with the adjacent public roads, and hence the 37th section of the Act of 1836 gives to. them the power to change the bed of a road to be connected with the bridge. Where the site of the bridge is confined by the nature of the stream to a certain spot, this may require the diversion of the connecting roads for a long distance. That alone ought to carry a power of review. Thus the letter of the general law, the provisions of the special act, and the reason and necessity of things demand a review.

It is supposed this clause of the 35th section o.f the Act of 1836, is opposed to a review, viz.: “ and if on the report of viewers, it shall appear to the court, grand jury, and commissioners of the county, that such bridge is necessary and would' be too expensive for such township or townships, it shall be entered on record as a county bridge.” But ivhen shall this necessity appear? “ On the report.” Are we to take this as meaning instantly, and to overrule the express language of the act, that in all cases of views for any purpose maintained in the act, reviews shall be granted, the language of the special act also linking views and reviews together, both as to roads and bridges, and the reason and necessity of the thing ? Certainly not, when the whole proceeding is clearly reconcilable with the provisions of the law, as to views and reviews. It shall be in the manner (says the act) provided for in case of roads. Why then should not a bridge report lie over like a road report to the next term for exception and review ? It has been decided that the report is to be governed by the road law as to the time of its return : Bridge over Smithfield Creek, 6 Wharton 363. Why then is not the final confirmation of the report when the location of the site is disposed of, the true time when “ on the report,” the court, grand jury, and commissioners shall determine the necessity of the bridge as a county bridge. In fact the judicious selection of the site is essential to determine the question of expense, which is part of the duty of the court, jury, and commissioners. This construction is not only in harmony with the letter and spirit of the law, but subserves the best interests of the county ; instead of limiting the important act of location to a single set of viewers who may lack in skill, suffer from prejudice, or be misled by influence, or by interest. Or if it be thought a more convenient practice, the court, grand jury, and commissioners may act upon the report returned, subject to exceptions and review as to the location. Having power to establish rules of practice, the court may make the joint action of the three bodies subject to a nisi rule as in other cases. The order of the court refusing to appoint reviewers, and the final confirmation of the report of views are set aside, and the record is ordered to be remitted, and a procedendo awarded.