41 Pa. 147 | Pa. | 1862
The opinion of the'court was delivered,
The plaintiff having lost a coal-boat by collision with one of the piers of a bridge over the Monongahela river, belonging to the defendants, brought an action against them to
The defendants were incorporated and empowered to build a bridge across the Monongahela, from the terminus of McKee street in Birmingham, to Cross street in the city of Pittsburgh, by virtue of an Act of Assembly, passed April 8d 1837, P. L. 239, and its supplements. But by none of these acts was the mode prescribed in which the bridge should be built. The Act of 1837 only required that the company should raise their bridge “a sufficient height above ordinary freshets in the Monongahela river, as not to interrupt the navigation of the said river by steamboats.” The bridge not having been built within the time limited by the statute, other acts were subsequently passed, reenacting the original act, and extending the time for commencing and completing the work. One of these, a supplement, passed April 9th 1856, P. L. 430, contained a proviso that the company should be subject to all the provisions and restrictions of the act regulating bridge companies, approved April 12th 1855. Among these provisions was one “ that the bridge shall be so constructed as not to interfere with the free navigation of said creek or river.” But by the subsequent Act of April 21st 1857, P. L. 280, the proviso in the supplement of April 9th 1856, which subjected these defendants to the provisions of the general Act of 1855, regulating bridge companies, was repealed. They had, therefore, a general power to construct their bridge, limited by no express restrictions. That power of course included the right to construct and maintain piers in the bed of the river; for at the time when the Act of 1837 was passed, and when the franchise was granted, support of bridges by piers was, as it still is, common and usual. It hardly needs to be said that the grant of a franchise is the grant of what is usual and necessary for its enjoyment. Unless, therefore, there was some restriction upon the rights of the defendants, other than such as was introduced into their charter, it is clear that their erection and maintenance of piers in the river was not unlawful. And if not unlawful, then the plaintiff can maintain no action on account of any loss he may have sustained, consequent upon the simple erection and maintenance. Then the act of the defendants was only the
It is argued, however, that the defendants must be considered as having taken their charter subject to the restrictions of the Mill-Dam Act of 1803, and subject also to the requirements of an
The other branch of the case is in the averments that the defendants had' been guilty of negligence and want of skill in the construction and maintenance of their piers, a consequence of which was the loss which the plaintiff sustained. To sustain these averments, evidence was attempted to be given. There was no proof, however, of negligence in the work of construction itself, or of neglect to keep the piers in repair, or of any wanton misfeasance to the property or rights of the plaintiff. All that was even attempted to be proved was an alleged error in the location of the piers, and that they would have been smaller
The District Court was therefore right in entering a judgment of nonsuit against the plaintiff.
The judgment is affirmed.