County of Erie v. Commonwealth

127 Pa. 197 | Pa. | 1889

Opinion,

Mr. Justice Williams :

The duty to make repairs in a highway rests at common law on the township or other subdivision of the state on which the duty of opening and making the highway rests. The local road officers represent the district for which they are chosen, and must discharge the duty of opening and repairing the highways within it. Until the law-making power intervenes and separates the duty to open from that to repair, and imposes each upon different bodies or officers, the duty is one and rests on the officers of the township in which the road lies.

It will sometimes happen, however, that the line of a road crosses a river or other considerable stream of water and that the expense of carrying the road across the water by a bridge is greater than the township is able to bear. In that case, the law provides that the county shall come to the aid of the township and build the bridge. The act of June 13,1836, regulates i,he manner in which this may be done. The facts must be made known to the Court of Quarter Sessions of the proper county by a petition. Viewers are then appointed by the court to examine into and report upon the facts stated in the petition. The report of the viewers must be submitted to the grand jury for its approval. If this is obtained, the court and the county commissioners must also concur, before the expenditure of one dollar by the county is permissible. If the bridge is finally determined upon, an estimate of the cost must be made, and the building of the bridge may then be entered upon. After it is completed, it must be inspected by another view to be appointed by the Court of Quarter Sessions, and if they report to the court that the work has been properly done, the money may be safely paid out of the county treasury. The object of this legislation is to relieve the township by imposing a part of its duty under certain prescribed circumstances on the county, and paying the cost of discharging that duty out of the funds of the county which otherwise would not be applicable to such a purpose. But the law does not make provision for its care after its erection. That duty remains on the township, and the finished bridge, when opened for travel, becomes a part of the highway and passes as such under the care of the township officers. The county has no road officers. Its duty is simply to build the bridge, when the township cannot; and, that duty done, it has no further responsibility for its maintenance than for the maintenance of the roadway leading to or from it.

Such was the law in Pennsylvania until the act of 1843, as was clearly shown in Commonwealth v. Monroe County, 2 W. & S. 495. By the act of 1843 the duty of repairing county bridges was placed, upon the county, but by the terms of the proviso and by subsequent acts about one half the counties of the state were excepted from its provisions. The county of Erie was taken out from its operation by the act of April 6, 1854, and has since been under the rule that prevailed before the act of 1843 was passed. If tliis was not so, it is evident that the effect of the act of 1843 was confined to repairs, in the ordinary sense of that word, and could not authorize a rebuilding of the superstructure at the discretion of the county commissioners. This would still require all the formal prerequisites provided by the act of 1836, the petition, view, report, and the action of grand jury, court and county commissioners. The delay consequent upon these proceedings was sometimes found to work great inconvenience to the traveling public and to relieve against it the act of May 5, 1876, was passed. It provided that in all cases where a county bridge had been “blown down, destroyed, or partially destroyed, or swept away by floods, freshets, ice, storm, fire or other casualty,” it should be the duty of the county commissioners to rebuild the bridge so blown down, destroyed or swept away, subject, however, to inspection in the same manner as an original construction. As the county of Erie is not under the act of 1843, it is not necessary to inquire particularly into its effects, nor to determine the relative duties of county and township under it.

This proceeding is not under the act of 1876, nor is it alleged that this bridge has been blown down or destroyed by casualty. The question presented is over the duty to make repairs under the provisions of the act of 1836, and we are clearly of opinion that the duty rests on the township and not on the county. The case of Howe v. Crawford County, 47 Pa. 361, on the authority of which the learned judge of the court below ruled this case, is in conflict with the Commonwealth v. Monroe County, supra, and with the rule now laid down. If the condition of the bridge is such as to justify its rebuilding under the act of 1876, it is possible that upon a proper application a mandamus may yet issue. If it is not, but its dilapidation is such that a new bridge must be built, it will be necessary to resort to a proceeding under the act of 1836. If however the question presented is. as we understand it to be, one about liability for ordinary repairs, the townships in the county of Erie are liable, and for that reason this petition should be dismissed.

The decree made in this case is set aside and the record remitted for such further proceedings as may be necessary under the foregoing opinion.