Appeal of Hogsett

2 Pa. Super. 265, 1896 Pa. Super. LEXIS 50

• Court: Superior Court of Pennsylvania
• Decided: July 16, 1896
• Docket: Appeal, No. 90
• Status: Published

Opinion

Opinion by

Rice, P. J.,

These proceedings were had under section 35 of the act of June 13, 1836, P. L. 551, relative to. the erection of county bridges, and, so far as the record shows, they were regular.

The section provides that when a river, creek or rivulet over which it may be necessary to erect a bridge, crosses a public road or highway, and the erecting of such bridge requires greater expense than it is reasonable that one or two adjoining townships shall bear, the court shall, on the representation of the supervisors or on the petition of any of the inhabitants of the respective townships, order a view in the manner provided for in the case of roads, and if, on the report of the 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 of record as a county bridge.

A subsequent act authorizes the county commissioners, when they do not deem it advisable to enter the bridge of record as a county bridge, to assist the township or townships if they consider it proper to do so: Act of May 25, 1887, P. L. 267.

The necessity for the bridge, the ability of the township or townships to bear the expense, and the propriety and expediency of erecting it as a county bridge, or of assisting the township or townships to erect it are matters committed to the judgment and discretion of the viewers, the grand jury, the county commissioners and the court below, exercised in successive stages of the proceedings, and their decision is not reviewable here, if the proceedings are regular and were authorized by law: Conestoga Bridge, 150 Pa. 541. All of the exceptions going to the regularity of the proceedings have been fully considered and correctly disposed of by the learned judge who presided below, and we can add nothing to what he has said concerning them.

But it is contended that the proceeedings were not authorized by law, because there is no public highway laid out, or opened, or in existence, which crosses the Youghiogheny River at the site of the proposed bridge, nor was such a highway ever in existence, either by authority of law, prescription or lapse of time. If by this sweeping assertion it is intended to deny the regularity of the proceedings whereby the extension of Apple street and the widening of Trader’s alley were ordained, it seems sufficient to say that the records of those proceedings are not properly before us for review on this appeal, and the regularity thereof cannot be questioned collaterally. If it is meant that the proceedings, although regular in form, are wholly null and void because there was no authority of law for laying out a street across a navigable stream, the answer is that there is as much authority for that as there is for laying out a township road in the same way. To say that there is no authority for one is to say that there is no authority for the other, and thus we would reach the absurd conclusion that a county bridge cannot be built across a navigable stream under the 85th section of the act of 1836, because the conditions, namely a public road or highway crossed by a river, can never exist in such a case. To hold that a ferry or ford or a bridge must have existed before in order to bring the case within the statutory conditions would be more plausible, but that conclusion would be inconsistent with the liberal and reasonable interpretation of the act which has been given in all the cases from Smithfield Bridge. 6 Whart. 362, to Conestoga Bridge, 150 Pa. 541. The learned judge who presided below well says: “ The act of assembly certainly cannot be so limited. Such construction would be inconsistent with the 37th section of the act which authorizes a change of roads to effect the most suitable and least expensive location.” Just such changes were made in both of the cited cases. In the former Sergeant, J., said: “ There is nothing in the act of assembly that restrains the building of new bridges either as to place or number, provided they are approved of in the manner pointed out in the 35th section of the act of 13th June, 1836.” As to building bridges over navigable streams he said: “ The legislature had competent power to authorize the erection of bridges over streams declared public highways, either by a special act or a general one; and the act of 13th June, 1836, gives authority as to all rivers, creeks and rivulets without exception.”

The only true way to look at the case is to take for verity the facts alleged in the petition, found by the viewers and grand jury, and necessarily implied in the action of the court and county commissioners, namely: that the site of the proposed bridge is at a point “ where the public highway leading from Connellsville to New Haven, and known as Apple street in Connellsville and as Trader’s alley in New Haven, crosses.the Youghiogheny river ” that, but for the river, these two borough streets would constitute one continuous highway, connected with the other public roads and streets of the boroughs and county; that a bridge at that point is necessary for the accommodation, not only of the inhabitants of the two boroughs, but also of the public at large; and that the expense of erecting it would be greater than the boroughs ought to be required to bear. All of these facts are either distinctly found or are necessarily implied in the record before us. There arises then the question whether the statute contemplates the erection of a county bridge in a borough or connecting two boroughs.

The appellants’ counsel contend that the words “ public road or highway,” as used in the act of 1886, mean a county road, one laid out or opened under that act 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.. The decision of this question, if it is made to turn upon the meaning of the words without reference to the context, is free from difficulty. The word “road” in a proper connection may be fitly used to designate a city or borough street: Moyamensing Road, 4 S. & R. 106; Sharett’s Road, 8 Pa. 89. But here the more comprehensive term “ highway ” is also used. This is the generic name for all kinds of public ways, including county roads, and city or borough streets. A way is, in legal contemplation, a highway, whether established by prescription or by dedication, or under the right of eminent domain, if there is a general right to use it for travel. The mode of its creation does not of itself determine its character, for this in general is determined by the rights which the public have in it: Elliott on Roads, 2.

Streets regulated and repaired by the authority of a municipal corporation are as much highways as are public roads laid out by authority of the quarter sessions, and the commonwealth, by virtue of its paramount authority as trustee for the public, will protect their rights therein against unlawful encroachments, sanctioned though they be by the municipal authorities. This being the general meaning of the words “ public road or highway,” is there anything in the context to show that they were used in a restricted sense ?

The act of 1836 was intended to provide a general and comprehensive system for laying out and opening roads both public and private, and for erecting necessary bridges. At the time of its passage it became the only general lawupon the subject. Excepting in the 22d section relative to the vacation of streets, etc., in cities and boroughs, and in sections 76 to 81 relative to the procedure in Philadelphia, no other municipal divisions of the state are mentioned but counties and townships.

If the narrow construction contended for must be given to the 35th section because it speaks of the expense to townships, then for the same reason many of the other provisions of the act must be construed to apply only to roads in townships, and if this construction had been given to the act there would have been (until the passage of the general borough law of 1851) no general law under which roads or streets in boroughs could have been laid out and opened. Very soon after the act was passed the question was raised whether the court of quarter sessions had authority to lay out a public road in a borough under its provisions, and it was held that it had: Newville Road Case, 8 W. 172 (1839). Since that time the uniform construction of the statute has been that it was intended to include, within the scope of its provisions, borough streets as well as township roads, and that it is still in force except so far as its provisions have been supplied by later legislation. “ The evident purpose of the act was to create an uniform system. The city and county of Philadelphia are indeed excepted from the general provisions of the act, but the exception itself raises the strongest implication (if it be necessary to resort to implication) that all other cities and towns are embraced: ” Callowhill St., 32 Pa. 361. These are but a few of the many cases sustaining the same general proposition: Sharett’s Road, 8 Pa. 89; Smedley v. Irwin, 51 Pa. 445; Somerset and Stoystown Road, 74 Pa. 61; In re Ridge Ave., 99 Pa. 469; Burnish St., Pottsville, 140 Pa. 531; Private Road in Huntingdon, 149 Pa. 133. In Pottsville Boro, v. Norwegian Township, 14 Pa. 543, an action brought by the borough to recover from the township one half the cost of a bridge built on a public highway over a creek, which was the dividing line between the two, was maintained under section 34 of the act of 1836. The application of the decision to this case consists in this, that the section cited speaks only of townships; the defense was urged and sustained in the court below that no valid contract was shown which bound the township, but the judgment was reversed, the court saying, “ it is the law which throws the burden on the township of Norwegian, and not the contract of its supervisors, and it must redeem the obligation.”

The question, though arising under a different act, was particularly discussed in the case of Road in Milton, 40 Pa. 300. The applicability of the decision will be seen upon an examination of the act of March 8, 1859, P. L. 111, and the following quotation from the opinion of Chief Justice Lowbje : “We are not impressed by the fact that the Northumberland county road law of 1859 does not mention boroughs and borough officers, but only townships and township officers; and think that notwithstanding this it applies also to roads in boroughs. The general law of 1836 has the same omission, and yet it has always been regarded as the road law for boroughs as well as townships; this word being used as a general term including all municipal divisions relating to roads where no special provision is made.”

The ease of Bedford Bridge, 72 Pa. 42, was a proceeding for the erection of a county bridge connecting a borough and a township, but it was not even suggested that there was any doubt as to the authority therefor.

In the recent case of Westfield Borough v. Tioga Co., 150 Pa. 152, it appeared that, pursuant to the proceedings under the 35th section of the act of 1836, the county had erected the abutments and superstructure of the bridge but refused to construct the approaches. If we correctly understand the case the bridge was wholly within the borough of Westfield. A mandamus was applied for and granted, and on appeal the decree was affirmed on the opinion of the court below. The precise question discussed was whether a certain local law imposed the duty to build the approaches upon the local municipality, but the question whether a county bridge could be erected in a borough was also in the case, and as to that no doubt appears to have been entertained. The act of May 8, 1876, P. L. 131, as amended by the act of May 3, 1878, P. L. 41, authorizing the acquisition of toll bridges by the county, and declaring them county bridges, requires the viewers to report whether “the payment of tolls on the same is an unjust burden on"the travelling public and the people of the township or townships where the same is located.” The court and grand jury must find, as a condition precedent, that “ the payment of tolls thereon is an unjust burden on the travelling public and the people of the township or townships near where the same is located.” Not a word is said about boroughs, but I am not aware that in any of the cases that have arisen there has been any intimation that the acts are confined to bridges in townships. Indeed, in City Ave. & Germantown Bridge, 164 Pa. 394, it was held that they are applicable to Philadelphia county. See also Montgomery Co. v. Bridge Co., 110 Pa. 54; Mifflin Bridge Co. v. Juniata Co., 144 Pa. 365.

There would be glaring inconsistency if it were to be held that a county bridge may be acquired, but cannot be built, in a borough.

The act of April 29, 1891, P. L. 31, providing for the erection of bridges joining a city and a borough, is referred to as showing the construction which the legislature has put on the 35th section of the act of 1836. Just how much weight an implied legislative construction of a prior law is entitled to is a question we need not discuss. There is no certain or even plausible inference that the act of 1891 was passed because the legislature supposed there was lack of authority, under the existing law, to erect a county bridge even in the particular case to which that act applies, much less that they supposed there was not authority in a case like the present.

The reasons which moved the legislature to enact the 35th section are apparent on its face, and they apply with as much force to the bridging of highways in boroughs as in townships and at the present time as at the time of its enactment. Having regard to the purpose of the section, and adopting the same liberal interpretation that has been given to the act as a whole, we have no difficulty in arriving at the conclusion that the legislature intended to include borough streets as well as township roads within the general and comprehensive terms “ public road or highway.”

All of the specifications are overruled, and the decree is affirmed.