Pennsylvania Railroad v. Borough of Irwin , 1877 Pa. LEXIS 255 ( 1877 )

Mr. Justice Gordon

delivered the opinion of the court, November 5th 1877.

The railroad company by making use of the former permanent road-bed, not only made a bridge a necessity, but also rendered its perpetual maintenance a necessity, for by no other means could the highway be made to subserve the purposes of its creation. Such being the case, and the company having refused to rebuild, it was the duty of the borough of Irwin so to do, for upon it as to the public, devolved the duty of keeping the roads and streets within its limits in proper order: Newlin v. Davis, 27 P. F. Smith 317; If, however, this rebuilding was a duty, which by law, rested upon the company and which it ought to have performed, then is the borough entitled to recover the cost of such rebuilding from the company: Pottsville Borough v. Norwegian Township, 2 Harris 543; Penna. Railroad Co. v. Duquesne Borough, 10 Wright 223. The remaining question is, did such a duty devolve upon the company ? Where the owner of the land, over which a public road runs, cuts a ditch across such road for his own purposes, he is not only bound to build a bridge but to maintain it perpetually thereafter: Woodring v. Forks Township, 4 Casey 355. But there is no reason why a corporation in a similar case should be exempt from an obligation to which a natural person would be liable; besides this, it is not reasonable that the company having for its own purposes and profit created the necessity for the bridge in question should throw the burden of its maintenance over upon the public; for not only did it give rise to this necessity but that necessity is continued for its own benefit; if the company occupied the old road in the first place, it still continues the occupancy thereof. If it was necessary for it to build the bridge, it is just as necessary for it to rebuild when dilapidation and decay make rebuilding proper. The duty of the company, then, is obvious unless it is released therefrom by some Act of Assembly. But the Act of 1848 so far from relieving it of this obligation recognises and enforces it, for it 'requires the corporation, when it conceives it to be necessary to use a public road, “ to cause the same to be reconstructed, forthwith, at its own proper expense, on the most favorable location and in as perfect a manner as the original road.” The intention here manifestly is that no additional or unwonted burthen should be cast upon the public by the company’s use of the old road; but the maintenance of a bridge is such a burthen, often a very heavy one, and such as the company and not the municipality should support. This duty of bridge maintenance was recognised in the case of the Pennsylvania Railroad Company v. Duquesne Borough, above cited, as against the vendor of the state canals, though the necessity for the bridge in controversy had been created by the Commonwealth, by which it had originally been built, and against which such a duty as maintenance could not have been enforced.

Judgment affirmed.