Pittsburg & Lake Erie Railroad v. Lawrence County

Opinion by

Mb. Justice Mitchell,

The .authority of county commissioners to build a county bridge is derived from statutes, and the steps prescribed for this purpose must be pursued with at least reasonable strictness and diligence. The proceedings in the present case are irremediably defective in both respects. Applications were made to the quarter sessions for a county bridge at or near the location now in controversy, and proceedings were had thereon as found and reported by the court below as follows :

At January sessions, 3883, the viewers reported that the bridge was not necessary.

At April sessions, 1883, the viewers reported in favor of the bridge, but the grand jury disapproved it.

. At January sessions, 1884, the viewers reported in favor of a bridge at the old ferry on the site of a former view, but the grand jury did not approve it.

At June sessions, 1889, the viewers reported in favor of a bridge, but the grand jury disapproved it.

At. March sessions, 1891, the viewers reported the bridge necessary, but did not locate the site thereof as set forth in the petition because “ there is no good location near the points specified in petition.”

' At June sessions, 1891, on a petition for a bridge where the public highway from Newport to Hardscrabble crosses the riven; at what is known or was formerly known as the Van Eman Ferry, the viewers reported that “ the bridge proposed in the petition and order to view is necessary .... and did locate the site thereof, but the site is not at the place named in the petition, where a public road crossed the same, but is about one sixth of á mile further down the river where no public road crosses the same.”

This report was approved by the grand jury September 10, 1.891, and was confirmed by the court, September 19, 1891.

How far this last petition was connected with the preceding ones, or was a new start, does not clearly appear, nor .is it now material to inquire. We may treat it as a movement de novo, and the previous ones as bearing on it only as collateral evidence that the proposed action did not command ready assent from the necessary authorities, and therefore called for careful observance of all the prescribed statutory steps. No further step was taken for seven years and a half until January, 1899, when the county commissioners then in office, without any official approval of the necessity of the bridge or determination that the expense of it would be too great for the townships to bear,- and without entering it on. record anywhere as a county bridge, made a contract with the Pittsburg Bridge Company, one of the defendants, to build the bridge now in controversy. The-attention of the commissioners being apparent^ called to this omission, they subsequently entered on their minutes that “.on motion it was agreed that the commissioners for the county build a bridge over the Beaver river at Newport as prayed for at No. 4, June term, 1889,” and authorized the contract with the bridge company. Even this belated approval, however, did not get through without an additional defect. The bridge reported by the viewers at No. 4, June term, 1889, as already appears, was disapproved by the grand jury, and the commissioners were therefore without any authority to act under those proceedings. To cure this defect an entry was made by the clerk on the margin of the minutes above quoted that “ the number and term referred to in this minute is an error, and should read No. 1, June term, 3891.” Whether this correction was made by the clerk of his own motion, or whether he was directed by the commissioners to make it, does not appear, and, in even the latter case, it is still insufficient and inoperative, as it does not show whether the term and number in 1889 were a mere error of the clerk in recording the motion or were an error in the motion itself as agreed to by the commissioners. In the latter case nothing but a new vote of the commissioners could rectify it, and until such correction the record, as it stands up to the present time, shows a clear defect of authority to build at all.

The learned judge below reviewed these various objections, but was of opinion that they could be effectually cured by a resolution of the commissioners, and were not sufficient to invalidate the proceedings. It was in pursuance of this suggestion by him that the abortive attempt at approval was made by the commissioners which has just been discussed. We cannot concur in this view.

It is argued by appellant that the approval of the bridge as a county bridge by the commissioners must be entered of record in the quarter sessions, and though the statute is somewhat indefinite on this point, yet such seems to be its fair intendment. The Act of June 18, 1836, P. L. 560, provides that “the court having jurisdiction as aforesaid .... shall order a view . . . . 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: ” Sec. 35.

“Whenever a bridge shall be authorized and recorded as a county bridge, it shall be the duty of the commissioners to procure an estimate of the cost thereof, and provide in the county-levies the moneys necessary to defray the same, and proceed to have such bridge erected,” etc.: Sec. 36. While it is not said distinctly on what record the entry shall be made, yet the direction to enter on the record is in the same sentence that gives the court jurisdiction and prescribes the steps in the procedure, a view, and the approval of the report of the viewers by the court, the grand jury and the county commissioners. These are prerequisites to the authority to build, and all of them except the approval by the commissioners are direct proceedings in the quarter sessions. The action of the commissioners should appear in the same record. Unless it does so appear the record shows merely an incomplete proceeding,.and without the preliminary action of the other bodies, the records of the commissioners fail to show any authority for their action. The proper practice is for the commissioners to pass a resolution formally expressing their concurrence in the view that the bridge is necessary and too expensive for the townships, and to file a copy of such resolution in the quarter sessions, the record of which will then show a complete proceeding carrying authority to build.

We are not to be understood as holding that this course is indispensable in the first instance. If it should become important at any time, a copy of the resolution or even a minute of less formal action by the commissioners could no doubt be allowed by the court to be filed nunc pro tunc to complete its record. But in the present case there never was any approval by the commissioners nor even any attempt to approve until too late. The statute contemplates a proceeding at least reasonably continuous. A break of seven years and a half and then precipitate action by new officers is clearly unreasonable. All parties interested might fairly have inferred that the enterprise had been abandoned. The proceedings in this case from the start are unfortunately too grossly irregular and defective to be sustained, and would have to be quashed upon motion of any party having an interest to give him standing.

• The standing of the complainant is questioned but without just ground. The railroad is in long continued and existing possession and operation at the point of controversy. The answer of defendants admits that the construction of the bridge in the manner proposed will necessitate a grade crossing. That of itself is an admission of damage to the complainant. Grade crossings of railroads are intrinsically dangerous and are against the policy of the state. The Act of June 19,1871, P. L. 1361, gives the courts of equity jurisdiction over the crossing of one railroad by another, and commands that “ if in the judgment of said court it is reasonably practicable to avoid a grade crossing,” they shall prevent it. “ The manifest purpose of this,” said Sterrett, O. J., in Penna. 11. Co. v. Braddock Electric Ry. Co., 152 Pa. 116, “ is not merely to discourage grade crossings because of their danger to the public as well as injury to the company whose road is crossed, but also to prevent them whenever in the judgment of the court it is reasonably practicable to avoid ” them. This is the uniform doctrine of our cases: P. & C. R. R. Co. v. S. W. Penna. Ry. Co., 77 Pa. 173; Perry Co. R. R. Extension Co. v. Newport, etc., R. R. Co., 150 Pa. 193; Scranton, etc., Traction Co. v. Del. & Hudson Canal Co., 180 Pa. 636; Penna. R. Co. v. Warren Ry. Co., 188 Pa. 74; Chester Traction Co. v. P. W. & B. R. R. Co., 188 Pa. 105; Altoona, etc., R. R. Co. v. Tyrone, etc., R. R. Co., 160 Pa. 623 ; Pittsburg June. R. R. Co. v. Fort Pitt Ry. Co., 192 Pa. 44; Williams Valley R. R. Co. v. L. & W. Street Ry., 192 Pa. 552. In Bryner v. Youghiogheny Bridge Co., 190 Pa. 617, it was said: “ The courts have not yet been invested with the same authority to regulate grade crossings of railroads over ordinary streets and highways, but the same considerations of safety to life and property, though in a less imperious degree, require the application of the same general policy.” It must therefore be accepted as the settled policy of the state as administered by this court, that wherever the subject comes within its jurisdiction and control, no grade crossing of a railroad over another railroad or a common highway will be permitted except in case of manifest and unavoidable necessity.

Decree reversed, bill reinstated and injunction directed to be issued enjoining defendants, their officers, agents and employees from further proceeding in the construction of the bridge in controversy in such manner as to interfere with the property or operations of the complainant. Costs to be paid by the appellees.