#### Commonwealth ex rel., Appellants, *v.*Dickey et al.

*Bridges*— County *bridges*— Repair—Mandamus—Estoppel.

In mandamus proceedings to compel county commissioners to rebuild a bridge which was destroyed by a flood, where the defense was that the bridge destroyed was not a county bridge, but where it clearly appeared that in 1836, the county commissioners after proper proceedings had erected a bridge at the point where the bridge was destroyed and had paid for the same out of the county rates and levies; that said bridge had been washed away by a flood in 1893 and another bridge had been erected by the county commissioners in its place, the latter being the bridge which had recently been destroyed, the fact that a record was missing which would conclusively show such bridge to be a county bridge was not material and the mandamus should have been awarded as prayed for.

Argued March 18, 1918.

Appeal, No. 203, Jan. T., 1917, by plaintiffs, from order of C. P. Clinton Co., Oct. T., 1916, No. 77, refusing mandamus in case of Commonwealth of Pennsylvania ex relatione H. M. Counsil, District Attorney, v. Adam Dickey, James L. Kemmerer, and Robert Myers, Commissioners of Clinton County.

Before Brown, C. J., Potter, Stewart, Frazer and Walling, JJ.

Reversed.

Petition for mandamus. Before Hall, P. J.

The opinion of the Supreme Court states the facts.

*122July 17, 1918:

The court refused the mandamus. Plaintiffs appealed.

*Error assigned*was the order of the court.

*William II. Keller,*First Deputy Attorney General, with him *Henry Hippie*and *Francis Shurik Brown,*Attorney General, for appellant.

*H. S. Furst,*for appellees.

Opinion by

Mr. Chief Justice Brown,

This appeal is from the refusal of a writ of mandamus to compel the commissioners of Clinton County to rebuild a bridge Yfhich was swept away by a flood in 1913. The writ was denied because the court below was of opinion that the structure so destroyed was not a county bridge, and the appellees were, therefore, under no duty to rebuild it. The original construction of a county bridge is regulated by statute, and a county cannot be required to build it unless all statutory provisions are complied with: Railroad Company v. Lawrence County, 198 Pa. 1; Commonwealth v. Baker, 212 Pa. 230; Commonwealth v. Bowman, 218 Pa. 330. The prerequisites to the authority of county commissioners to build a bridge are: (1) A report of viewers that the bridge is necessary and would be too expensive for the township; (2) that these facts have been made to appear to the court, grand jury and commissioners of the county; and (3) that the bridge has been entered on record as a county bridge. The question before the court below was not as to the duty of the county commissioners to build a bridge in the first instance, but as to their duty to rebuild what the relator avers had been a county bridge, originally constructed and subsequently maintained by the county under a statutory duty to do so.

From the admitted facts in this ease there is a conclusive presumption that the destroyed bridge was a county bridge, and we proceed to state them: In 1856 *123the commissioners of Clinton County presented their petition to its Court of Quarter Sessions', setting forth that, as it had appeared to the. said court, to the grand jury of the county and to the petitioners that a bridge over Chatham run, at the point where the bridge involved in this proceeding was built, was necessary, and that its erection would be too expensive for the township in which it was located, the same had been entered of record and the petitioners had procured an estimate, as nearly as might be possible, of the money needed to erect such bridge, amounting to the sum^ of $1,772.44, which sum they had provided out of the county rates and levies, and had proceeded to have the bridge erected by entering into a contract with certain contractors for the building of the same; that the bridge was completed and the contractors had in every respect fulfilled their contract, and the prayer of the petition was for the appointment of persons to inspect the said bridge, the working thereof, and make report accordingly. The language of this petition followed strictly the words of the Act of June 13, 1836, P. L. 551, relating to the erection of county bridges, and averred affirmatively that everything required by the statute in imposing upon the county the duty of constructing the bridge had been complied with. But the admitted facts go still further. In 1893 the county commissioners presented a petition to the Court of Quarter Sessions, setting forth that the “county bridge” which had been erected by their predecessors over Chatham run had been washed away by a flood; that they had entered into a contract for the erection of another in its place, and that the contractors had rebuilt the bridge. The prayer of the petition was for the appointment of viewers to inspect the same and make report to1 the court. From the foregoing facts the conclusive presumption is that the bridge over Chatham run was a county bridge more than sixty years ago, and the present county authorities are estopped from saying that it ought not to be regarded as such merely because a record is missing which it was the *124duty of tbeir predecessors to preserve. Such record evidently was kept, for tbe petition presented to tbe court in 1856 avers that tbe bridge “was entered of record,” and tbe present county commissioners, in tbeir effort to impose upon tbe State tbe duty of rebuilding tbe bridge, are not to be permitted to take advantage of tbe failure of some former board of county commissioners to preserve this record of sixty years ago. If it bad been preserved, tbe presumption is it would show that tbe county commissioners of 1856 bad done everything required of them as public officials by tbe County Bridge Act of 1836, for omnia prsesumuntur rite esse acta: Vernon Township et al. v. United Natural Gas Company, 256 Pa. 435.

Though tbe bridge which tbe appellees refuse to rebuild is on a State route, tbe duty of building and maintaining a bridge there, which has rested on tbe county for more than sixty years, still continues: Commonwealth ex rel. v. Bird, 253 Pa. 364, and Commonwealth ex rel. Attorney General v. Gross et al., January Term, 1917, No. 340, 261 Pa. 476.

Tbe order of tbe court dismissing tbe petition for a mandamus is reversed, and tbe record is remitted with direction that tbe writ be issued as prayed for.