tion to restrict the exercise of its public powers must be manifested by words so clear as not to admit of inconsistent meanings. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 57.*] 3. WATERS AND WATER COURSES (8 183*). MUNICIPAL WATER SUPPLY POWER OF BOROUGH. mains and pipes into the village of Hanover township, which, in September, 1886, was incorporated as the borough of West Bethlehem. The company on July 17, 1885, accepted the Constitution of 1874; and on November 20, 1899, filed in the office of the Secretary of the Commonwealth its acceptance of the Constitution and of the corporation act of April 29, 1874 (P. L. 68), and its supplements. The Mountain Water Com A borough may adopt one of two methods, which exhausts its municipal power and prevents it resorting to the other for a supply of water, only to supply water "for use of the inhabitants" of a borough, and not to supply wa-pany was incorporated in July, 1893, and the ter for municipal purposes. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 183.*] 4. WATERS AND WATER COURSES (§ 197*)-ACTIONS-ISSUES AND PROOF. Bethlehem Consolidated Water Company in January, 1902. The three companies were on April 19, 1902, merged into the Bethlehem Consolidated Water Company, which, on A water company's bill to enjoin a bor- December 3, 1903, sold and conveyed to the ough from issuing bonds and laying mains for plaintiff, the Bethlehem City Water Comthe supply of water not being filed by the plain-pany, all its franchises and property. tiff as a taxpayer, the validity of an election to ascertain whether the municipal indebtedness should be increased cannot be determined. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 197.*] Appeal from Court of Common Pleas, Northampton County. sed. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and STEWART, an At ordinance Prior to the incorporation of West Bethlehem borough, the water company laid its mains and pipes through the principal streets of the former village, then in Hanover township, and, at the instance of the inhabitants, supplied them with water for domestic purposes and fire protection. Bill in equity by the Bethlehem City Water that time there were 8 fire plugs in the Company against Bethlehem Borough and village. The company has since the incorpoothers to enjoin the borough from issuing ration of the borough continued to supply bonds, and from laying mains and doing water for municipal and domestic purposes, other things for the supply of water in a and has enlarged and extended its plant to portion of the borough of Bethlehem, formerly constituting the borough of West Bethle-meet the increased demand of the growing population of West Bethlehem borough. hem. From a decree for complainant, deThe number of fire plugs at present is 39. fendants appeal. Reversed, and bill dismis. In December, 1908, the town council of the defendant borough passed which was approved by the burgess providing for an election to determine upon an increase of the borough's indebtedness for the purpose of erecting a water plant to supply water to the borough of Bethlehem, including the territory embraced in the former borough of West Bethlehem. The election was held and resulted in favor of the proposed increase of indebtedness. This bill was filed by the plaintiff company to enjoin the defendant borough and its officers from increasing the municipal indebtedness and from issuing any bonds for the purpose of raising funds for the construction of waterworks, and from laying mains in and supplying water to the territory formerly comprising the borough of West Bethlehem, now a part of the present borough. A perpetual injunction was issued as prayed for, and the defendant borough has appealed. JJ. George R. Booth and John G. Johnson, for appellants. J. Davis Brodhead and Herbert J. Hartzog, for appellee. MESTREZAT, J. The borough of Bethlehem, Northampton county, was incorporated in 1845, and in 1854 became subject to the general borough act of April 3, 1851 (P. L. 320). The borough of West Bethlehem was incorporated under the same act in 1886 out of territory in Hanover township, Lehigh county. A small stream-the county line-lay between the two boroughs, which were consolidated in 1904 and constitute the present borough of Bethlehem, the defend ant. [1] The plaintiff contends that the borough of West Bethlehem by its action and relations with the plaintiff company and its predecessors, resulting in an implied contract with the water company to furnish a supply of water to the borough, has exhausted its power to supply water to its citizens, and is estopped from erecting and maintaining its own plant for that purpose. The question for decision in the case is therefore whether under the facts and the law the borough has The Bethlehem South Gas & Water Company was incorporated by a special act of assembly approved April 13, 1864 (P. L. 403), and was empowered to introduce into “the village of Bethlehem South, and the villages adjoining, in Saucon, Salisbury, and Hanover townships, in the counties of Northampton and Lehigh, a sufficient supply of gas and pure water." The company was organized in 1867 and immediately thereafter began to supply Bethlehem South with water. In 1884, the company extended its parent that none of the acts of the municipality suggested by the plaintiff discloses an intention to contract with the water company to provide water "for the use of the inhabitants" of the borough or to make the company the municipal agent for such purpose. The water system of the plaintiff company, as we have seen, was constructed before the incorporation of the borough, and the inhabitants of that territory were being supplied with water by the company. It entered the territory and laid its mains and pipes without permission, invitation, or request of the municipality, and solely by virtue of the authority conferred by its char a right to construct its own water plant. 1 its function for the general good, is not to It was found that "no express contract was be shorn of its power by mere implication ever entered into between the plaintiff or its and that the intention to restrict the exerpredecessors and the borough of West Beth- cise of its public powers must be manifestlehem, defining the relation existing between ed by words so clear as not to admit of two the said parties, either as to the amount different or inconsistent meanings, it is apwhich the borough was to pay for water supplied, or as to the term in which it was to be supplied; and no ordinance granting permission to occupy the streets was ever asked for or received by the plaintiff or its predecessors from the borough of West Bethlehem or the defendant borough." This finding would ordinarily, under our cases, be a sufficient reply to the contention of the plaintiff company that the borough had selected another agency to supply water to its inhabitants, and was therefore estopped from constructing its own plant for the purpose. It is argued, however, and upon this the company, relies to sustain its position and the decree in its favor, that there is and has ter. There was no express contract to supbeen since 1887 by reason of the act and ply water to the township or to the borconduct of the parties an implied contract ough. The company, therefore, in furnishwhereby the boroughs, in consideration of ing water for fire protection occupied the the furnishing of water by the plaintiff and same relation to the borough that it did to its predecessors, agreed not to supply the any other consumer. The borough paid the inhabitants of West Bethlehem borough with company fixed rates for the service as other water through its own municipal agency. consumers did. The extension of the mains We find nothing in the record to sustain and the erection of additional fire hydrants this contention. The company had erected did not change the relation of the parties its plant and was supplying water to the whether it was done at the request or comterritory of West Bethlehem for domestic mand of the borough. There was no conand fire purposes before the existence of tractual relation between the parties by the borough. This was done by virtue of its which the borough could enforce its demands. charter powers. Subsequent to the creation These facilities became a necessity as the of the borough, it continued to perform the borough grew and the consequent demand for same service, not by reason of any contract water increased and were added in compliwith the borough, but in exercise of the ance with the company's corporate duty and same powers. It is said, however, and it as a matter of business expediency to inmay be conceded, that after the incorpora- crease the revenues of the water company. tion of the borough in 1886 the water com- The money expended by the company for pany enlarged its plant, extended its mains, these purposes was repaid by the increase in that additional fire plugs were installed at its revenues resulting from the greater numdifferent points in the borough at the request ber of consumers. Facilities for supplying of the municipality and for which the bor-water to additional private consumers beough paid an annual rent, that the council agreed to pay for fire plugs at certain locations if the company would extend its mains to those points, and that the borough published statements showing expenditures to the plaintiff company and its predecessors for water received for municipal purposes. How do either of these facts or all of them together establish an implied contract that the "borough agreed not to supply the inhabitants of West Bethlehem with water through its own municipal agency"? The general borough act of 1851 confers upon every borough incorporated under the act the "power to provide a supply of water for the use of the inhabitants." It is this power, when once exercised, that is exhausted and estops the borough from adopting another method to supply water. [2] Keeping in view the settled doctrine came necessary and were furnished. Without the extension of its mains and the additional fire hydrants, the company could not exercise its charter power "to supply water to the public" within the territory for which it was incorporated, and the failure to do so would have endangered the charter and subjected the company to statutory proceedings to compel it to perform its corporate duties. It is equally true that without the additional facilities the company could not have increased its revenues and its profits. [3] Its action in acceding to the borough's request to furnish additional facilities for supplying water for municipal purposes cannot, therefore, be regarded as evidence of an implied contract to supply water "for the use of the inhabitants" of the borough. It is for that purpose, and not for supplying water for municipal purposes, that a borough (231 Pa. 497) GEHRINGER v. LEHIGH COUNTY. 1. BRIDGES (§ 40*)-USE FOR TRAVEL-LIABIL- hausts its municipal power and prevents it resorting to the other for a supply of water. There is not a single act by the borough disclosed by the record that shows an intention to divest itself of its power to construct its own system to provide a water supply for use of the inhabitants of the mu-tained a bridge properly in accordance with its nicipality. On the contrary, the intention not to do so distinctly appeared when, in 1904, the borough declined the company's proposition that the parties should enter into a 10-year contract for water for fire protection, and that the borough should take 10 additional fire hydrants. The extent of its relations with the water company was the purchase at fixed rates of water for fire protection and other municipal purposes, and it therefore occupied the same relation to the company as any other consumer. It is idle to say that such conduct on the part of the borough was the adoption of another method for supplying water, and estopped the municipality from constructing its own plant in the exercise of its statutory power to furnish water to its citizens. ERROR-INSTRUCTIONS. The affirmance of a point that it is the duty of the county commissioners on being informed that a bridge is out of repair to examine it thoroughly, and make such repairs as will render it perfectly safe for ordinary travel, or to close it up to prevent the public use of it, though stating the law somewhat strongly by the use of the phrase "perfectly safe," is not reversible error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4221-4224; Dec. Dig. § 1064.*] BRIDGES (§ 46*)-USE FOR TRAVEL-ACTION FOR INJURIES-QUESTION FOR JURY. In an action against a county for injuries from the breaking of a floor of a bridge, there being evidence that the county commissioners sufficiency of the inspection is for the jury on had inspected the bridge, the question of the the evidence, guided by the impression which the witnesses made on them as to the sincerity and thoroughness of the tests made. Our conclusion is in accord with our cases on the subject, as a careful consideration and a correct apprehension of the decisions will disclose. The most recent case is Taren-3. tum Water Co. v. Tarentum Borough, 230 Pa. 148, 79 Atl. 402. There the water company laid its mains without authority of the borough, and after supplying water to the public for some time council authorized a contract which was subsequently executed by the proper officers of the borough and water company by which the latter was to furnish water to the borough for a certain number of fire hydrants at a fixed rate, and to consumers at the rate the company was then charging. The fire hydrants were then installed, and the company extended its lines. We held that the borough was not precluded from furnishing its own supply of water for its inhabitants. We are all of the opinion that there is nothing in this record that warrants a decree prohibiting the borough from constructing its own water plant. The [4] This bill was not filed by the plaintiff company as a taxpayer, and it is not attempting to assert its rights as such. validity of the election to ascertain whether the municipal indebtedness should be increased cannot therefore be determined in this proceeding. The question was properly raised and was decided on a taxpayer's bill filed in another case against the defendants in this case, and we file an opinion herewith in an appeal in that case-Stem v. Bethlehem Borough, 80 Atl. 984—sustaining a decree holding the election to be invalid. The decree of the court below is reversed, and the bill is dismissed, at the cost of the appellee. [Ed. Note.-For other cases, see Bridges, Dec. Dig. § 46.*] 4. BRIDGES (§ 46*)-USE FOR TRAVEL-ACTION FOR INJURIES-INSTRUCTIONS. Where the inspection of a bridge by the county commissioners was shown by the evidence to be most casual, the affirmance of a point charging that the omission to search for and discover latent defects resulting from the decay of material used in the bridge is evidence of negligence properly chargeable to those whose duty it is to repair, and that when a bridge has served for the time timbers are expected to last, and it may reasonably be expected that decay has set in, it is negligence to omit all proper precautions to ascertain its condition, was not error. [Ed. Note.-For other cases, see Bridges, Dec. Dig. § 46.*] 5. BRIDGES (§ 37*)—USE FOR TRAVEL-LIABILITY FOR INJURY. agency is not liable for the negligence of its The rule that a county acting as a public officers does not apply to the obligation to repair and properly maintain county bridges, that the commissioners, the fulfillment of which the being a positive statutory duty imposed upon public has a right to demand. [Ed. Note.-For other cases, see Bridges, Cent. Dig. §§ 103-105; Dec. Dig. § 37.*] Appeal from Court of Common Pleas, Lehigh County. Action by Annie E. Gehringer against Lehigh County. From a judgment for plaintiff, defendant appeals. Affirmed. Argued before BROWN, MESTREZAT, | rot, which was not visible from the outELKIN, STEWART, and MOSCHZISKER, side. The defendant's testimony was to the JJ. effect that early in August, 1906, workmen Reuben J. Butz and Claude T. Reno, Co. employed in making repairs to the bridge Sol., for appellant. Thos. F. Diefenderfer and Francis G. Lewis, for appellee. had removed certain of the planks and tested the stringers by pounding or jabbing them with a crowbar, a hatchet, or with an eightpound iron hammer, and that the commissioners had then substituted new stringers for all those which they deemed unsound; that in 1908, about five months before the accident, repairs were made by a carpenter and his three sons, who removed all of the planks upon the bridge excepting those in the two panels on the southern end, tested the stringers in a like manner, and replaced those which seemed to be unsound. [1] The defendant contended that if at MOSCHZISKER, J. The verdict was for the plaintiff, and the defendant has appealed. The principal question involved is stated by appellant as follows: "Is a county liable for damages suffered through a failure of the part of the floor system of one of its bridges while there was being taken across it a load which, in respect of weight and otherwise, was different in character from the ordinary and usual travel over the highway in the locality of the bridge at the time It was built, but not different 'from such the time the bridge was built it was suffi travel at the time of the accident, if the clently strong to care for the then ordinary county commissioners properly maintained and usual travel over the highways in the bridge in accordance with its original de- that locality, and if the county had mainsign and plan of construction?" The county tained the structure in good condition acbridge in question was erected prior to the cording to its original carrying capacity and year 1840 where a public road, which has construction, the commissioners had performsince become a main thoroughfare, crossed ed their full duty; further, that, if the a stream, about a mile and a half beyond weight of the motor truck and its contents what is now the city of Allentown. At that was greater than the load usually and orditime Allentown was a mere village with narily transported over the highways in rural surroundings. It had gradually grown the vicinity at the time the bridge was and extended, however, until at the time built, though not greater than the usual of the accident its built-up portions were within three blocks of the southern end of the bridge, with a scattering of houses and a number of industries still nearer. The territory on the other side of the bridge had likewise seen a large increase in population; towns and villages had come into existence; car wheel, cement, hardware, and other manufactories had been erected and actively operated for some years prior to the accident. The bridge was 118 feet long by 19 feet wide, and consisted of a wooden superstructure resting on stone pillars and abutments. It contained 10 spans, each 11 feet in length, and 5×7 hemlock stringers, 11 feet in length laid 33 inches apart, supported the planks of the floor. The structure had not been rebuilt since its erection, the floor system remained of the original type, and the stringers in the immediate part of the bridge which broke down and caused the accident had never been replaced or repaired. and ordinary loads at the time of the accident, the failure of the commissioners to strengthen the bridge in order to take care of such greater loads would not be negligence. But the trial judge refused so to charge. On the contrary, he instructed the jury that the Legislature had recognized the right to operate motor vehicles on the roads of the state, and that when such vehicles, of the description and weight in ordinary use in a section of the country, have been running for several years, it becomes the duty of the county authorities to strengthen the bridges so as to withstand the increased strain and provide against injuries from such ordinary use of the highways. It was left to the jury to say what was the ordinary use of the roads in the vicinity of the bridge in this case, the court adding: "Had the carrying of such loads as this auto had on that day become ordinary and usual? If it had, then the duty of the commissioners was On January 26, 1909, Chester Gehringer, to provide a bridge sufficient to carry it. the husband of the plaintiff, and two other When I say provide a bridge, I do not mean men, were riding across the bridge on a mo- a new bridge. The commissioners are not tor truck containing a load of flour; the charged with the rebuilding of bridges. truck and load together weighing about 14,000 pounds. When they reached the third panel from the northern end, that part of the structure suddenly gave way and precipitated the truck into the stream below, causing the plaintiff's husband and one of his companions to be drowned. The accident was due to the giving way of the stringers. Upon investigation it was found that one of the broken stringers in the panel through All that they are charged with is the maintenance of the bridge, and all that they could be charged with here is that if the use of the auto trucks carrying the weight this one did, and with the formation of the body this one had, I mean in regard to the amount of the pressure exerted in any partic ular place, become common, then it would be their duty to strengthen the bridge to meet the changed condition of travel, not to reconstruct to accommodate that travel." And: "If you find these auto trucks of the size that this auto truck was were common and ordinary means of conveyance in the neighborhood of this bridge and over the roads leading to and from it, then your verdict should be in favor of the plaintiff. If you find they were not so, then you should find in favor of the defendant." These instructions and the refusal to charge as requested by the defendant constitute the specifications of error 1 to 3 and 9 to 13, inclusive, and raise the question involved stated at the head of this opinion. We shall dispose of all of these assignments in considering the points covered in that question. * * * * In the opinion refusing a new trial the learned president judge of the court below says: "The trial established the fact that auto trucks of the weight and general character of the one in which the decedent was at the time of the accident were in general use in the locality of the bridge. An open bridge * bears the imperative duty on the authorities charged with its maintenance to keep it in such a condition that the public may safely use it. If this involves a strengthening of the floor, then it becomes the duty * * * to strength en it. They (the commissioners) may not build a substantially new bridge, but * they may make repairs and strengthen an old structure so long as the general character of the bridge remains the same. In some states the courts have held that the authorities are only required to maintain bridges of the same style and character of the original bridge, and adequate for the traffic then existing. To this view I cannot agree. To hold that the county commissioners may upon an inspection of a bridge * remove the floor timbers which were suitable for the demands of travel sixty years ago, but totally inadequate for present public demands, and replace them with timbers of the same size, and then invite an unsuspecting public to use it, seems to be entirely wrong. When the commissioners in the present case repaired the floor structure of the bridge, they might have guarded against the happening of this regrettable accident by inserting additional stringers, and thus strengthening the bridge so as to admit of its support ing loads of the weight of the loaded auto truck." The excerpt just quoted and the instructions before summarized contain a substantially correct statement of the law governing the question under consideration. "In this state the duty [to repair] is statutory, and therefore we must look to the statute for its nature and extent." Rapho v. Moore, 68 Pa. 404, 8 Am. Rep. 202. The act of June 13, 1836 (P. L. 551), required public roads, including bridges, to be "constantly kept in repair." The act of April 13, 1843 (P. L. 221), provides: "It shall be the duty of the coun * * bridges erected by the county, and to pay the expenses of such repairs out of the county treasury." The act of March 30, 1905 (P. L. 81), makes a precisely similar provision as to "all county bridges heretofore erected or to be hereafter erected." Although counties are not by these statutes expressly made liable for injuries resulting from neglect properly to maintain their bridges, yet we have uniformly and long held that a mandate to repair carries with it a responsibility, which, if neglected, may give rise to such a liability; and the thought running through our cases is that these statutes fix an imperative duty upon the counties properly to repair a bridge, which includes the obligation to maintain it, "so as to protect against injuries by a reasonable, proper and probable use thereof in view of the surrounding circumstances, such as the extent, kind and nature of the travel, and business on the road of which it forms a part." McCormick v. Washington Township, 112 Pa. 185, 4 Atl. 164. missioners In Shadler v. Blair County, 136 Pa. 488, 20 Atl. 539, where a heavy traction engine broke through a county bridge, in entering judgment for the plaintiff, we said, per Mercur, C. J.: "The duty of the commissioners was • * * performed if the bridge was in a reasonably safe condition for travel, in the ordinary mode used in the neighborhood. * One of the duties of the county com* was to keep the county bridges in good repair. For more than 40 years they recognized that duty, and undertook to perform it. It was not until after Shadler was killed in consequence of their neglect * that they attempted to deny the existence of the obligation." In Clulow. v. McClelland, 151 Pa. 583, 25 Atl. 147, 17 L. R. A. 650, a traction steam threshing engine went through a township bridge. We affirmed a nonsuit entered because of the contributory negligence of the plaintiff, but restated the law as ruled in McCormick v. Washington Township, supra, and further said, per Paxson, C. J.: "The Legislature has recognized the right to take steam machinery over the public highways. When the use of steam engines for threshing or other lawful purposes becomes so general that their transportation over the roads amounts to an ordinary use of them, it may be necessary to strengthen the bridges so as to withstand the increased strain." In Coulter v. Pine Township, 164 Pa. 543, 30 Atl. 490, in an action to recover damages for death caused by a traction engine's breaking through a bridge, we held, per Mitchell, J., that it was proper to leave to the jury the question whether or not such engines had become a usual and ordinary mode of travel when the bridge was reconstructed about five years before the accident; and we there referred to the warning contained in the case last cited, adding, "How far, and under what |