New Brighton, &C., R. R. Co. v. The Pittsburgh, &C., R. R. Co.

• Decision Date: 25 February 1884
• Citation: 105 Pa. 13
• Parties: Appeal of the New Brighton & New Castle Railroad Company. The New Brighton & New Castle Railroad Company <I>versus</I> The Pittsburgh, Youngstown & Chicago Railroad Company.
• Court: Pennsylvania Supreme Court

Page 13

105 Pa. 13

Appeal of the New Brighton & New Castle Railroad Company.

The New Brighton & New Castle Railroad Company versus The Pittsburgh, Youngstown & Chicago Railroad Company.

Supreme Court of Pennsylvania.

January 8, 1884.

February 25, 1884.

January 8th, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

APPEAL from the Court of Common Pleas of Lawrence county: In Equity: Of October Term, 1883, No. 217. Also CERTIORARI to said Court: Of October Term, 1884, No. 15.

Oscar L. Jackson (with whom were Hampton and Dalzell), for the appellants in both cases.

1. Staking a centre line is sufficient to determine a location, but it must be done by a company in its corporate capacity, and not by private individuals who afterwards become corporators. Titusville & P. R. R. Co. v. Warren & V. R. R. Co., 12 Phila., 642. If a company by resolution adopts a private road for its line, but does no act of re-surveying or re-locating, it does not amount to a location. McCandless' Appeal, 20 P. F. S., 210. Passing resolutions does not amount to a location. Baldwin v. Hillsborough R. R. Co., 10 West. Law Jour., 356.

2. The court below made an order that upon giving bonds in a certain sum, with sureties to be approved by the court, the appellant's appeal should operate as a supersedeas. This requirement was fully complied with, and the attachment was in plain violation of said order. Slaughter-house Cases, 16 Wallace, 36; Hedge's Appeal, 13 P. F. S., 273. Again, the attachment cannot be sustained because it was granted ex parte, and without a hearing. Ex parte Langdon, 25 Vt., 680; Hurd on Habeas Corpus, p. 407.

Thomas W. Sanderson and D. B. & E. L. Kurtz, for the appellees in both cases.

1. Marking out a certain line by sufficient and proper stakes is a sufficient location to prevail against a second company subsequently seeking to occupy the same ground. Wilkesbarre & Phila. R. R. Co. v. Danville H. & W. R. R. Co., 29 Leg. Int., 373; Titusville & P. C. R. R. Co. v. Warren & V. R. R. Co., 12 Phila., 642. This and much more was done by the appellees, and full notice of the same given to the appellants before the latter made their pretended location. It is of no importance that the survey was made before the incorporation of the appellees, since it was made in their behalf, and then adopted by them immediately upon their organization. Morris & Essex R. R. Co. v. Blair, 1 Stockton, N. J. Eq., 643.

2. Neither an appeal nor a certiorari operates as a supersedeas so as to vacate a decree of the court below, and permit a party to continue to perform wrongful acts which he was enjoined from performing by said decree. French v. Shoemaker, 12 Wallace, 86; Whitney v. Mowry, 3 Fisher's Patent Cases, 161. In chancery it is a matter within the discretion of the court to issue an attachment without a personal service of notice therefor. Robb v. Pepper, 11 W. N. C., 497.

Mr. Justice STERRETT delivered the opinions of the court in both cases, February 25th, 1884.

APPEAL, NO. 217, OCTOBER TERM, 1883.

For the purposes of this case it may be assumed that each of the companies litigant is authorized by its charter to locate, construct and operate a railroad along the Big Beaver river between certain points in the counties of Beaver and Lawrence. In the proper exercise of that right, as they claim, the companies each surveyed, marked and determined the location of their respective roads, but the locations thus ascertained and determined by them respectively so interfere with each other, that at certain points they are substantially identical, and at other points they are partially the same. Hence arises the vital question in the case: Which of the companies acquired the prior, and, consequently, the better right of location at the points of interference? The proper solution of this question necessarily depends upon what was done by each company under its charter, and in accordance with the law relating to the location and construction of railroads. The learned master's findings of fact are fully and clearly stated in his report, and in no essential particular is their correctness seriously questioned. The contention is as to their application to the law under which the companies were incorporated, and the legal conclusions drawn therefrom. In so far as they are material to the question involved, the facts found by the master are substantially as follows: The New Brighton and New Castle Railroad Company, appellant, was duly incorporated March 24, 1881, under the Act of 1868 and its supplements, to construct, maintain and operate a railroad from New Brighton, in Beaver county, to New Castle, in Lawrence county. An organization was immediately effected, and at a meeting of the directors, March 30, 1881, the map of a survey made by Mr. Slataper, chief engineer of the Pennsylvania Company in 1875-6, was presented, and a resolution adopted "That the location of this company's line of road, as shown by the map now presented, be and the same is hereby adopted, and the president is instructed to take such steps as may be necessary to secure such location." The survey referred to was made under the direction of the Pennsylvania Company, then and still operating the Pittsburgh, Fort Wayne and Chicago Railway, and other railroads over which it had a continuous line from Pittsburgh through New Brighton and New Castle, and thence northerly to Lake Erie. In the spring of 1873 the engineers of that company made a preliminary or experimental survey from New Castle to New Brighton, marked the same "by a line of stakes one hundred feet apart in most places, with stakes at all angles, as is customary in such surveys." A report of the survey with map of the line was made to the company, and in August, 1873, the map, recorded in Beaver and Lawrence counties, was filed in the engineer's office of the company. In 1875-6 the survey of 1873 was revised, and such changes made as were necessary to adapt it to the ground, equalize the cutting and filling, and definitely locate a road with a view to its immediate construction. The curves were all determined, levels and cross sections taken, estimates made, and all the work on the ground marked by stakes in the usual way. The line thus re-located, mainly on the now disputed territory, together with a map of the same, was reported to the Pennsylvania Company; but, aside from the fact that the survey was made under the direction of that company, and with the view to the immediate construction of a railroad, it did not appear who or what company intended to construct the proposed road, nor was it shown that any person or corporation was authorized to make the survey or construct the road.

In pursuance of the resolution above quoted, the appellant company proceeded to make a re-survey of the line therein mentioned, and on April 11, 1881, its engineers commenced work on the east side of the Beaver river, north of Chewton, and proceeding southward they "reproduced on the ground" the line run in 1875-6, marking it anew in the usual way. Within a week from that date they had re-surveyed and marked the line between Chewton aud the mouth of the Connoquennessing creek, embracing the ground in dispute, and by the latter part of the month they had reached the southern terminus of the line at or near New Brighton. The retracing and marking of this line in the manner above stated was the first work done on the ground after the incorporation of either of the contending companies.

While the re-survey was in progress the president of the Pittsburgh, Youngstown and Chicago Railroad Company, appellee, was informed of the fact; but not being then advised of the incorporation of appellant company, he supposed the survey was being made at the instance of the Pennsylvania Company, and accordingly notified certain of its officers that the company he represented "had located its proposed railroad from Pittsburgh to the Ohio state line, partly along and near to the Big Beaver river, on the east side of the said river, or on the opposite side from the town of Beaver Falls," and warned them not to interfere therewith, etc. On April 29, 1881, the same notice was given in writing to the engineer in charge of the corps then retracing the line for appellant company at Beaver Falls, and by him delivered to the chief engineer of the company. The appellant company disregarded the notice, and, holding possession of the location it claimed to have made, proceeded to construct its road, and was so engaged when the bill was filed by appellee in July, 1882.

The Pittsburgh, Youngstown and Chicago Railroad Company, the appellee, was duly incorporated in December, 1880, under the Act of 1868 and its supplements, with authority to construct and operate a railroad from Pittsburgh down the Monongahela and Ohio rivers to a point at or near the mouth of the Big Beaver river, thence up the same to a point near the junction of the Mahoning river, thence up the Mahoning to the Ohio state line. Prior to the incorporation of the company, its projectors, with the view of procuring a charter and building a railroad on the route afterwards designated in the charter, employed Mr. Cooper, an experienced engineer, to make a survey. Commencing in April, 1880, he surveyed and marked a line from Pittsburgh to the mouth of the Big Beaver, and also from Moravia, in Lawrence county, down the east side of the Big Beaver river to its mouth. The survey along the river, covering those portions of the location now in controversy, was well marked by stakes, set in the usual manner, designating stations or distances of one hundred feet each. The angles were also designated by stakes, and the entire survey, though hastily made, was so marked as to indicate a railroad location of the usual width. In making the survey a few old stakes were found at long intervals, but nothing sufficient to show a previously located line for a railroad. A report...