Twelfth St. Mkt. Co. v. Philadelphia & R. T. R. Co.

• Decision Date: 25 May 1891
• Parties: TWELFTH ST. MARKET CO. v. PHILADELPHIA & R. T. R. CO. FARMERS' MARKET CO. v. SAME.
• Court: Pennsylvania Supreme Court

21 A. 989
142 Pa.St. 580

TWELFTH ST. MARKET CO.
v.
PHILADELPHIA & R. T. R. CO.
FARMERS' MARKET CO.
v.
SAME.

Supreme Court of Pennsylvania.

May 25, 1891.

Appeal from court of common pleas, Philadelphia; county.

The opinion of the court below, Thayer, J., is as follows:

"The right of eminent domain is the right of a sovereign state to take private property for public use, and in order to promote the general welfare. It is called 'eminent domain' because it is superior to all private rights, and is an exercise of the sovereign authority which of necessity resides in all governments for the common benefit and welfare of their citizens. It was assumed by the framers of the constitution to be a right necessarily inherent in every sovereign state. Accordingly they did not put into the constitution any express grant of such power to the legislature, while they took care to prohibit, by express words, any limitation to its exercise which should exempt corporations from its application to their property in common with that of individual persons. Article 16, § 3, declares: 'The exercise of the right of eminent domain shall never be abridged, or so construed as to prevent the general assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as the property of individuals.' If this power which resides in the state is a great power, it cannot be denied that it is also a necessary power. If it may seem in one aspect of it to be a despotic power, it cannot be denied that it is at the same time a beneficent power, and absolutely essential to the public welfare. Without it a road could not be opened, a railroad or telegraph line constructed, a canal dug, a bridge built, a new street laid out, or an old one altered, and all public improvements would come to a stand-still. It oppresses no one, for its exercise is always accompanied by adequate and full compensation. It is guarded by just restrictions, and its abuse is prevented by adequate limitations. This power the state, as it had the right to do, has delegated to the defendants in these cases, who were incorporated under the general railroad law of April 4, 1868. 2 Purd. Dig. p. 1414. By section 5 of that act, they are empowered to exercise all the rights, powers, and privileges of the act regulating railroad companies, approved February 19, 1849, by section 10 of which (2 Purd. Dig. p. 1423, pi. 47) they are authorized to locate such route for their railroad 'as they may deem expedient, not, however, passing through any burying-ground or place of public worship, or any dwelling-house in the occupancy of the owner thereof, without his consent; * * * and to enter upon and occupy all land of which said railroad, or their depots, warehouses, offices, tollhouses, engine, and water stations, or other buildings, before mentioned, may be located, or which may be necessary or convenient for the erection of the same: * * * provided, that before such company shall enter upon or take possession of such lands they shall make ample compensation to the owner thereof, or tender adequate security therefor.' This, then, is the warrant from the state, by virtue of which the defendants propose to take the land belonging to the several plaintiffs in these cases, for the purpose of making the same the terminus of their line, and erecting thereon their depot; the city of Philadelphia, so far as its consent may have been necessary, having, by its appointed authorities, also given its consent thereto. The plaintiffs allege that their property cannot be lawfully taken without their consent, because they are corporations with charters which empower them to build, hold, and maintain market-houses for the public accommodation; that this use of their property is a public use; and that, in accordance with the established law upon this subject, one corporation cannot take, by the right of eminent domain, the property and franchise of another corporation held for public use, without an express authority from the legislature so to do, as an authority necessarily to be implied from the grant to them of their power, and arising out of the absolute necessity inherent in the grant, and not created by themselves. So far as relates to that portion of the objection made by the plaintiffs to the proceedings of the defendant which rests upon the corporate character of the plaintiffs, and the privileges secured to them by their charters, it is unnecessary for me to enter into any discussion; for the reason that it is too well settled to admit of debate that, under the right of eminent domain, not only the lands of a corporation may be taken for such a public use as a railroad company, but their franchise also. It would be a mere affectation of industry for me to parade the many cases decided in Pennsylvania and the other states...