Pittsburgh, V. & C. Ry. Co. v. Pittsburgh, C. & S. L. R. Co.

• Decision Date: 30 December 1893
• Docket Number: 288
• Citation: 28 A. 155,159 Pa. 331
• Parties: Pitts., Va. & Charleston Ry. Co. v. Pitts., Canonsburg & State Line R.R. Co., Appellant
• Court: Pennsylvania Supreme Court

28 A. 155

159 Pa. 331

Pitts., Va. & Charleston Ry. Co. v. Pitts., Canonsburg & State Line R.R. Co., Appellant

No. 288

Supreme Court of Pennsylvania

December 30, 1893

[Copyrighted Material Omitted]

Argued November 9, 1893

Appeal, No. 288, Oct. T., 1893, by defendant, from decree of C.P. No. 1, Allegheny Co., June T., 1892, No. 835, on bill in equity in favor of plaintiff.

Bill in equity to restrain defendant from interfering with plaintiff's location of a branch railroad.

The case was referred to John D. Shafer, Esq., as master, who reported as follows:

"The bill alleges the incorporation of the plaintiff, with power to construct branches, the building of its main line, the location and adoption of a branch of plaintiff's road on Peters' creek, the beginning of the construction of this branch and the intention to complete it; the incorporation of the defendant company to construct a railroad from Pittsburgh through Canonsburg to the West Virginia line; that defendant has not constructed any road between those points, and that no practical route between those points would pass anywhere near where the plaintiff was engaged in constructing its road. The bill then charges that the defendant is grading, excavating and filling at various points upon plaintiff's branch road in such a manner as will, if permitted, prevent the construction of plaintiff's said branch.

"The answer admits the incorporation of plaintiff, but calls for proof of its charter powers and admits the construction of plaintiff's main line; denies the location and adoption of the plaintiff's branch line alleged in the bill at the beginning of its construction; admits the incorporation of defendant company as alleged; denies the negative allegations of the bill as to its main line and as to its road not going anywhere near the points where plaintiffs were at work, and admits that it is grading 'its railroad' at the points mentioned, and that the construction thereof will prevent the construction of any railroad by plaintiff at those points.

"The defendant does not allege that it has located or adopted any main line or any branch thereof, or show by what right or under what authority it is building a railroad at the points named, nor does it aver that the location of plaintiff's branch was forfeited or abandoned.

"[The issue formed by these pleadings seems to the master to be in strictness confined to the fact and the validity of the location of plaintiff's branch.] He deemed it proper, however, to take the evidence reported herewith in order that all the facts which may be deemed to bear on the case in any view of it may be before the court.

"The master finds the facts of this case to be as follows: The plaintiff company was incorporated by an act of assembly approved April 18, 1867, P.L. 897, under the name of the Monongahela Valley Railroad Company. By act of March 31, 1868, P.L. 726, the company was authorized to build its road on a somewhat different route, 'with the power to construct such branches as the directors may deem necessary and to connect all or either of them with any railroad or railroads now constructed or that may be hereafter constructed; and by the same act the time for completion of the railroad was extended five years.' Before this time expired, by act of February 7, 1873, P.L. 126, the time for its completion, 'with one or more tracks, sidings, depots and appurtenances,' was extended for five years from January 1, 1873.

"The plaintiff's road was completed from Pittsburgh to Monongahela City by October, 1873. In November, 1886, John M. Byers, chief engineer of the company plaintiff, began the making of surveys of a branch line from Peters Creek, a station on plaintiff's main line, between Pittsburgh and Monongahela City, up the valley of Peters Creek to a point near McDonald station on the Panhandle Railroad. The surveys and a map of them he completed in January, 1887. He marked the line on the ground by pins at irregular distances, indicating the center line of the railroad, the curves being run in and marked, but the cuts and fills not being indicated in any way, nor the width of the right of way to be appropriated. It does not affirmatively appear that this survey was made by him pursuant to any action taken by the direction of the company.

"On March 25, 1887, this map was before the board of directors of the company plaintiff, at a special meeting, and the following resolution was adopted: 'On motion, Resolved, That it is deemed necessary that a branch line of railroad shall be constructed from a point on the main line of this company's road, at or near Peters Creek station; thence southwesterly to a connection with the Chartiers Railway at or near Bridgeville station, and also a connection with the Pittsburgh, Cincinnati and St. Louis Railway at or near McDonald station, all in the counties of Allegheny and Washington; and the construction of the same is hereby authorized according to the route as designated on a map now before the board, subject to such minor modifications as the president may deem wise during the construction thereof. And the said map is ordered to be verified by the secretary and filed in the office of the company.'

"No other or further action was ever taken by the board of directors as to this branch. The map in question was produced in evidence, verified by the secretary as directed by the resolution. While there was some talk by Mr. Du Barry, president of the company, with a contractor who may or may not have made bids on the work, nothing was in fact done towards the construction of this branch road from the date of this resolution, March 25, 1887, to May 3, 1892.

"The defendant company was incorporated October 24, 1889, under the provisions of the act of April 4, 1868, P.L. 62, to construct a railroad from Pittsburgh through Canonsburg to the West Virginia line. On October 28, 1889, four days thereafter, the board of directors of the company defendant passed the following resolution: 'Resolved, That the line of the Pittsburgh, Canonsburg and State Line Railroad be as follows: Commencing at a point in the city of Pittsburgh, thence via the valley of Saw Mill Run to Castle Shannon; thence via the most practicable route to Canonsburg, Pa.; thence via Houstonville and McConnell's Mills to the point of divergence of the two lines on what is known as the Rea farm; thence to the state line of Pennsylvania and West Virginia, as the board of directors may hereafter determine. Carried.'

"[Whether the survey of the line adopted by this resolution was made within the four days preceding its adoption does not clearly appear from the evidence, but it does not seem probable it was so made.]

"[On August 2, 1890, and November 23, 1891, resolutions of the board were passed relating only to the part of the line from the Rea farm to the West Virginia line. No other corporate action was ever taken with regard to the location of the main line.]

"On April 22, 1890, the executive committee of the defendant company appointed a committee to look up a route for a branch line from some point on the line of their road between Canonsburg and Castle Shannon to the Monongahela river. On July 22, 1890, the following resolution was passed by the board of directors of said company:

"'Whereas The executive committee of Pittsburgh, Canonsburg and State Line Railroad Company have had surveyed and advise the adoption of a branch line to the Monongahela river.

"'Therefore, Be it resolved by the board of directors of this company that they do hereby adopt and permanently locate a branch road as follows: Beginning at a point on the main line of the P.C. & S.L.R.R. at or near Library, Allegheny county, Pa., thence by way of the valley of Peter's Creek, to a point at or near the mouth of said creek at the Monongahela river, following the surveys made by R. L. McCully, chief engineer, as near as may be practicable. Unanimously adopted.'

"At the time the survey referred to in this resolution was made, the stakes put in by the company plaintiff on its branch line up Peter's Creek had almost disappeared. There were some stakes to be found which would indicate a prior location of a railroad but not by whom it was made. This line in many places was laid over the same ground as plaintiff's branch.

"[Nothing further was done by either party until May, 1892. On May 3, 1892, the plaintiff company began to retrace its line. On May 11, 1892, the defendant company began the work of grading which is complained of in the bill.] On May 14th the plaintiff company likewise began grading, and May 28, 1892, this bill was filed.

"[The defendants ask the master to find that the location of the plaintiff company was not made in good faith. This he takes to mean that they located the road without any intention of building it, or of building it in any definite or reasonable time, but only to forestall others. There is no evidence from which such a finding would be justified.] It was not for more than a month after the location that the engineer was ordered to suspend operations, and that and the subsequent fact that it was not built is all there is from which an intention not to build it could be inferred.

"The defendants also ask the master to find that the plaintiff company had abandoned the branch line in question. As this involves the consideration of some matters of law, the findings of fact in respect to that matter are postponed to a subsequent part of this report.

"The defendant company did not register in the office of the auditor general under the provisions of the act of June 1, 1889, section 19, P.L. 420, until November 14, 1892.

"Upon these facts the company plaintiff contends that its location should be held good and valid...