Struthers v. Dunkirk, &C., Railway Co.

• Decision Date: 17 June 1878
• Citation: 87 Pa. 282
• Parties: Struthers <I>versus</I> Dunkirk, Warren and Pittsburgh Railway Co.
• Court: Pennsylvania Supreme Court

87 Pa. 282

Struthers versus Dunkirk, Warren and Pittsburgh Railway Co.

Supreme Court of Pennsylvania.

June 7, 1878.

June 17, 1878.

June 7th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas of Warren county: Of May Term 1878, No. 129 W. D. Brown, S. P. Johnson and G. W. Scofield, for plaintiff in error.—The Acts of Assembly under which defendant's road was built, do not authorize the occupation of High street, in the absence of affirmative evidence that a reasonable necessity existed therefor. Neither can the defendant create such a necessity by the selection of the terminus of its road, in the absence of affirmative evidence that a reasonable necessity existed for such terminus: 1 Redfield Law of Railways 297; Springfield v. Conn. Railroad Co., 4 Cushing 63; Phila. & Trenton Railroad Co., 6 Whart. 43; Commonwealth v. Erie & N. E. Railroad, 3 Casey 354.

The ruling in Cleveland & Pittsburgh Railroad v. Speer, 6 P. F. Smith 325, on which the court below based the rejection of the plaintiff's offer, is not to the point. In that case the right of the road to lay its main track on the street was not directly raised. The right to the main line being taken as existing, the decision was that the right to build and maintain switches could not be questioned. Here the issue is as to the right to occupy the street by defendant with its main track.

The plaintiff has a right of property in the ground and soil of High street for the purpose of ingress and egress to and from his premises, unobstructed by defendants' railroad: Tate v. O. & M. Railroad, 7 Porter (Ind.) 479. In maintaining this proposition the plaintiff does not forget that it is not in harmony with the former decisions of this court, but a rigid adherence to the maxim stare decisis would leave the plaintiff to endure great wrong without hope of remedy. The plaintiff is therefore emboldened to ask the reconsideration of former decisions, with the view of ascertaining whether or not they accord with the fundamental law of the state. See Eaton v. Boston Railroad Co., 51 N. H. 504.

If the Act of Assembly incorporating defendant's road does authorize the occupation of High street, and if, as is herein claimed, the plaintiff has a right of property in the use of that street unobstructed by a railroad, it follows that the act itself is invalid, inasmuch as no provision is made for the assessment and payment of damages for the occupation of a street in a borough, except in the case of a cut or an embankment: O'Connor v. Pittsburgh, 6 Harris 187; Hinchman v. Paterson Horse Railroad, 2 C. E. Green (N. J.) 75; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35-65; Booth v. Town of Woodbury, 32 Conn. 120; People v. Mayor of Brooklyn, 4 N. Y. 419; Brand v. H. & C. Railroad, Law Rep. 2 Q. B. 223.

R. Brown, for defendants in error.—In this state a railroad company may use a public street or highway, when authorized by its charter expressly or inferentially: Cleveland & Pittsburgh Railroad v. Speer, supra; Phila. & Trenton Railroad, supra; Mifflin v. Railroad, 4 Harris 192; Mercer v. Pittsburgh, Ft. Wayne and Chicago Railroad Co., 12 Casey 99; Commonwealth v. Erie & N. E. Railroad Co., 3 Id. 354; Danville, &c., Railroad Co. v. Commonwealth, 23 P. F. Smith 38; Faust et al. v. Passenger Railway Co., 3 Phila. R. 164.

A common-law action does not lie against a corporation for a consequential injury occasioned by the construction and maintenance of its works: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Henry v. Bridge Co., 8 Id. 85; N. Y. & Erie Railroad Co., 9 Casey 175; West Branch Canal Co. v. Mulliner, 18 P. F. Smith 361; Watson v. Pittsburgh and Connellsville Railroad, 1 Wright 479; Black v. Phila. & Reading Railroad Co., 8 P. F. Smith 252.

The right to locate the road lies in the directors alone, and not in the court: N. Y. & Erie Railroad Co. v. Young, 9 Casey 175; Cleveland & Pittsburgh Railroad Co., supra; Parke's Appeal, 14 P. F. Smith 137.

The case of Eaton v. Boston Railroad, supra, is plainly distinguishable from this case. There was there an actual interference with the rights of property, and a disturbance of the plaintiff's possession.

Mr. Justice PAXSON delivered the opinion of the court, June 17th 1878.

The defendant corporation was authorized by its charter to construct a railroad from the northern boundary of the county of Warren to any point in the borough of Warren. With the consent of the borough authorities, the defendants, in August 1871, laid and constructed their railroad along the centre of High street, in the borough of Warren, directly in front of plaintiff's premises. At the time the defendants' road was being constructed, the plaintiff had erected and nearly completed, at considerable expense, a handsome dwelling-house on his said premises, and brought this action of trespass on the case to recover damages for the inconvenience and annoyance occasioned by the building and operating of the railroad immediately in front of his residence. The pleadings are not given, but we gather from the charge of the court that the annoyance caused by the passage of trains, the cinders and smoke, and the hindrance to the passage...