Danville, &C., Railroad Co. v. Commonwealth

• Decision Date: 02 July 1873
• Citation: 73 Pa. 29
• Parties: The Danville, Hazleton and Wilkesbarre Railroad Co. <I>versus</I> The Commonwealth.
• Court: Pennsylvania Supreme Court

73 Pa. 29

The Danville, Hazleton and Wilkesbarre Railroad Co. versus The Commonwealth.

Supreme Court of Pennsylvania.

January 30, 1873.

July 2, 1873.

January 30th 1873.

Before READ, C. J., AGNEW, WILLIAMS and MERCUR, JJ. SHARSWOOD, J., at Nisi Prius

Certiorari to the Court of Quarter Sessions of Northumberland county, of September Term 1872.

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S. G. Thompson and S. P. Wolverton, for plaintiffs in error.— The company could by law take possession of a public road to construct their railroad upon it, and therefore this act was not a nuisance: Commonwealth v. Erie and N. E. R. R., 3 Casey 339. The legislature is presumed to know that the railroad would be an impediment to travel: King v. Pease, 4 B. & Ad. 17; King v. Russell, 6 Barn. & Cress. 566; King v. Morris, 1 B. & Ad. 441; Queen v. Scott, 3 Q. B. 543; Newburyport Turnpike v. E. Railroad, 23 Pick. 326; Commonwealth v. Wilkinson, 16 Id. 175; Commonwealth v. Pittsburg, F. W. & Ch. R. R., Pitts. Leg. I., Jan. 2d 1858, Vol. 5, No. 35. A railroad built by authority of law is not a nuisance: Phila. and Trenton R. R. Case, 6 Whart. 25; Hickman v. Patterson, &c., R. R. Co., 2 Green (N. J.) 75; Bordentown and S. Amboy Turnpike v. Camden and Amboy Railroad, 2 Harr. 314; Davis v. The Mayor of New York, 14 N. Y. R. 506; Fletcher v. Auburn and Syracuse Railroad, 25 Wend. 463; Drake v. Hudson River Railroad, 7 Barb. 508; Hentz v. Long Island Railroad, 43 Id. 646; Harris v. Thompson, 9 Id. 356; Milhau v. Sharp, 15 Id. 193; Stuyvesant v. Pearsall, 15 Id. 244; Williams v. N. Y. Central R. R., 18 Id. 222; Harris v. Thompson, 9 Id. 350.

The words in the act "to be reconstructed forthwith," do not mean that a new road should be constructed before the company should occupy the old one, but in a reasonable time under the circumstances: Styles Reg. 452, 453. The remedy provided by the act must be pursued: Act of March 31st 1806, sect. 13, 4 Sm. L. 332, 1 Br. Purd. 58, pl. 5; Commonwealth v. Capp, 12 Wright 53; Koch v. Williamsport Water Co., 15 P. F. Smith 288; Railroad Co. v. McLanahan, 9 Id. 23.

The railroad company having occupied the public road in question in pursuance of lawful authority, this prosecution cannot be sustained.

If indictable at all it could only be for not supplying a good road in place of the one occupied, and not in manner and form as indicted.

A specific remedy having been provided, it must be pursued.

J. W. Comly (with whom was G. W. Ziegler), for the Commonwealth. —If the powers granted to a corporation cannot be exercised without disregarding the restrictions with which they are coupled, they cannot be executed at all: Commonwealth v. Erie & N. E. Railroad, 3 Casey 339; Queen v. Scott, 3 Q. B. 543. The special verdict finds that the railroad is a nuisance as to such a road: Harvey v. Lackawanna & Bl. Railroad, 11 Wright 428. The new road should have been made before the old one was closed: Queen v. Scott, supra; Queen v. Great North. & E. Railway, 9 Q. B. 315. Reconstruction of a new road was matter of proof by defendants on the trial: Commonwealth v. Church, 1 Barr 105; Chitty's Crim. L. 23; 1 Whart. Am. Cr. L., sect. 378.

The opinion of the court was delivered, July 2d 1873, by MERCUR, J.

The Wilkesbarre & Pittston Railroad Company (to whose rights the plaintiff succeeded) was incorporated under the Act of 15th April 1859. The fifth section of said act provides, "that this company shall hereby have the rights and privileges and be subject to all the restrictions of the act regulating railroad companies, passed the 19th day of February, A. D. 1849." This language is sufficiently comprehensive to subject it to the general railroad law to which it refers. It is contended, however, by the plaintiff, that inasmuch as the fourth section of said act declares "that said company shall have all the rights and privileges enjoyed, for the settling and obtaining the right of way, as now enjoyed by the Sunbury and Erie and Pennsylvania Central Railroad Companies," that this extends to, and includes, the mode of settling differences between township authorities and a railroad corporation, when the latter has taken possession of a public road. We cannot concur in this construction of the statute. We do not think "settling and obtaining the right of way" was designed to include the rights of the public in a public highway. That language is evidently designed to be restricted to the settlement and acquisition of that private property which, the Constitution says, the legislature shall not invest any corporate body with the privilege of taking for public use, without requiring such corporation to make compensation to the owners thereof, or give adequate security therefor before such property shall be taken. The statutes referred to designate the manner in which the right of way over private property may be acquired by these corporations. The said fourth section of the Act of 15th April 1859 must be held as referring to the right of way over private property only, and not extending to public property. Hence, we discover no error in the first and third assignments. The second assignment presents the important question in the case. The thirteenth section of the Act of 19th February 1849, 2 Br. Purd. Dig. 1221, pl. 39, declares "if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the original road." The plaintiffs' railroad was located between the east bank of the Susquehanna river and Blue Hill. In the construction thereof, along the base of said hill, it became necessary to occupy so much of the public road, for a distance of 875 yards, as to hinder, obstruct and make dangerous the travel over the same. A change of the site of so much of said public road became necessary. Before occupying this road, the plaintiff constructed a new road, in lieu thereof, over the hill, and opened it for public use. This new road, however, was not constructed on the most favorable location, and in as perfect a manner as the original road. It so continued for more than a year after the old road was obstructed, and down to the time of finding this indictment — subsequently, and before the trial, the plaintiff partially widened the public highway along the track of said railroad, upon the most favorable location; but did not reconstruct the same in as perfect a manner as the original road. The defendant contends that this omission by the plaintiff to reconstruct a public road, makes the appropriation of the old road illegal and subjects the company to an indictment therefor. The indictment, therefore, does not charge the plaintiff with neglecting or omitting to reconstruct a road in lieu of the one occupied by the railroad, but with obstructing and stopping up the old public road. The effort is to convict the plaintiff for obstructing the old road by reason of its failing to construct a new one. Can this be done? In support of the affirmative, the case of Reg. v. Scott, 3 Q. B. 858 (43 E. C. L. R.), has been cited. It is true an indictment was there sustained against the engineer and other persons, acting on behalf of the Manchester and Leeds Railway Company, for obstructing a road before constructing a new one in lieu thereof;...