Becker v. Lebanon & M. Ry. Co.

• Decision Date: 14 November 1898
• Docket Number: 21
• Citation: 188 Pa. 484,41 A. 612
• Parties: John Adam Becker, Appellant, v. The Lebanon and Myerstown Street Railway Company
• Court: Pennsylvania Supreme Court

41 A. 612

188 Pa. 484

John Adam Becker, Appellant, v. The Lebanon and Myerstown Street Railway Company

No. 21

Supreme Court of Pennsylvania

November 14, 1898

Argued February 17, 1898

Appeal, No. 21, Jan. T., 1898, by plaintiff, from decree of C. P. Lebanon County, No. 7, Equity Docket, 1893, on bill in equity. Affirmed.

Bill in equity for an injunction.

McPHERSON J., of the 12th judicial district, specially presiding, found the facts to be as follows:

1. Since April, 1881, the plaintiff has been, and is now, the owner in fee of a tract of land in South Lebanon township lying along the south side of the Berks and Dauphin turnpike a toll road that has been in existence for many years. The land fronts upon the turnpike about 650 feet, and contains eighteen acres. Upon this tract a dwelling house, a barn and other outbuildings are situated, and the tract and dwelling are occupied by the plaintiff and his family as a farm and homestead. The dwelling is fourteen feet from the southern line of the turnpike, and is separated from the highway by a fence. The plaintiff asserts that the line of his land embraces twenty-five feet of the road, and for the purposes of this case it will be assumed that he owns the fee to that point, subject to the turnpike company's right of way. The land is rural, but lies in a thickly settled region.

2. In February, 1892, the defendant company was incorporated under the Street Railway Act of May 14, 1889, P.L. 211. Its projected line of road is described in its articles of association as beginning at Eighth and Walnut streets in the city of Lebanon, thence over certain streets in the city until the township of North Lebanon is reached at Lehman street, thence through the township along Lehman street (at this point, an unpaved township road) to the intersection of that street or road with the Berks and Dauphin turnpike at Avon, thence along the turnpike to Railroad street in the village of Myerstown, entering the townships of South Lebanon and Jackson on the way, and thence along Railroad street to the Philadelphia and Reading railroad. No part of the road has been built, however, except the section beginning at the village of Avon and ending at Railroad street in the village of Myerstown in the township of Jackson. So far as appears, permission was never asked from the city councils to build within the city, nor from the supervisors of North Lebanon township for permission to build along Lehman street. The whole of the line constructed is upon the turnpike, and the damages due to the turnpike company were assessed by proceedings in court and afterwards paid. The north rail of the track from Avon eastwardly for about a 1,000 feet, probably lies within the township of North Lebanon, and was laid after permission so to do had been refused by one of the supervisors. In Jackson township the supervisors agreed to the construction as far as Railroad street, but refused permission to build on that street. In South Lebanon township the supervisors consented that the road should be built; and after passing the 1,000 feet above referred to, the whole of defendant's road is in South Lebanon township until a point is reached beyond the plaintiff's land.

3. The work of location and construction was begun in the summer of 1893, but before the laborers arrived at the plaintiff's land the present bill in equity was filed. It averred that the railway, if constructed in accordance with the location, would be a source of inconvenience and danger to the plaintiff and his family in passing between the turnpike and his buildings on foot or with a vehicle; that he would also be deprived of safe and easy access to his land at other points along its front; that in going to and coming from the land and the buildings his family and servants would be endangered by the operation of the railway; that he would for these reasons suffer permanent and irreparable injury. It further averred that the defendant had not paid or offered to pay or secure any damages for the injury about to be done to his property, and declared that by reason of this omission to pay or give security the construction and operation of the railway would be without authority of law. It also alleged that the street railway act was unconstitutional as to points outside the limits of cities and boroughs, because it made no provision for securing or paying damages to adjoining landowners and provided no method by which compensation for injury to their property might be ascertained and recovered. Another averment was that the railway would be constructed without warrant of law because the authorities of North Lebanon township had not consented to its construction and operation in that township. The prayers of the bill were: "First, that the defendant may be restrained by injunction from constructing its railway and from operating any car by electricity or otherwise on, upon and over the line of the said railway in front of the said land of the plaintiff; second, that the defendant be commanded, directed and enjoined to at once abate, and remove any portion of the said railway, its embankment, ties, rails and fittings, poles and wires where the same had been constructed and are located and in position on the said Berks and Dauphin turnpike road, in the said township of South Lebanon, in front of and along the land of the plaintiff as complained of, and to leave the turnpike road in as good condition, repair and shape, (and) the plaintiff's facilities for coming and going to and from his land by way of the said turnpike road at the said place, as they were before the said railway was constructed."

The bill was served upon the defendant on June 21, 1893, but no application was made for a preliminary injunction.

After the filing and service of the bill the defendant proceeded with the construction of the railway, and laid the track upon the turnpike in front of plaintiff's land and dwelling. The road was in full operation when the defendant filed its answer on October 6, 1893. The plaintiff did not consent to the construction, but by this proceeding in equity has always been resisting the defendant's entry and the building and operation and construction of its road. The track is laid about seven feet from the southern boundary of the turnpike and occupies what was known and used as a "summer road," being a part of the highway that is not macadamized.

4. In building the railway the defendant used proper care and skill to conform at this point to the grade of the turnpike so far as it was reasonably practicable, and along plaintiff's land there has been no serious, and scarcely an injurious, change in the grade. At the entrance to the house a planked crossing has been made and is maintained by the defendant in order to facilitate passage over the track. The rails are of the tau pattern, but the space between them and immediately outside has been filled up almost to the level of the rail, so that driving directly across them at the entrance to a field is accompanied with but slight inconvenience. Access to the house and fields has been interfered with very slightly, if at all. There is some risk in coming out of the house or lane, either on foot or by vehicle, because a car may be approaching, and it is therefore necessary for the pedestrian or the driver to take precaution by looking up and down the road in order to see whether a car is near at hand. At a point immediately outside of the gate there is no difficulty in seeing for about 1,000 feet in either direction. The existence of the track so near the fence causes occasional inconvenience by making it difficult and unsafe to tie horses in front of the house or elsewhere along the land, or to drive along the fence. Horses must be driven into the yard or the lane, or taken across the turnpike and tied upon the other side. It may be also that the construction of the railway has somewhat injured the plaintiff's land by obstructing the natural surface drainage, so that pools of water now form more easily after a heavy rain and run off with greater slowness. Concerning this, however, we make no specific finding, but assume for the present purpose that to some extent the injury exists.

Whether or not the tract has been increased in value by the presence of the railway need not now be definitely found. Facility of access to the city of Lebanon two or three miles west, and to the village of Myerstown about four miles east, has certainly been much improved, but whether the selling price of the land has been influenced thereby is a matter we do not now consider.

5. The defendant's railway connects at Avon with another street railway leading directly to the city of Lebanon, and there is thus a continuous route (with a break of a few feet) between Lebanon and Myerstown. The community through which the railway passes is thickly settled and the travel is considerable; cars run twice in every hour between Avon and Myerstown, and the convenience of the public is largely promoted by the existence of this means of travel. The service has been continuously maintained since the road was built, and a large section of the community has grown accustomed to its convenience and comfort. It has become an important means of transportation for the public along its line, and for the towns which it connects. The interruption of its traffic would inflict great inconvenience upon the public and a serious loss upon the company.

The amount of damage done to the plaintiff by the construction and operation of the railway need not be determined with any attempt at precision. It is enough to say that the evidence laid before the court shows plainly that whatever injury has been done is not considerable in amount and may readily be compensated in...