Borough of Millvale v. Evergreen Railway Co

• Decision Date: 06 January 1890
• Docket Number: 225
• Parties: BOROUGH OF MILLVALE v. EVERGREEN RAILWAY CO
• Court: Pennsylvania Supreme Court

18 A. 993

131 Pa. 1

BOROUGH OF MILLVALE v. EVERGREEN RAILWAY CO

No. 225

Supreme Court of Pennsylvania

January 6, 1890

Argued October 28, 1889

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 225 October Term 1888, Sup. Ct.; court below, No. 397 September Term 1881, C.P. No. 1 in Equity.

On August 20, 1881, the burgess and town council of the borough of Millvale filed a bill in equity against the Evergreen Railway Company and the Pittsburgh & Northern Railroad Company, averring that the Lawrenceville & Evergreen Passenger Railway Co., without legal right and without the consent of the plaintiff, had constructed a narrow gauge steam railroad upon certain streets in said borough, which railroad was not the kind of road authorized by its charter and was a dangerous nuisance; that the franchises of said company had become vested in the defendants, who without right and against the protest of the plaintiff, intended to extend said road and to widen it to a standard-gauge road which would render it more dangerous and a much greater nuisance; praying for an injunction to restrain the defendants from laying any tracks on and over Bridge street in said borough and from widening the gauge of their tracks already laid upon the streets of said borough; for a decree upon final hearing, that the defendants remove their tracks from Grant avenue and Hooker street, and refrain from further use and occupancy of any of the streets in the borough for the purposes of their said tracks; and for general relief.

The Evergreen Railway Co. answered, maintaining a right in itself, as the successor of the Lawrenceville & Evergreen Passenger Railway Co., to construct, widen, maintain and use the tracks referred to in the bill, and denying the right of the plaintiff to the relief prayed for. The Pittsburgh and Northern Railroad Co. filed a separate answer, disclaiming and denying any interest in the matter in controversy, and it was subsequently agreed by counsel that the bill should as to it be dismissed.

Issue having been joined, the cause was referred to Mr. John C Newmyer, as examiner and master.

At the hearing before the master the parties agreed upon a statement of facts, which should constitute the master's findings of fact, and was as follows:

1. That the plaintiff is a borough, incorporated by an act of assembly, of the state of Pennsylvania, approved February 13, 1868, under the corporate style and title of The Burgess and Town Council of the Borough of Millvale, and the territory comprising said borough is situate within the county of Allegheny.

2. That Bridge street, in said borough, is a street extending from the Ewalt (or Forty-third) street bridge over the Allegheny river to the Allegheny and Butler plank-road; that Grant avenue is a street extending from said Allegheny and Butler plank-road to Hooker street; and Hooker street is a street extending at right angles with Grant avenue to the northern boundary of the borough; said streets were all duly laid out and opened, and have been in continuous use by the public since prior to 1871; that Grant avenue and Hooker street are each of the width of 50 feet throughout, and Bridge street is of the width of 45 feet; and said three streets form a main thoroughfare and line of travel through said borough from the Ewalt-street bridge to the borough line.

3. That about the year 1872 the Lawrenceville & Evergreen Passenger Railway Co. built a narrow-gauge steam railroad, of a gauge of three feet, from the southerly terminus of Grant avenue, in said borough of Millvale, to Evergreen Hamlet, in Ross township. That said road was constructed upon and along the whole length of Grant avenue, and upon and along the whole length of Hooker street from Grant avenue to the borough line; that said road was constructed through the centre of said two streets, except where said streets intersect, and was constructed by laying wooden ties upon said streets and fastening iron T rails across said ties, and in such a manner as to render it impracticable for teams and vehicles to be driven across said railroad track, except at certain street crossings; that where said streets intersect, a curve was formed in each from the centre of the street to within eight feet of the outside line of the street and back again to the centre of the street; that the distance from curb to curb on said streets is thirty feet, and the space occupied by said railroad is eight feet, leaving eleven feet on either side of the track free from any obstruction or impediment by said railroad; that at and on either side of the point where Butler street crosses Grant avenue, said railway company made a cut through the centre of Grant avenue wide enough for the construction of a single track and about 600 feet in length, thereby rendering it necessary for the sides of said street to be graded down to a level with said track; and also necessitating the grading down of some of the streets crossing Grant avenue at great cost to said borough; that previous to the construction of said road said Grant avenue at said cut was impassable for vehicles, and certain cutting was necessary to make it passable, but said railroad necessitates the cutting to a much greater extent than would otherwise have been required; that the said street, at said point, is now in the same condition as the remainder of the street with reference to the railroad thereon and travel along it, and since the construction of said railroad, and shortly before the filing of the bill in this case, said company constructed a turn-out or switch upon and near the southerly terminus of Grant avenue.

4. That said railroad was constructed as an ordinary steam railroad, and of the ordinary gauge of a narrow-gauge railroad, and its gauge is not the gauge of the Citizens Passenger Railway in the city of Pittsburgh, but, since the filing of the bill in this case, the ties of said railroad have been changed from narrow-gauge ties to ties suitable for a standard-gauge railroad.

5. That said railroad was constructed in the manner aforesaid, and upon the public streets in said borough, without the consent of the borough authorities, but against their protest. And ever since its construction the company operating said road has continued to run freight and passenger cars and steam locomotives over and upon said railroad and upon said two streets.

6. That said Lawrenceville & Evergreen Passenger Railway Co. claimed the right to locate, construct and operate said rallroad upon said streets, by virtue of its act of incorporation, entitled, "An Act to incorporate the Lawrenceville & Evergreen Passenger Railway Company," approved May 13, 1871, and the act of assembly, approved March 9, 1872, entitled "A supplement to an act to incorporate the Lawrenceville & Evergreen Passenger Railway Company, approved May 13, A.D. 1871."

7. That subsequent to the construction of said railroad, and prior to the filing of the bill in this case, all the rights, privileges, franchises and property of the Lawrenceville & Evergreen Passenger Railway Co. became vested in the Evergreen Railway Co., the defendant in this case, by virtue of a judicial sale of all the rights, privileges, franchises and property of said Lawrenceville & Evergreen Passenger Railway Co., under and according to the provisions of the act entitled "An act concerning the sale of railroads, canals, turnpikes, bridges and plank roads," approved April 8, 1861, and the supplement thereto, approved May 25, 1878, P.L. 145.

Upon the facts, so agreed upon, the master, on November 19, 1887, reported his opinion, as follows:

The facts being thus undisputed, the only questions presented by counsel for determination involve the construction and constitutionality of the original act of incorporation of the Lawrenceville & Evergreen Passenger Railway Co., approved May 13, 1871, P.L. 850, and the supplement thereto, approved March 9, 1872, P.L. 290, entitled "A supplement to an act to incorporate the Lawrenceville & Evergreen Passenger Railway Company, approved May 13, A.D. 1871."

The contention of counsel for plaintiff is, that the act of incorporation of May 13, 1871, conferred on the company thereby created only the restricted privileges of a "passenger railway," as distinguished from the more general and comprehensive powers granted to a "railroad," and that such intent is shown by the use of the word "passenger," in the title, otherwise the title is misleading, and therefore fatally defective; that the supplement approved March 9, 1872, seeks to enlarge the powers of the company by authorizing the extension of its line to Butler county, and granting to it "all the powers and privileges in locating, constructing and operating their road as are contained in the act regulating railroad companies, approved February 19, 1849, and the several supplements thereto, and thereby changes the entire character of the corporation without clearly expressing such object in the title; and, not being germane to the original subject is consequently obnoxious to the constitutional amendment of 1864, which declares "that no bill shall be passed by the legislature containing more than one subject, which shall be clearly expressed in the title, except appropriation bills."

These propositions were very earnestly and ably urged by the counsel, and it must be admitted that the questions thus raised are not free from doubt or uncertainty.

In support of the first proposition, it is contended that the term "passenger railway" has a technical and well defined meaning, and that the powers granted to such companies are much more limited than those possessed by "railroads;" therefore, an act which confers the enlarged privileges enjoyed by...