Borough v. Steubenville
| Decision Date | 14 April 1930 |
| Docket Number | 16 |
| Citation | 300 Pa. 134,150 A. 300 |
| Parties | Midland Borough, Appellant, v. Steubenville, etc., Traction Co. et al |
| Court | Pennsylvania Supreme Court |
Argued March 24, 1930
Appeal, No. 16, March T., 1930, by plaintiff, from decree of C.P. Beaver Co., Dec. T., 1927, No. 9, dismissing bill in equity, in case of Midland Borough v. Steubenville, East Liverpool and Beaver Valley Traction Co. and the Ohio Power Co. and Duquesne Light Co., intervening defendant. Affirmed.
Bill to abate alleged public nuisance. Before McCONNEL, J.
The opinion of the Supreme Court states the facts.
Bill dismissed. Plaintiff appealed.
Error assigned was decree, quoting record.
The decree is affirmed at the cost of appellant.
Richard S. Holt, for appellant. -- We maintain that the facts alleged in the bill and the amendments thereto constitute a continuing public nuisance in and upon Midland Avenue South Side Electric Mfg. Co. v. Light Co., 38 P.L.J 38; Pittsburgh v. Carpenter Co., 194 Pa. 318; Breisch v. Coal Co., 267 Pa. 546; Mint Realty Co. v. Wanamaker, 231 Pa. 277; Pittsburgh v. R.R., 263 Pa. 294.
The court had jurisdiction: Bethlehem City Water Co. v. Boro., 253 Pa. 333; Pittsburgh Rys. Co. v. Pittsburgh, 260 Pa. 424; Heights Water Co. v. Lebanon, 46 Pa. C.C.R. 561; Bethlehem v. Allentown, 275 Pa. 110; Citizens Elec. Illuminating Co. v. R.R., 255 Pa. 176.
Harold F. Reed, with him Joseph Knox Stone, for appellee. -- The matters in controversy are all within the jurisdiction of the public service commission: Fogelsville, etc., Elec. Co. v. Power & Light Co., 271 Pa. 237; York Water Co. v. York, 250 Pa. 115; St. Clair Boro. v. Ry., 259 Pa. 462.
The Ohio Power Co. is an indispensable party to the record in this case: Hartley v. Langkamp & Elder, 243 Pa. 550, 555; Fogelsville & Trexlertown Elec. Co. v. Power & Light Co., 271 Pa. 237.
Thompson Bradshaw, of May & Bradshaw, for Duquesne Light Company, intervening defendant. -- Plaintiff did not bring into court indispensable parties to the action: Hartley v. Langkamp, 243 Pa. 550; Geesey v. York, 254 Pa. 397.
Jurisdiction is in the public service commission to determine whether the operation complained of is a menace to the public and hence a nuisance in fact: St. Clair Boro. v. Ry., 259 Pa. 462; York Water Co. v. York, 250 Pa. 115; Jitney Bus Assn. v. Wilkes-Barre, 256 Pa. 462; Easton v. Miller, 265 Pa. 25.
All matters within the jurisdiction of the commission must first be determined by the commission in every instance before the courts will adjudge any phase of the controversy: Fogelsville & Trexlertown Elec. Co. v. Power & Light Co., 271 Pa. 237; St. Clair Boro. v. Ry., 259 Pa. 462.
The common pleas does not have jurisdiction on the ground that the operation is unlawful because carried on by a foreign corporation not registered to do business in Pennsylvania: Croyle v. Water Co., 259 Pa. 484; Minersville Boro. v. Ry. Co., 205 Pa. 402.
A traction company having consent to occupy a street has power to lease its poles to an electric power company for the stringing of wires by virtue of the Act of March 19, 1903, P.L. 304, regardless of the fact that the power company has no consent to occupy that particular street: Houston Boro. v. Ry., 234 Pa. 245; Harmony Electric Co. v. Pub. Serv. Com., 78 Pa.Super. 271.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
The Borough of Midland granted consent to the street railway company, defendant, formed in part by merger, on November 12, 1917, with a like corporation doing business in the State of Ohio, and physically connected therewith, to occupy certain streets with its tracks, poles and wires. The original grant was made on January 16, 1907, under the provisions of the Act of May 14, 1889 (P.L. 211), to the constituent Pennsylvania line, which had the state border as its terminus. By ordinance of January 14, 1913, the right to use additional highways was given; thereafter Midland Avenue has been occupied with a double track. Posts, poles and wires were likewise constructed to carry the necessary electric current, requisite for the operation of the passenger cars passing over the highway. Later, the Ohio Power Company, also a party defendant in the present proceeding, was organized in the adjoining state, and carried its current, by high tension lines attached to the poles of the railway company, through the borough to a substation at the eastern side, erected by the Duquesne Light Company, and electricity passes over these wires to and from the two power companies, as their needs require. The bill is silent as to the corporate home of the Duquesne corporation, though its operation within Pennsylvania is averred. By its petition to intervene it appears to have been chartered in this State; but, as this fact is not set forth in the complaint, we must disregard, for present purposes, the statement to this effect appearing in the pleadings filed by it. We are now dealing solely with an answer raising preliminary objections to the bill, asking that it be dismissed for want of proper parties and lack of averments showing a cause of action, it being insisted that the question raised is not cognizable in equity. The essentials of the defense appearing in the petition of the Duquesne Light Company to intervene and its motion to dismiss, in so far as not responsive to facts set forth in the bill, cannot now be considered. The Equity Rules (No. 48) make this impossible, since the new allegations require production of evidence to sustain them: Cf. Rutherford Water Co. v. Harrisburg, 297 Pa. 33.
In passing upon the question raised we are therefore confined to the statements appearing in the bill, and the determination as to whether they are sufficient to sustain a decree for the relief asked. It is set forth therein that the power lines are stretched on the poles of the railway, without municipal consent, for the benefit of a foreign corporation, thus constituting a public nuisance, which the equity court is asked to abate by directing their removal, and to declare the erection thereof and transmitting current thereon by an Ohio company ultra vires. It is to be noticed that the prayer does not contemplate the maintenance of the status quo, until the rights of the respective parties are legally determined, but asks for a mandatory injunction to compel immediate destruction of the lines complained of. It is charged that the current passes to and from the Duquesne Light Company, and is shifted from one corporation to the other as necessity may require. In view of this allegation, the last named company was permitted to intervene as a party defendant, and has joined with the railway in asking a dismissal of the bill. Thereafter, amendments were filed by the plaintiff, amplifying the charges already set forth. Permission to serve the Ohio Power Company was given, but no attempt to actually do so has been made, though many months have elapsed since the motion to dismiss was presented.
It is clear that the traction company and both the power companies, alleged to be wrongfully using the streets to convey electric current, are not only proper but indispensable parties to the bill, if the mandatory injunction is to be granted. Two have appeared, but the third has not been served, and no real attempt to bring it in has been made. It is well settled that equity will not grant relief, such as here asked, if all immediately affected thereby are not made parties. The Ohio Power Company was named as defendant, but it has not been compelled to appear. The Duquesne Light Company, necessarily interfered with in its operations if the order prayed for is made, was not joined, but, with leave, intervened, and also demands the dismissal of the proceeding. Equity Rule 48 provides that a complaint may be summarily stricken off for want of proper parties, and this has been uniformly held (Geesey v. York, 254 Pa. 397), though an amendment may be permitted in a proper case to join one affected but not brought on the record: Hartley v. Langkamp & Elder, 243 Pa. 550. No real effort has been made to force the appearance of the Ohio Power Company, a necessary party, and for this reason the complaint should be dismissed, for no attempt to serve it has been made though a long period of time has elapsed. Possibly this would not be ordered until a further opportunity was given to make it more than a defendant in name, if other reasons making the decree entered imperative were not apparent.
It is urged that the bill sufficiently shows the commission of such a public nuisance by the traction company, in permitting an unauthorized use of its poles, as to justify the order asked for, and, further, that the Ohio Power Company has no corporate rights to act within this State. The unlawful occupation of a highway is undoubtedly a restrainable nuisance (Breisch v. Locust Mt Coal Co., 267 Pa. 546; Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Mint Realty Co. v. Wanamaker, 231 Pa. 277), but it must be kept in mind that the Act of March 19, 1903, P.L. 34, gave to companies, having the right to use them, the power to lease their poles, erected on streets permissibly occupied, to other corporations for the purpose of carrying wires, though the latter had no express municipal consent: Houston Boro. v. W.C. Ry. Co., 234 Pa. 245. This legislation would protect the intervening defendant, the Duquesne Light Company, in building its line on the poles of the railway company with its leave, though possibly not a defense to the Ohio Power Company, if the latter had no authority to do business in Pennsylvania: Citizens E.I. Co. v. L. & W.V.R.R. Co., 255 Pa. 176. But if, as the bill avers, the traction company is doing...
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