Cake v. Phila. & Erie Railroad Co.

• Decision Date: 25 June 1878
• Citation: 87 Pa. 307
• Parties: Cake <I>versus</I> Philadelphia and Erie Railroad Co.
• Court: Pennsylvania Supreme Court

87 Pa. 307

Cake versus Philadelphia and Erie Railroad Co.

Supreme Court of Pennsylvania.

June 14, 1878.

June 25, 1878.

June 14th 1878.

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

Error to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 192.

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J. A. Cake and Joshua W. Comly, for plaintiff in error.—If the Act of Assembly of the 14th of April 1864, is unconstitutional and void, the court below erred in not striking off the appeal from the report of viewers. No Act of Assembly was shown authorizing an appeal, and it was not alleged that any existed. The jurisdiction of the court to take cognisance of the cause depended upon the question, whether the Act of April 14th 1864, extended the eleventh section of the Act of 19th February 1849, to the defendant, and if it did not, there was no pretence to the right of appeal.

The contention of the counsel for the company is, that the words "such property, however occupied," in the Act of July 22d 1864, included streets and alleys, and justified the construction of the siding on the alley in question, and that as no part of the embankment extended upon the lots of this plaintiff, he had no claim for damages. If this is the correct construction of this act, it necessarily follows that the company have the right to take and appropriate any streets, alleys, pavements, sidewalks or public roads in Sunbury or Erie, or in any other city, borough, village or township from Sunbury to Erie, which lies, "along or immediately connected with their line,, and erect thereon such depots, sidings, turnouts, water-ways, workshops and other improvements," as they may may deem expedient.

It is unreasonable to suppose that the legislature intended a grant, the exercise of which would produce results so injurious to the public. Such grants must be construed strictly in favor of the public: Packer v. Sunbury & Erie Railroad Co., 7 Harris 211; Commonwealth v. Central Passenger Railway, 2 P. F. Smith 506; Johnson v. Philadelphia, 10 Id. 445. Nor is there any provision in the charter of the defendant for the assessment of the value of any part of any highway taken for railroad purposes, or for the payment of such value to any person. The Act of April 14th 1864, did not impair any contract between the state and the company and was constitutional: Erie & North East Railroad Company v. Casey, 2 Casey 287.

H. T. Beardsley, William C. Packer and J. B. Packer, for defendant in error.—It ought to be regarded as settled in Pennsylvania that the legislature may authorize the location and construction of a railroad upon a public street or highway: Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 354; Mercer et al. v. Pittsburgh, Fort Wayne & Chicago Railroad Co., 12 Id. 99; Faust et al. v. The Passenger Railway Co., 3 Phila. Rep. 166; Yost v. Philadelphia & Reading Railroad Co., 29 Leg. Int. 85; Danville, Hazleton & Wilkesbarre Railroad Co. v. The Commonwealth, 23 P. F. Smith 38. The charter of the company authorized it to lay down as many tracks as they may deem necessary. This implied the right to construct sidings, and included the right to take public streets, although not so stated in express terms. The damages were consequential, and the company was not responsible therefor: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Henry v. Pittsburgh & Allegheny Bridge Co., 8 Id. 85; Monongahela Navigation Co. v. Coon, 6 Barr 382; Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 100; Faust et al. v. Passenger Railway Co., supra; Watson v. The Pittsburgh & Connellsville Railroad Co., 1 Wright 479; Snyder v. Pennsylvania Railroad Co., 5 P. F. Smith 340; Green v. Borough of Reading, 9 Watts 382; O'Connor v. Pittsburgh, 6 Harris 187; Clarke v. Birmingham & Pittsburgh Bridge Co., 5 Wright 147. It was not within the constitutional power of the legislature to impose such a liability as that contained in the Act of 14th April 1864, and that act is, therefore, unconstitutional and void: Pennsylvania Railroad Co. v. Riblet, 16 P. F. Smith 164; City of Erie v. Erie Canal Co., 9 Id. 174; Monongahela Navigation Co. v. Coons, supra; Bank of Pennsylvania v. Commonwealth, 7 Harris 151; Brown v. Hummel, 6 Barr 92; Iron City Bank v. Pittsburgh, 1 Wright 340. The company never accepted the Act of April 14th 1864, and is not bound by its provisions: Hays v. Commonwealth, 1 Norris 522; Ahl v. Rhoads, 3 Id. 325; Green v. Biddle, 8 Wheat. 1. If said act was valid, it was repealed by the Act of July 22d 1864.

The right of appeal existed under the Acts of 19th February 1849, 27th April 1855, and April 9th 1856. The tenth and eleventh sections of the Act of February 1849 were extended to the company by the Act of April 14th 1864, and included the right of appeal. The latter act may be considered as incorporated with the former: Dwarris on Statutes 189. The plaintiff sought redress under the provisions of the Act of 1849, and he must necessarily take with the privileges thereunder the conditions annexed thereto, which include the right of appeal.

Mr. Justice TRUNKEY delivered the opinion of the court, June 25th 1878.

Among the privileges granted by Act of April 3d 1837 was not that of appropriating a public highway. Section 5 of the supplement of March 27th 1852 gave the right to change the site of a turnpike or public road, when necessary, and required the company to reconstruct the same in as perfect a manner as the original road, and pay the damages caused by change of location. Not till 1864 did the legislature authorize the taking of a street or alley in a city or borough for the use of this corporation. In that year two acts were passed, one extending the tenth and eleventh sections of the Act of February 19th 1849 to the Philadelphia and Erie Railroad, the other giving power to the "company to take and appropriate such property, however occupied, as they may deem expedient, for the use and construction of depots, sidings, turnouts, water-ways, workshops and other improvements along or immediately connected with their line, that may, in their opinion, be needful for the prosecution of the business to be done on said Philadelphia and Erie Railroad." The latter, approved July...