Cleveland and Pittsburg Railroad Co. v. Speer

• Decision Date: 07 January 1868
• Parties: The Cleveland and Pittsburg Railroad Company <I>versus</I> Speer.
• Court: Pennsylvania Supreme Court

56 Pa. 325

The Cleveland and Pittsburg Railroad Company versus Speer.

Supreme Court of Pennsylvania.

November 14 and 15, 1867.

January 7, 1868.

November 14th and 15th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the Court of Common Pleas of Allegheny county: No. 115, to October and November Term 1867.

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W. S. C. Otis and S. & S. C. Schoyer, for plaintiffs in error, referred to the several Acts of Assembly given in the statement of the case: to Commonwealth v. Erie & N. E. Railroad, 3 Casey 339, 354, 355; Ohio & Miss. Railroad v. Wheeler, 1 Black 286; Allegheny Co. v. Cleveland & Pittsburg Railroad, 1 P. F. Smith 228; New York & Erie Railroad v. Young, 9 Casey 175; Belleville Railroad v. Gregory, 15 Ill. R. 20; Pennock v. Coe, 23 Howard 117-132; Commonwealth v. Central Pass. Railway, 2 P. F. Smith 506-517; Irvine v. Lumberman's Bank, 2 W. & S. 190, 204; Dyer v. Walker, 4 Wright 157; Coil v. Pitts. Fem. Col., Id. 439; Angell & Ames on Corp., § 777 and cases cited; Hayes v. Covington, 13 S. & M. 408; Commonwealth v. Del. and Hudson Canal Co., 7 Wright 295.

S. A. & W. S. Purviance and B. F. & A. G. Lucas, for defendant in error, also cited the above mentioned; likewise Commonwealth v. Erie & N. E. Railroad, 3 Casey 351; Commonwealth v. Bowman, 3 Barr 206; Lancaster Turnpike v. Rogers, 2 Id. 114; Rung v. Shoenberger, 2 Watts 24; Commonwealth v. Rush, 2 Harris 191; Stormfeltz v. Manor Turnpike, 1 Id. 560; 1 Hilliard on Torts 117, 635, 646; 2 Id. 367, 419; Lewis v. Jones, 1 Barr 336; 2 American Railway Cases 37.

The opinion of the court was delivered, January 7th 1868, by AGNEW, J.

This is an action of tort against the railroad company for wrongfully erecting and continuing two switches on Preble street, in the borough of Manchester, opposite the dwelling-house of the plaintiff, the plaintiff claiming special damage from the penetration of his house by noisome smells and volumes of smoke.

It is to be noticed that the declaration does not allege, and the proof did not show, any negligence or abuse in the manner of constructing or of using the switches. The court reserved this question — "Whether the company under its charter and the action of the borough authorities, or either, had the right to construct, maintain and use the switches complained of?"

The court below gave no reasons for its decision, but having entered a judgment against the railroad company on the reserved point, in effect decided against the right to build its road where it did, for the right to build the switches and sidings there, is as clear under the charter as to build the main track.

There are but two grounds upon which the authority of the company seems to be denied: First, that it had no right to extend its road to the city of Pittsburg; second, that it had no right to locate it on Preble street, a public highway of the borough of Manchester.

The right to extend its road to Pittsburg cannot be doubted. The purpose of the Ohio charter is plain upon its face. The name given to the company was the Cleveland and Pittsburg Railroad Company, thus clearly indicating Pittsburg as its eastern terminus. Not having the power to authorize the building of the road to Pittsburg, the Ohio legislature, in order to invite the co-operation of Pennsylvania, empowered the company to build its road from Cleveland to some point in the direction of Pittsburg, on the state line between Ohio and Pennsylvania. Responding to this invitation to co-operate, the Pennsylvania legislature in 1853 adopted the Ohio charter in all its length and breadth, and authorized the company to extend its railroad into this state from the point where it may cross the west line of the state, and to continue it up the valley of the Ohio river, and connect with any railroads running in the direction of or terminating in Pittsburg. This language derives force and meaning from the previous Act of 1850. At first the Pennsylvania legislature did not close with the offer of Ohio, and merely authorized the company to extend its road from the state line to the mouth of the Big Beaver, and there to connect with the Ohio and Pennsylvania Railroad. But the Act of 1853 accepted the Ohio proposition by adopting its charter and repealing the Act of 1850, thus removing the impediment of the advance of the road up the Ohio valley to Pittsburg. Thus the two states clasped hands upon the project, the purpose of which is as clear as sunlight, of building a railroad from the city of Cleveland, on Lake Erie in the state of Ohio, to the city of Pittsburg in Pennsylvania, the terminus of the Central Pennsylvania Railroad, furnishing by this means a continuous communication between Lake Erie and the Atlantic Ocean.

The rule given to us for the interpretation of such a charter is found in the opinion of Gibson, C. J., in Brockett v. Ohio and Pennsylvania Railroad Co., 2 Harris 244: "The joint act of incorporation (says he) is not only a contract with the company, but a compact between the states that are parties to it." * * "The charter is not to be compared with the charter from an individual state; it is to be liberally construed with reference to the magnitude of the enterprise by giving the company the necessary means to accomplish the purposes of its creation. Like a treaty, it is the law of the contracting states without being subject to interpretation by the local usages of either. The same construction of it must be made in both."

Looking at the language giving the authority to extend into Pennsylvania, conjointly with the evident purpose of the treaty between the states of making a grand route of inter-communication between the two important cities named as the termini, we find that the authority to connect with other railroads is not single, but plural — it is to connect with any railroads running in the direction of, or terminating in, Pittsburg. But if there were any doubt of the meaning of the Act of 1853, it is removed by the Act of 1862. It revived and renewed the charter, and extended for ten years the time for constructing and completing the road from Rochester, in Beaver county, into the city of Pittsburg. This was both an interpretation and a recognition of the authority to extend the road into Pittsburg.

Having the clear right to extend the road into the city of Pittsburg, it was a matter wholly in the discretion of the president and directors of the company where the work should begin: Commonwealth v. Franklin Canal Co., 9 Harris 127.

This brings us to the second question — the right of the company to use Preble street for its road. It does not admit of a doubt, in this state, that a railroad company may use a public street or highway when authorized by its charter expressly or inferentially: Philadelphia and Trenton Railroad, 6 Whart. 43, 44; Mifflin v. Railroad Co., 4 Harris 192, 193; Commonwealth v. Erie and N. E. Railroad Co., 3 Casey 354. Although the power is not expressly given in this charter, the implication is irresistible. The authority given is to continue the road up the valley of the Ohio river to Pittsburg. Being restricted to the valley, it must necessarily pass through the borough of Manchester, which stands across the whole valley.

The power of the company to adopt any one of the streets of that borough passing through it, will now be seen more distinctly by examining the special provisions of the charter.

The 11th section authorizes "the corporation to construct a double or single track railroad on the most direct and least expensive route," and the 12th section invests the president and directors, in the execution of this power, with all rights and powers necessary for the location, construction and repair of said road, not exceeding one hundred feet wide, with as many sets of tracks as the said president and directors may deem necessary." And they may enter upon and use and excavate any land which may be wanted for the site of said road, and for any other purpose necessary and useful in the construction and repair of said road or its works." The phrase "any land" has received an interpretation in the case of Brockett v. Ohio and Pennsylvania Railroad Co., ...