Dempster v. United Traction Co.
| Decision Date | 05 January 1903 |
| Docket Number | 199 |
| Citation | 54 A. 501,205 Pa. 70 |
| Parties | Dempster, Appellant, v. United Traction Company |
| Court | Pennsylvania Supreme Court |
Argued November 11, 1902
Appeal, No. 199, Oct. T., 1902, by plaintiff, from decree of C.P. No. 2, Allegheny Co., Jan. T., 1902, No. 755, dismissing bill in equity in case of Alexander Dempster v. United Traction Company et al. Reversed.
Bill in equity for an injunction. Before SHAFER, J.
SHAFER J., found the facts to be as follows:
1. Plaintiff is the owner in fee of certain property in the township of North Versailles, having a front of 707 feet on one side and 545 feet on the other side of a public road in said township. The defendants are a traction company and a street railway company, which has leased all its property and franchises to the traction company.
2. The defendant street railway company has laid out branches, or extensions, of its road over certain roads, or streets, in the borough of Wilmerding and the township of North Versailles, one of which is in the bill called a township road leading to Stewart station, being the road which crosses the lands of the plaintiff, as above mentioned; and the defendants intend, if not restrained from so doing, to put an electric railway of the ordinary construction, with overhead wires, along said road in front of and through the property of the plaintiff.
3. The township of North Versailles is a township of the first class and was such when the branches, or extensions, above referred to were resolved upon.
4. The defendants have the consent of the local authorities of the township to build these branches and extensions.
The last conclusion of law was as follows:
We are of opinion, therefore, that in a township of the first class the municipality has the same control over the streets for urban necessities and conveniences as a borough has, and that this extends to enabling it to authorize the construction of street railways on the streets or roads of the township, and that such a railway on the streets of such a municipality is not an additional burden on the owner of the soil, and may therefore, be built without his consent.
The plaintiff is, therefore, not entitled to the injunction prayed for, and the bill should be dismissed at the plaintiff's costs.
Error assigned was decree dismissing bill.
After the appeal was taken, a petition for leave to intervene on the ground that they were greatly interested in the question involved and would be affected by its decision, was filed in the Supreme Court by certain citizens of Lower Merion township, Montgomery county and Radnor township, Delaware county, both townships of the first class.
James R. Sterrett, with him Thomas Patterson and M. W. Acheson, Jr., for appellant. -- The general act of 1889, regulating the formation of street railway companies, is substantially a consolidation of the various acts relating to the same subject which preceded that act, and an examination of these acts shows conclusively that it was never intended to confer authority to construct these city conveniences in country districts: Penna. R.R. Co. v. Montgomery County Passenger Ry. Co., 167 Pa. 62; Sterling's App., 111 Pa. 35; McDevitt v. People's Nat. Gas Co., 160 Pa. 367.
Classification of townships did not change the character of property from suburban to urban. It merely conferred upon the representatives of townships of the first class the power of imposing upon their highways certain enumerated urban servitudes, and street railways are not among these.
Practically all the powers conferred under the act relate to highway control, already existing in the former townships, except the powers to pave and sewer. Comparing, now, these powers with those granted to boroughs, we find that the difference is much greater. The boroughs have authority to open and close streets, without application to court; that is to say, they may both lay out and open, while in townships of the first class there is power to open only where the street is laid out by some other lawful authority. A borough can pave and assess the cost of the pavement upon the abutting property owners. A borough can also, of its own motion, direct the setting of curbs and the laying of sidewalks. It can also lay water and gas pipes, and manufacture its own light.
John G. Johnson, for intervenors. -- No statute of Pennsylvania permits the laying of a passenger railway on any street or road, outside of a city or borough, without the consent of the abutting property owners: Penna. R.R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62; Hannum v. Media, etc., Electric Ry. Co., 200 Pa. 44.
Even under an act of assembly authorizing the construction of a quasi public improvement in, or upon, roads outside of cities and boroughs, such improvements cannot be erected saving upon terms of compensating the abutting property owner: Sterling's App., 111 Pa. 35; Rafferty v. Central Traction Co., 147 Pa. 579; McDevitt v. People's Nat. Gas Co., 160 Pa. 367.
The township classification acts of 1899 and 1901 confer no power to construct passenger railways on roads outside of the limits of cities and boroughs.
The legislature cannot authorize the construction of quasi public improvements, such as passenger railways, on public roads outside of cities and boroughs, without compensating the abutting property owners.
J. H. Beal, with him J. H. Reed, Edwin W. Smith, George E. Shaw and Samuel McClay, for appellees. -- The general street railway act authorizes the building of street railways upon highways outside of cities and boroughs: Penna. R.R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559.
Streets or highways in first class townships are subject to the easements required for urban necessities or conveniences, and a street railway, being an urban convenience, the consent of the abutting property owner is not necessary for its construction and operation: Rafferty v. Central Traction Co., 147 Pa. 579; Case of the Philadelphia & Trenton R.R. Co., 6 Wharton, 25.
The only difference between a borough government and the government of a first-class township would seem to be in the machinery provided by the act for carrying on the affairs of the district. The legislature has determined that first-class townships require the same powers with respect to their highways as are now possessed by boroughs, but that they do not need the same complicated machinery for carrying out those powers, and therefore we find they conferred the powers granted upon a board of five commissioners instead of upon a body called councils consisting of seven members, a burgess and the other officers provided for boroughs.
It is of no consequence that the legislature in these acts retains the name "township." It is the form of municipal government and the powers conferred which is important. The legislature recognizing the needs of townships in the neighborhood of large cities and boroughs containing 300 people to the square mile, granted to them large municipal powers. To incorporate a city there must be 10,000 people in one community. To incorporate a borough, there must be a village or collocation of houses. A township is the only other political division less than a county. A township may be very populous and require urban necessities and conveniences and yet not possess 10,000 inhabitants or constitute a village, and it may not require as elaborate machinery for carrying on its government as is provided for boroughs. In such a district a street railway is as much a convenience and necessity as a public sewer, a supply of water, gas, or a fire department.
There can be no doubt that when the legislature conferred upon townships of the first class the power to construct sewers, to light the highways and to provide a water supply, it imposed additional servitudes upon the highways, and the servient estate of the abutters. It is perfectly clear that under these acts, water pipes, gas pipes and sewers may be laid in the streets, poles and wires for electric lines may be erected in the highway, and all without the consent of the abutting property owner, and without payment of any damages to him. If the township authorities are authorized to provide these urban conveniences and necessities, how can it be said that they do not have like authority with respect to street railways? It is a precisely similar urban convenience.
Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
The defendant is a street railway corporation organized under the general acts of 1887 and 1889; it obtained...
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