Easton Etc. Pass. Ry. Co. v. City of Easton

• Decision Date: 24 March 1890
• Docket Number: 319,9
• Citation: 133 Pa. 505,19 A. 486
• Parties: EASTON ETC. PASS. RY. CO. v. CITY OF EASTON
• Court: Pennsylvania Supreme Court

19 A. 486

133 Pa. 505

EASTON ETC. PASS. RY. CO. v. CITY OF EASTON

Nos. 9, 319

Supreme Court of Pennsylvania

March 24, 1890

Argued March 12, 1890

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY.

Nos. 9 and 319 January Term 1890, Sup. Ct.; court below, No. 1 August Term 1889, C.P. in Equity.

On July 1, 1889, the Easton, South Easton and West End Passenger Railway Company filed a bill in equity against the city of Easton and others, officers and members of the highway department of said city, praying for an injunction to restrain the defendants from obstructing, taking up, removing or otherwise interfering with the plaintiff's railway track on South Third street in the city of Easton or elsewhere, and from in anywise obstructing or interfering with the exercise of the plaintiff's franchises. Upon the filing of the bill a preliminary injunction was awarded thereon, which, after hearing, the court, SCHUYLER, P.J., by opinion and order filed August 12, 1889, refused to continue. Thereupon the plaintiff took an appeal from said order to No 9 January Term 1890 S.Ct.

The defendants having answered the bill and issue having been joined thereon, the court, on September 2, 1889, by agreement of counsel, appointed Mr. R. C. Stewart, as examiner and master, who subsequently reported the following

FINDINGS OF FACT.

The Easton and South Easton Passenger Railway Company was incorporated by act of March 27, 1866, P.L. (1867) 1392, with authority to build and operate a street railway in and between the boroughs of Easton and South Easton, occupying for that purpose any of the streets of said boroughs. Its property and franchises were sold at judicial sale on March 8, 1886, to Henry A. Sage, and on May 14, 1886, in pursuance of said sale, it was re-organized under the same name and formally adopted the provisions of article XVI. of the constitution. On May 31, 1886, the corporation plaintiff was organized by the consolidation of the Easton and South Easton Passenger Railway Company with the West End Passenger Railway Company, the latter company being the successor, in pursuance of a judicial sale and reorganization, of the West Ward Passenger Railway Company, incorporated by act of May 5 1871, P.L. (1873) 958, and having likewise accepted said constitutional provisions.

The borough of Easton was incorporated by act of September 23, 1789, 2 Sm. L. 497, amended by act of March 19, 1828, P.L. 183. On January 13, 1887, it was erected into a city under the act of May 23, 1874, P.L. 230. By municipal ordinance approved April 13, 1887, the highway department of the city of Easton was created. It consists of the standing street committees of the select and common councils, and the ordinance commits to this department the charge, subject to the control of councils, of all matters relating to the streets of the city. On June 17, 1889, an ordinance of said city was enacted providing:

"That it shall be the duty of all passenger-railway companies to conform to the surveys, regulations and gradients as they are now or may be hereafter established by law. They shall submit all proposed plans, courses, styles of rails, and the manner of laying the same, either as to repairs, extension or construction of such railway, to the highway department, for their approval and sanction, which shall be obtained before they proceed to make such repairs, break ground, or occupy any of the streets, roads, avenues or alleys within the limits of the city."

The Easton and South Easton Passenger Railway Company laid out and constructed a railway, some time in the year 1867, commencing at the public square, Easton, extending down South Third street over the Lehigh bridge, through a part of Williams township, and on to South Easton. This railway was built with the flat or flange rail throughout its entire length, and the company continued to use this railway and this style of rail until November, 1888. In November, 1888, the complainant took up the flat rail on South Third street and relaid the track with T rail, until within twenty yards of the Lehigh bridge. At this point a flat rail about eight feet in length was used to connect the T rail with a cast iron grooved or slot rail, that was used on a sharp curve as the track entered on the bridge. These curved slot rails were cast expressly for the curve at the bridge from patterns made by a surveyor who had determined the exact radius of the curve at the entrance of the bridge, and could only be used again at a place where the curve was the same as at the place in question. They could not be straightened or bent in any manner, and had to be used as they were first made or cast.

The T rails that were laid in November, on South Third street, were placed on the street for a period of three or four weeks before they were laid, and the work of laying them occupied about two weeks and a half. They were laid according to a grade furnished on application to the city engineer by the company, and without any application on the part of the company to the city for permission to use T rails, and without any notice from the city to the company not to use them.

In June, 1889, the old bridge over the Lehigh was removed and a new one built at the same place. The only changes that were made in the approach to the bridge at its northern end, were a lowering of the grade to the extent of five feet; and the bridge was moved west about fifteen feet, the centre line of the new bridge being the same as the centre line of the old bridge. The street approach was lowered and widened to meet the changes in the bridge. On Sunday morning, June 23, 1889, the city, in pursuance of a contract made by it with the commissioners of the county of Northampton, acting by its contractor, took up and removed the track of the complainant from the bridge, north to the northern side of Washington street. This portion of the track was composed of the grooved or slot rail and one length of T rail.

The complainant company was not notified that this track would be taken up, and the officers of the company during the following week repeatedly requested the contractor and the city engineer to restore their track, and to furnish the company means to carry on their business. The condition of the street and of the bridge was such that the track could have been laid while the work of lowering the approach was going on, but no track was laid by the city, nor does it appear that the city made any preparation to re-lay the track or to procure proper materials for so doing. As found above, the old slot rails could not have been used in the construction of the new track after the bridge was changed.

On the night of June 29, 1889, at about eleven o'clock, the company complainant, by its agents, re-laid the track according to the grade furnished by the city engineer to the contractor and marked by him, with T rails, from the place where the city took them up to the bridge. The ground occupied by the track as laid on June 29th and 30th was not exactly the same as the ground occupied by the old track. Commencing from the same point at the northern portion of the new track, a centre line to the bridge would be fifteen feet to the west of a centre line of the old track at its southern end; but with reference to the side of the bridge, and to the side of the street, the new track occupied substantially the same location as the old track. The sharp curve and the switch were done away with; and, with the exception of a slight curve the line was nearly straight. At the time of the hearing, the line occupied this latter location, and was built at grade, with the exception of a necessary elevation on outer rail of the slight curve referred to.

A few days before the company laid this track with T rails, a notice was served on them from the commissioner of highways as follows: "To the Easton and South Easton Railway Co.: I am instructed to notify you not to lay a T rail on South Third street to the approach of the Lehigh bridge, now being erected. A. J. Cooper, Commissioner of Highways."

On Monday, July 1st, six members out of the seven of the highway department met and adopted the following resolution: "WHEREAS, The Easton and South Easton and West End Passenger Railway Company, without the sanction of the city authorities, and in violation of the city ordinance, about one o'clock on Sunday morning, June 30, 1889, with the employees of the Lehigh Valley Railroad Company and other persons, have laid down T rails where before flat rails were laid, on South Third street approach to Lehigh bridge, which rails have proved to be public nuisances and obstructions to public travel, and said rails do not conform to the grade lines established by the city: therefore, be it Resolved, That the city engineer is hereby directed to forthwith remove the rails from said street as being dangerous to travel and not conforming to the grade line, and imposing upon the city liabilities for injury occasioned thereby."

On the morning of the same day, Monday, July 1st, the defendants, with their agents, took up and removed the rails of the company from the bridge northwardly to a point a short distance beyond the point where the contractor had taken them up on June 23d. At the time when the injunction was served on the defendants, the work was not going on, but the workmen had stopped at 6 o'clock in the evening. The rails were taken up forcibly against the protest of the company's officers, and to the interruption of their business. When injunctions were served, defendants' agents were in possession, and were guarding the work of destruction of the day of July 1st.

The kind of rail generally used during the past twenty or twenty-five years was the flat or flange rail, in the...