Lockhart v. Craig St. Ry. Co.

• Decision Date: 05 January 1891
• Docket Number: 175
• Citation: 139 Pa. 419,21 A. 26
• Parties: C. LOCKHART ET AL. v. CRAIG ST. RY. CO. ET AL
• Court: Pennsylvania Supreme Court

21 A. 26

139 Pa. 419

C. LOCKHART ET AL. v. CRAIG ST. RY. CO. ET AL

No. 175

Supreme Court of Pennsylvania

January 5, 1891

Submitted November 10, 1890. [Copyrighted Material Omitted]

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 1 OF ALLEGHENY COUNTY.

No. 175 October Term 1890, Sup. Ct.; court below, No. 59 September Term 1890, C.P. No. 1, in Equity.

On June 14, 1890, Charles Lockhart and twenty-seven others filed a bill in equity against the Craig Street Railway Company and the Duquesne Traction Company, averring in substance as follows:

That the plaintiffs were severally property owners abutting upon Negley Avenue, in the city of Pittsburgh; that said avenue was an improved street of said city, paved within the last year with a smooth asphalt pavement, paid for by plaintiffs and other abutting property owners at a cost of some $132,000; that the same was paved with the said asphalt pavement with a view and for the purpose of diminishing the noises and annoyances arising from travel on the same, and to increase the value of their lands on said street as places of residence, and that the result had been to greatly increase the value of said lands.

That the Craig Street Railway Co. claimed to have the right to enter upon and construct a street railway along and upon said Negley Avenue, from the intersection thereof with Roup street to the intersection thereof with Bryant street, and then to return with a double track on Negley Avenue to said intersection with Roup street.

That said Craig Street Railway Co. threatened and proposed to at once enter upon Negley Avenue to construct, maintain and operate a street railway with two tracks, etc., and to run thereon cars propelled by electricity as a motive power, and for that purpose to tear up and destroy said pavement, to replace the same with an inferior block pavement, to erect along the lines of said street on the properties of plaintiffs, a line of poles on each side of said street, to suspend wires from said poles across the carriage way of said street, and upon such poles to suspend a wire over each of its tracks running lengthwise of said street.

That such poles would be located in such position as defendants might select, at the height of about eighteen feet and about seventy-five feet apart; that the tracks to be laid would be about seven feet from the curb line, and that said pole and tracks would be a continuous trespass upon said properties and a serious obstruction to the passage of said street; that they would deprive said plaintiffs of easy and convenient access to the street from their properties, and prevent the use of their respective properties under the surface of said street, etc.

That the running of cars along said tracks by the use of electricity would deprive plaintiffs of the quiet which they had theretofore enjoyed, and which made their properties especially valuable for purposes of residence, and would greatly damage and depreciate the value of the same.

That the Duquesne Traction Co. had made or was about to make an agreement or lease of some kind for the construction and operation of said passenger railway, and the city councils had pretended to give by ordinance, the right to enter upon said Negley Avenue, and to make and construct thereon such motors, cables, electrical and other appliances and necessary and convenient mechanical fixtures as said company might at any time select, and also to lease the property, rights and franchises of said Craig Street Railway Co., and to construct and operate the railway of said company.

That a certain other corporation, named the Negley Avenue & Roup Street Railway Co., had been incorporated to lay a street railway along Negley Avenue between the streets aforesaid and that its charter existed before and at the date of the incorporation of said defendant companies.

That the act, under which the Craig Street Railway Co. was incorporated, forbids the construction of any railway incorporated thereunder within the limits of any city, etc., without the consent of the local authorities thereof; that the city of Pittsburgh had no power to assent to or authorize any person or corporation to enter upon, use, or occupy said street, except such consent or authority be expressed by general ordinance, and that the said defendants did not possess the authority of the city expressed by general ordinance.

That the act of May 14, 1889, under which the Craig Street Railway Co. was incorporated, was unconstitutional in that it did not provide a method or remedy whereby plaintiffs might compel defendants to secure compensation to them in advance; and, also, that the act of March 22, 1887, P.L. 9, under which the Duquesne Traction Co. was incorporated did not empower it to take property of plaintiffs to its use, or, if it did, then that it was unconstitutional; and finally, that neither of said defendants had any right or power by virtue of a charter to construct and maintain a street railway over Negley Avenue in manner threatened by them.

Upon the averments of the bill, the plaintiffs prayed for decrees:

1. "That the said defendants, or either of them, have no lawful power to enter in and upon said Negley Avenue, and thereon to lay down, construct and operate its said railway.

2. "That the defendants, by preliminary injunction, hereafter to be made final, be restrained and enjoined from entering upon, laying down, constructing, maintaining or operating a street railway upon said avenue, between the points mentioned in the bill."

3. For further relief.

On June 28, 1890, fixed for the hearing of plaintiff's motion for a preliminary injunction, the defendant companies filed an answer, and affidavits were read on both sides. After argument of the motion, the court, on September 3, 1890, filed the following opinion, STOWE, P.J.:

The questions raised by the bill, answer and affidavits, are all merged in one inquiry, to wit: Have the defendants, or either of them, shown the legal right to construct, operate and maintain a railway on Negley Avenue, as proposed by them? This involves the proper interpretation of defendants' charters, the constitutionality of the acts under which they were granted, and the validity of the ordinances of the city of Pittsburgh, granting them the right to build and operate the road in question.

It cannot be doubted, at this day, that the legislature of Pennsylvania has the power to authorize the incorporation of companies with power to build and operate railways with horses over the streets of cities, with the authority and consent of the authorities of said cities, as provided by § 9, article XVII. of the constitution. And it is too late to say that such use and occupation of the streets impose such an additional burden or servitude thereon, as renders it necessary to provide for compensation therefor to the owners of abutting property. Nor can it be successfully urged that the proper municipal authorities may not, at their discretion, repair, improve and change the pavement put down by the city, whenever it may be done without any additional cost or expense to the city or property owners, so far at least as it may be of any usual and ordinary character.

The power over the streets vested in the city authorities seems to be absolute, so far as its exercise is not inconsistent with their ordinary use, and does not take, injure or destroy the property of adjoining owners. Therefore, I do not think the fact that the plaintiffs secured the paving of a street from the city, for which they paid in the ordinary way by assessment, took away any right the city had to repair or change the pavement, or grade of the street, or to exercise over it the same power it has over any other street or alley in the city.

There can be no doubt that, under a proper charter, the city had a right to allow the streets to be used for a street railway, with horses as a motive power. So far as the street use proper is concerned, there is no substantial difference between the tracks of such a street railway and one operated by electricity. We may then assume that, in the occupation of the street with tracks, intermediate paving, and the appliances in ordinary use for railway operated by horses, there is nothing of which plaintiffs can legally complain. Whatever dust, noise and annoyance is incident they must submit to.

But, there is a material and substantial difference between such a road and the one contemplated by defendants as regards its relations to plaintiffs' property. The proposed road, not only occupies the middle portion of the street or cart way, but will, as a necessary part of its machinery, have iron posts some eighteen feet high, permanently fixed three or four feet in the ground, along or near the curb of the pavement or sidewalk, upon which will also be placed permanent lines of wire crossing the street, and upon which will also be placed a permanent wire over each track running longitudinally with the street. Do these singly or altogether amount to such a taking of plaintiff's property, as is prohibited by the constitution without compensation?

The placing of the wires over the streets does not appear to be a taking of plaintiffs' property. The streets are dedicated to the public use, and a citizen has certain special rights as an abutting owner, but I cannot see how a wire run through the air above the streets can be said to be a taking, injury, or a destroying of his property. But another question arises in reference to the posts placed in the ground for the support of the wires by means of which the cars are moved. It has generally been understood in Pennsylvania, that the abutting owner has a fee to the middle of the adjoining street, and that the public has only a right of...