Pennsylvania Canal Co. v. Lewisburg, Milton & Watsontown Passenger Railway Co.
| Decision Date | 28 July 1899 |
| Docket Number | 71-1898 |
| Parties | Pennsylvania Canal Company, Appellant, v. The Lewisburg, Milton & Watsontown Passenger Railway Company, E. A. Tennis, J. W. Cramp, and the E. A. Tennis Construction Company |
| Court | Pennsylvania Superior Court |
Argued October 24, 1898 [Syllabus Matter]
Appeal by plaintiff, from decree of C. P. Northumberland Co., No 214, Equity Docket-1897, refusing injunction and dismissing plaintiff's bill.
Hearing on bill, answer and proofs. Before Savidge, P. J.
It appears from the record that a bill was brought praying for an injunction to restrain the defendant railway company from constructing a street railway to be operated by electricity upon an overhead bridge which was part of the public road and crossing plaintiff's canal.
The court below dismissed the bill and refused the injunction in an opinion reported in 7 Dist. Rep. 244. Plaintiff appealed.
Error assigned among others was in not issuing an injunction, in accordance with plaintiff's first prayer for relief which prayer was, " Restrain defendant from occupying and using the property of the plaintiff for railway purposes."
Reversed.
Cyrus G. Derr and J. C. Bucher, for appellant. -- The estate of the Pennsylvania Canal Company in the property which is the subject-matter of this controversy is an absolute estate in fee simple, unrestricted both as to time and use, and differing in no material respect from the estate which individuals acquire in the farms, houses and other lands ordinarily purchased by them: Haldeman v. Penna. Railroad Co., 50 Pa. 425; Craig v. Allegheny, 53 Pa. 477; Coal Co. v. Price, 81 Pa. 156, 175.
The defendant company, claiming corporate existence under the provisions of the act entitled " An act to provide for the incorporation and government of street railway companies in this commonwealth," approved May 14, 1889, has no power of eminent domain for that purpose, and is without authority to construct its railway upon and across the canal property so owned by the plaintiff company in fee simple: Com. v. Railroad Co., 27 Pa. 339, 351.
There is in the street railway legislation of Pennsylvania no grant whatever of the right to occupy canal property.
The plaintiff's bridge is not a " street or highway" within the meaning of the said act.
The legislature cannot be supposed to have intended to increase the contractual burden of the plaintiff company.
If the bridge and the contiguous land are to be regarded as portion of the public highway, yet the highway being a suburban road, the defendant's railway would be an additional and unwarranted servitude upon it.
In the case of the Pennsylvania Railroad Company v. Street Railway Company, 176 Pa. 559, 576, Mr. Justice Mitchell, delivering the opinion of the Supreme Court, said:
" What Penna. R. R. Co. v. Montgomery Co. Ry. Co. really decides and is authority for is that the laying of railway tracks on a suburban road is an additional servitude which cannot be imposed upon the owner of the fee against his will by the mere consent of the township authorities."
The principle thus defined is precisely applicable here, whether the matter be considered with reference to the bridge alone or considered with reference to the contiguous land over which the bridge is approached.
Wm. H. Hackenberg and R. C. Dale, with them James Scarlet, for appellees. -- The appellant purchased this land as a corporation, not as an individual. Its right to it is no higher than if it had taken it under the right of eminent domain under which the state acquired it. The right to take and hold is based on necessity and cannot be broader than the necessity which supports it: Cooley, Const. Lim. (3d ed.) pp. 557, 558; 5 Thompson on Corp. sec. 5791.
The principles which we are contending for are sustained by the very case cited by the appellants, Haldeman v. Pennsylvania Railroad Co., 50 Pa. 425, in construing the acts under which appellants claim title: Com. v. McAlister, 2 Watts, 190.
The distinction becomes one of vast importance when it is considered that a corporation could acquire and hold real estate simply for the purpose of blocking and stopping all such improvements as street railway companies.
The case of Penna. R. R. Co. v. Montgomery Pass. Ry. Co., 167 Pa. 62, relied upon by the appellants, is not in support of their contention. That case was expressly put upon the ground that " the consent of the local authorities of West Conshohocken borough and White Marsh township were refused, that of Upper Merion was given, that of the borough of Conshohocken was given and has since been withdrawn.
Canals like railways are public highways and their owners are not to be considered as the owners of private property.
Penna. Railroad v. Electric Ry., 152 Pa. 116, opinion by Sterrett, J.: " Railroads are public highways. They cannot therefore, for all purposes, be considered private property only. As they possess a public character they are subject to public supervision:" Traction Co. v. Canal Co., 1 Pa.Super. 409; Traction Co. v. Canal Co., 180 Pa. 636.
The decisions of our Supreme Court are therefore all in accord with the distinction between the ownership of property by a corporation for public purposes and the ownership of property by private individuals.
In the absence of any special obligation by prescription or legislative enactment, the duty of repairing the bridges falls upon the public, either the county, city or borough where the bridge is erected, provided it be a bridge dedicated to and used by the public: Meadville Boro. v. Canal Co., 18 Pa. 66; Rapho v. Moore, 68 Pa. 404.
In Harrisburg Railway Co. v. Harrisburg, 149 Pa. 465, it is held that the street railway company had the right to cross a bridge over the tracks of a railway company. Why then not cross a canal? As to the plaintiff's bridge not being a highway within the meaning of the act, the decisions are abundantly the other way.
We have shown that it is not and never was the plaintiff's bridge, and it could not by volunteering to build and maintain it, assert rights of ownership. It was a bridge dedicated to public use, subject to supervision and control by the supervisors of the township.
The contention as to the canal company being the owner of the bridge has been shown to be untenable. It is a public road bridge and there is no need in discussing the position taken that the decree of the court is taking any of its property from it. It never had any property rights in it.
The court has found as a fact that the use of the bridge by the railway company in no way interferes with the use and navigation of the canal. No burden is imposed upon the canal company and as a matter of fact it has been relieved of the burden of the maintenance of the bridge. But as to an additional servitude, it is expressly ruled by the Supreme Court in Penna. R. Co. v. Street Ry. Co., 176 Pa. 559, that,
Before Rice, P. J., Reeder, Orlady, Smith, W. W. Porter and W. D. Porter, JJ.
The defendant is a street railway company, incorporated by letters patent, issued under the provisions of the act of assembly approved May 14, 1889, P. L. 211. Pursuant to its charter, it secured the consent of municipalities and landowners, -- with the exception of the plaintiff, -- and constructed a street railway, to be operated by electricity, between Lewisburg and Watsontown, which were the terminal points mentioned in its articles of association.
During the progress of the work, the plaintiff caused the defendant and the contractors having in charge the construction of the railway to be notified, At the time this notice was served, October 29, 1897, the construction had progressed to within two miles of the canal bridge, and the defendants decided to disregard it and to continue the work. On November 26, 1897, a bill in equity, with affidavits and bond was filed by the plaintiff, and a preliminary injunction was awarded. The defendants appeared and filed an answer, but, after hearing, the court refused to continue the injunction, dismissed the bill at the cost of the plaintiff, and entered the following decree: ...
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