Pennsylvania Co v. Miller

• Decision Date: 11 November 1889
• Citation: 33 L.Ed. 267,10 S.Ct. 34,132 U.S. 75
• Parties: PENNSYLVANIA R. CO. v. MILLER. 1
• Court: U.S. Supreme Court

132 U.S. 75

10 S.Ct. 34

33 L.Ed. 267

PENNSYLVANIA R. CO. v. MILLER.¹

November 11, 1889.

Wayne Mac Veagh and A. H. Wintersteen, for plaintiff in error.

D. T. Watson, Geo. W. Biddle, and M. Hampton Todd, for defendant in error.

BLATCHFORD, J.

This is an action on the case, brought in June, 1881, by George R. Duncan against the Pennsylvania Railroad Company, a Pennsylvania corporation, in the court of common pleas No. 2 for the county of Philadelphia, Pa. The plaintiff sued as the owner in fee of a piece of land, with the buildings, wharves, and improvements thereon, situated at the northwest corner of Twenty-Third street and Filbert street, in the city of Philadelphia, and extending 230 feet and 11 inches along the west side of Twenty-Third street, and 426 feet from that corner along the north side of Filbert street, to low-water mark on the Schuylkill river. The declaration alleged that the defendant had constructed along and upon Filbert street, and in front of the premises of the plaintiff, an elevated railroad, placed on iron and stone pillars set at the curb-lines in Filbert street, at intervals longitudinally of 50 feet, more or less, and at an elevation of at least 20 feet above the established grade of Filbert street, and had constructed an abutment for the sustaining of a bridge superstructure across the Schuylkill river, on the eastern side of said river, and in the middle of Filbert street, in front of the premises of the plaintiff, and had constructed, opposite Filbert street, in the channel of the river, two piers to further support the bridge superstructure, the bridge and the elevated railroad making a continuous line of railway, operated by the defendant, to transport freight and passengers in cars drawn by steam locomotives; that Twenty-Third street and Filbert street, at the place in question, were public highways of the city of Philadelphia; that the construction by the defendant of the elevated railroad, and of the abutment and pier for the support of the bridge superstructure, and the operation and ues of the elevated railroad to transport freight and passengers in cars drawn by steam locomotives, and the noise, burning cinders, smoke, dust, and dirt incident to the use of such railroad, had injured the plaintiff in the enjoyment of his premises, and had rendered the same incommodious, and of little or no value to him, and had deprived him of the free use of Filbert street as a highway, and of free access to and from the wharves on the river front of his property, by the river as well as by Filbert street, and had greatly depreciated the value of the wharves; and that the injuries were committed on the 1st of June, 1881, and at all times since. The elevated railroad in question was built by the defendant in 1880 and 1881, and was opened for freight in April, 1881, and for passengers in December, 1881. It is known as the 'Filbert-Street Extension,' and crosses the Schuylkill river a short distance above Market street, and ends at Broad street. From Twenty-First street west to the river the tracks were laid upon a structure of wooden and iron beams directly over the cartway of the street, and were sustained by iron pillars, some 18 inches square, resting upon the footway inside of the curbline. This was the case along the whole length of the south side of the plaintiff's property, the structure being some 40 feet high, and the railing or guard along the track coming within 1 or 2 feet of the wall the plaintiff's building. None of the plaintiff's property was actually taken by the defendant, but the action was brought for the consequential damages caused by the construction of the railroad, and its use and operation. The defendant set up, among other defenses, that it had the right to do what it had done, without liability to the plaintiff, by virtue of its charter, contained in an act passed by the legislature of Pennsylvania, April 13, 1846, (Laws 1846, No. 262 p. 312;) and by virtue of a further act of that legislature, passed May 16, 1857, (Laws 1857, No. 579, p. 519.) The case was tried before a court and the jury, and resulted in a verdict for the plaintiff for $20,000; for which amount, with costs, he had judgment. On a writ of error, the judgment was affirmed by the supreme court of Pennsylvania, (Railroad Co. v. Duncan, 111 Pa. St. 352, 5 Atl. Rep. 742,) and the defendant has brought the case to this court by a writ of error to the court of first instance, to which the record had been remitted. Duncan having died, his administrator has been substituted as defendant in error.

The federal question involved is whether the acts of 1846 and 1857 constituted a contract between the state and the defendant relieving the defendant from liability in this suit, and whether such contract was of such a character that its obligation could not be impaired by subsequent legislation by the state. It is first necessary to see what are the provisions of the statutes on which the defendant relies. The eleventh section of the act of 1846 gave authority to the defendant to construct a railroad from Harrisburg to Pittsburgh, with a branch to Erie, and gave to it the right to enter upon and occupy all land necessary for the purpose, and to 'take' the necessary materials from any land adjoining or in the neighborhood of the railroad so to be constructed: 'provided, that such compensation shall be made, secured, or tendered to the owner or owners of any such lands or materials as shall be agreed upon between the parties, or in such manner as is hereafter mentioned: provided, further, that the timber used in the construction or repair of said railroad shall be obtained from the owners thereof only by agreement or purchase.' The twelfth section provided for the fixing of such compensation, when not agreed upon, through a petition to the court of quarter sessions of the proper county. The seventeenth section contained this provision: 'And it shall belawful for the said company, in the manner and subject to the conditions and provisions hereinbefore provided, in relation to the main line of their railroad by this act authorized to be made, to make such lateral railroads or branches, leading from the main line of their said railroad, to such convenient place or points, in either of the counties into or through which the said main line of their road may pass, as the president and directors may deem advantageous, and suited to promote the convenience of the inhabitants thereof, and the interests of said company.' By the fourth section of the act of March 27, 1848, (Laws 1848, No. 224, p. 274,) passed as a supplement to the act of 1846, provision was made for ascertaining, through the action of the court of common pleas of the proper county, the damages sustained by the owner of land or materials 'taken' by the defendant, in case such compensation could not be agreed upon. Section 5 of that act provided as follows: 'That, if said railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their own proper expense, on the most favorable location, and in as perfect a manner as the original road: provided, that the damages incurred in changing the location of any road authorized by this section shall be ascertained and paid by said company in the same manner as is provided for in regard to the location and construction of their own road.' By section 1 of an act passed April 12, 1851, (Laws 1851, No. 297, p. 518,) it was provided that the fifth section of the act of 1848 should be so construed as to include the streets, lanes, and alleys in any town, borough, or city through which the road passed. By the act of May 16, 1857, before referred to, provision was made for the sale at public auction of the whole main line of the public works of the state of Pennsylvania, which included the Philadelphia & Columbia Railroad. The act provided, among other things, (section 3,) that it should be lawful for any railroad company then incorporated by the state to purchase such main line for a sum not less than $7,500,000; and that if the Pennsylvania Railroad Company should become the purchaser at such public sale, or by assignment, (which assignment the act provided for,) it should pay, in addition to the purchase money of not less than $7,500,000 the further sum of $1,500,000, and should, in consideration thereof, have forever certain exemptions from taxation. This provision in regard to taxation was held unconstitutional by the supreme court of Pennsylvania in Mott v. Railroad Co., 30 Pa. St. 9,—a decision made before the sale took place. The third section of the act further...