Pennsylvania R.R. v. Montgomery County Passenger Railway

• Decision Date: 25 March 1895
• Docket Number: 139
• Parties: Pennsylvania R.R., Appellant, v. Montgomery County Passenger Railway
• Court: Pennsylvania Supreme Court

31 A. 468

167 Pa. 62

Pennsylvania R.R., Appellant, v. Montgomery County Passenger Railway

No. 139

Supreme Court of Pennsylvania

March 25, 1895

Argued February 6, 1895

Appeal, No. 139, July T., 1894, by plaintiff, from decree of C.P. Montgomery Co., June T., 1893, No. 1, dismissing bill in equity. Reversed.

Bill in equity to restrain the construction of a street railway.

The bill averred:

1. That the said company is a corporation of the commonwealth of Pennsylvania under an act entitled An act to incorporate the Pennsylvania Railroad Company, approved April 13, 1846, and became the owner of said road by virtue of proceedings under an act entitled "An act for the sale of the main line of public works," approved May 16, 1857.

2. The said plaintiff company has held, owned and occupied its main line and still operates its main line of railroad from Philadelphia to Pittsburg.

3. That by virtue of its "branching powers" it has constructed and now operates a branch railroad leading from its main line at Glen Loch in the county of Chester through the county of Montgomery to the county line between the counties of Bucks and Montgomery, known as Trenton Cut-off.

4. That the said plaintiff owns in fee simple certain land in Upper Merion township, Montgomery county, subject to a certain township road known as the Schuylkill River road, and that over said road the said company has constructed an iron bridge for the sole passage of its cars and so as not to impede the public travel.

(5. Recited the act of assembly approved May 14, 1889, P.L. 211 entitled "An act to provide for the incorporation and government of Street Railway Companies in this commonwealth.")

6. That on June 30, 1893, the defendant company was chartered under the act of assembly of May 14, 1889, for the purpose of constructing, maintaining and operating a street railway for public use upon certain streets in the boroughs of Bridgeport, West Conshohocken and Conshohocken, and upon certain public roads in the townships of Upper Merion and Whitemarsh, Montgomery county.

7. That the said route passes over the land of the appellant and for a distance of two miles through a rural region. That said act of assembly did not contemplate the building of passenger railways on public roads outside of cities and boroughs in the manner proposed, and averred that the said defendant company has no legal authority to build its said railway on the line designated and prescribed by its charter.

8. That the defendant company has no right under its charter to build passenger railways elsewhere than on streets, and that said act of assembly is unconstitutional.

That the fee in the said public road being in the owner, the appellant, the public has the mere right of passage, and the owner has the use of the land for his own purpose in any way that is not inconsistent with the public easement, and is not required to make the land subject to additional and different burdens of a railway not contemplated when the land was appropriated for a public road, and when the defendant proposes to occupy said road for its purpose it is a taking of the appellant's land within the meaning of the constitutional provision requiring just compensation to be made for property taken, injured or destroyed, and therefore the said defendant has no legal power or authority to construct or maintain its railway without the permission of appellant, to the injury of appellant, it not having been granted the power to exercise the right of eminent domain by the legislature of the commonwealth of Pennsylvania.

That under the provision of the act of assembly approved June 19 1871, entitled, "An act relating to legal proceedings by or against corporations," it is the duty of the court to examine, inquire and ascertain whether the defendant corporation does in fact possess the right or franchise to do the act from which the injury to the plaintiff's rights and franchise will result, etc.

And praying for a preliminary injunction until hearing, and perpetual thereafter, restraining the defendant from constructing its railway on the lands of the plaintiff in Upper Merion township, or upon the township road; that the court should inquire whether the defendant possesses the right or franchise it claimed; and for other relief.

The defendant admitted the facts stated in paragraphs 1, 2 and 3 of the bill.

To the 4th paragraph of the bill it averred that the plaintiff is not the owner in fee of the bed of the township road. The 5th and 6th paragraphs of the bill were admitted to be true.

To the 7th paragraph of the said bill it averred that it was a street passenger railway company within the meaning of the act of assembly; has full legal authority to construct and operate its said railway on the line designated in its charter; that it had the consent of the supervisors of Upper Merion township to construct its railway upon the route set forth in its charter; and that said route passes over no land of the plaintiff, and does not interfere with any of plaintiff's rights.

The case was referred to Charles Hunsicker as master, who found further facts as follows:

"That the plaintiff company owns the fee described in deed from John C. Wilson to Pennsylvania Railroad Company dated December 20, 1889.

"That the River road is an old public highway which existed before plaintiff purchased and before the construction of defendant's road.

"That the plaintiff still owns said land over which land the River road runs.

"That the supervisors of Upper Merion township gave their consent to the location, construction and operation of the defendant's road over the River road.

"That the defendant company built their road after bill filed in this case, beginning at their point of beginning as far as Hecksher's Furnace at Swedeland which is about midway between West Conshohocken and Bridgeport. It is further agreed that the consent of the local authorities of West Conshohocken has not been obtained.

"Nor has the consent of the township authorities of Whitemarsh township been obtained.

"The conditions on which the consent of the county commissioners of Montgomery county for crossing the county bridge at Matson's Ford connecting the boroughs of West Conshohocken and Conshohocken have not been complied with.

"The borough of Conshohocken had given its consent to the use of certain streets by an ordinance adopted on March 15, A.D 1893, subject to certain conditions, none of which were complied with, and on January 10, A.D. 1894, the said borough enacted an ordinance giving the exclusive right to use the same streets to the Conshohocken Railway Company and to operate the same by electricity. The first above named ordinance required the company to construct its road within nine months, and it did not do so."

The master found, as a conclusion of law, that the defendant company had no right to begin the construction of its road until it had obtained the consent of all the municipalities through which the road was to be built. He therefore recommended a decree in accordance with the prayer of the bill.

Exceptions to the master's report were sustained in an opinion by WEAND, J., and a decree entered dismissing the bill.

Error assigned, among others, was (2) in dismissing the bill.

The decree appealed from is now reversed and the record remitted with direction to the court below to make the decree recommended by the master awarding the injunction prayed for. The costs of this appeal to be paid by the appellee.

Charles H. Stinson and David W. Sellers, C. Henry Stinson and William F. Solly with them, for appellant. -- The appellee is a mere trespasser and is not empowered, not having the right of eminent domain, to construct its electric railway over the public road on the appellant's land without its consent. Sterling's App., 111 Pa. 35; Mifflin v. Railroad Co., 16 Pa. 182, Arthur Chambers v. Daniel Furry et al., 1 Yeates, 167; A. Kirk Lewis v. Thomas Jones et al., 1 Pa. 336; Chess v. Manown, 3 Watts, 219; Phillips v. Dunkirk, Warren & Pittsburg R.R. Co., 78 Pa. 177; Lance's Appeal, 55 Pa. 16; Jones v. Erie & Wyoming Valley R.R. Co., 151 Pa. 30; Junction R.R. v. Boyd, 8 Phila. R. 224; Trustees etc. v. Auburn & Rochester R.R. Co., 3 Hill, 567; Williams v. N.Y. Cent. R.R. Co., 16 N.Y. 97; Mahon v. N.Y. Cent. R.R. Co., 24 N.Y. 658; Bloomfield & Rochester Gas Co. v. Calkins, 62 N.Y. 386; Inhabitants of Springfield v. Connecticut River R.R. Co., 4 Cushing (Mass.) 63.

The title of the act of assembly of May 14, 1889, under which the appellee claims its right to build its electric railway, does not refer to anything but streets, and does not include township roads, and in the body of the act the words used are "streets" and "highways," and in no place in said act is the word "road" used.

The signification of the word "street" is well defined: Elliott on Roads and Streets, 5; Grace v. N.Y. Cent. R.R., 27 N.Y. 267; State v. Moriarty, 74 Ind. 104; Heiple v. East Portland, 13 Ore. 97; Perrin v. N.Y. Co., 36 N.Y. 120.

There is certainly a very great difference between the streets of a city, town or village and the ordinary country roads: Cincinnati v. White, 6 Peters, 431; Moyamensing Av., 4 S. & R. 105; Sharrett's Road, 8 Pa. 89; Osage St., 90 Pa. 117; McDevitt v. Peoples' Nat. Gas Co., 160 Pa. 367; Indianapolis v. Croas, 7 Ind. 9; Lafayette v. Jenners, 10 Ind. 74-79; Clark v. Com., 14 Bush (Ky.) 166.

When the act of 1889 speaks of streets or highways, it refers to the streets or highways of a city, town or village: Cochran v. Library Co., 6 Phila. 492.

The subject of building passenger railways on township roads is not at all expressed in the title of an act providing for the "incorporation of street passenger...