Pennsylvania Railroad Co. v. Riblet

• Decision Date: 03 January 1871
• Parties: The Pennsylvania Railroad Co. <I>versus</I> Riblet.
• Court: Pennsylvania Supreme Court

66 Pa. 164

The Pennsylvania Railroad Co. versus Riblet.

Supreme Court of Pennsylvania.

October 18, 1870.

January 3, 1871.

October 18th 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Erie county: No. 118, to October and November Term 1870.

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J. R. Thompson, for plaintiffs in error.—The Philadelphia and Erie Railroad Company is not required by its charter to make or rebuild fences. The Acts of 1868 impose new conditions without the consent of the corporation, and are therefore unconstitutional: Meadville v. The Erie Canal Co., 6 Harris 66; The City of Erie v. The Erie Canal Co., 9 P. F. Smith 174; Brown v. Hummel, 6 Barr 86.

W. Benson, for defendant in error.—A railroad is subject to the same rules and regulations as a natural person, provided they do not infringe its charter: Angell & Ames on Corp., § 265 et seq. The legislature may require railroad companies to fence, that being within the police power: Thorpe v. Rutland & B. Railway, 27 Vermont 140; State v. Noyes, 47 Maine 189; Madison & Indianapolis Railroad Co. v. Whitenck, 8 Ind. 217; New Albany & Salem Railroad Co. v. Tilton, 12 Id. 310; Indianapolis & Cincinnati Railroad Co. v. McAhren, Id. 552; Iowa v. Galena, &c., Railroad Co., 16 Iowa 6; Bulkly v. New York, &c., Railroad Co., 27 Conn. 479; Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer and Saratoga Railroad Co., Id. 390; Talmage v. Rensselaer and Saratoga Railroad Co., 13 Id. 493; Abbott's Digest of Law on Corporations 643, § 381; Boston, Concord and Montreal Railway v. State, 32 N. H. 215; Dartmouth Coll. v. Woodward, 4 Wheat. 518; Moore v. Veasie, 32 Maine 343; Providence Bank v. Billings, 4 Peters R. 514; Easton Bank v. Commonwealth, 10 Barr 442; Peters v. Iron Mountain Railway, 23 Missouri 107; Lyman v. Boston and W. Railroad, 4 Cushing 288. The legislature may give a new remedy: Hepburn v. Curts, 7 Watts 300; Schenly v. The Commonwealth, 12 Casey 29-57; Biddle v. Starr, 9 Barr 467; The Pittsburg Turnpike Co. v. The Commonwealth, 2 Watts 433; Taggart v. McGinn, 2 Harris 157; Sands v. Tillinghast, 11 Ind. 543; Camden and Amboy Railroad Co. v. Briggs, 2 Zabr. 623.

The opinion of the court was delivered, January 3d 1871, by SHARSWOOD, J.

It appears to be well settled that without some provision in their charter to that effect, a railroad company is not bound to make or maintain fences along the line of their track: 1 Redfield on Railways 482; Railroad Company v. Skinner, 7 Harris 298. It may be conceded that it would not be within the constitutional power of the legislature to impose such an obligation on any existing company: at all events, not on any company whose charter antedates the amendment to the Constitution of 1854 and contains no reservation to the legislature of the right to alter or amend it. The plaintiffs in error succeeding to all the rights of the Philadelphia and Erie Railroad Company, which was incorporated by an Act of April 3d 1837, Pamph. L. 170, by the name of the Sunbury and Erie Railroad Company, and in which there is no such reservation, undoubtedly occupy this position. For the state now to attempt to impose any new burdens in addition to those provided in the charter would be for one party to add a new term to the contract without the consent of the other, and that would impair or make it worse as the word imports: City of Erie v. Erie Canal Company, 9 P. F. Smith 174. It may also be conceded for the sake of the argument that it would not be in the power of the legislature to enlarge the common-law liabilities of such incorporated bodies for injuries to others, either as common carriers of passengers or merchandise, or as grantees of a right of way over the lands of others: at least, unless by some law or rule of general application to all persons, natural or artificial. We need express no opinion however upon so important a question here, as it is not involved in this case. We may agree that the legislature could not make such a company liable to answer in damages for barns, houses or other improvements destroyed by sparks from their locomotives without negligence in them, their agents or servants. These would be mere questions of private right between the parties, in which strangers or the public at large would have no interest. The constitutionality of the proviso of the Act of April 13th 1868, Pamph L. 1022, does not depend upon a denial of any of these concessions. It rests upon other and entirely different principles. It may be true that the obligation to make and maintain the fences along the road is on the landowner. If they fall to decay, are broken down by cattle or other trespassers, or are destroyed by fire, generally they are bound to repair. The act in question indeed makes it the duty of the railroad company in the first instance to repair "in all cases where fences along the line of any railroad are destroyed by fire caused by the running of trains or by the employees of any railroad," and to do it promptly, under the penalty prescribed by the Act of March 23d 1868, Pamph. L. 424. I am...