Phil. Newtown Etc. R. Co.'s Appeal
| Decision Date | 23 April 1888 |
| Docket Number | 196 |
| Citation | 13 A. 708,120 Pa. 90 |
| Parties | PHIL., NEWTOWN ETC. R. CO.'S APPEAL. [P.N. & N.Y.R. CO. v. W. F. SNYDER, ET AL.] |
| Court | Pennsylvania Supreme Court |
Argued March 23, 1888
APPEAL FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.
No. 196 January Term 1888, Sup. Ct.; court below, No. 865 September Term 1887, C.P. No. 4.
On November 19, 1887, the Philadelphia, Newtown & New York Railroad Company filed a bill in equity against W. Fred. Snyder and others, petitioners, and Henry M. Dubois, master and Rebert C. V. Meyers and others, viewers. The bill in substance averred:
That the Philadelphia and Montgomery County Railroad Company was incorporated by the act of April 2, 1860, P.L. 677, with power to build a railroad beginning on or north of Berks street, between Front and Sixth, thence by any street to Lehigh avenue and Second street, and thence along Second street and road of the Kensington and Oxford Turnpike Co. (incorporated by act of March 17, 1842, P.L. 110), through Olney to any point on said turnpike in the Twenty-third ward with power to make such arrangements with said turnpike company as might be mutually agreed upon by lease, purchase or otherwise.
That by certain other acts of assembly, act of March 23, 1865, P.L 674; act of February 6, 1872, P.L. 85; act of March 20, 1872, P.L. 447; act of January 29, 1873, P.L. 104, the name was changed and its powers extended so as to allow it to construct a single or double track railroad upon the macadamized portion of said turnpike road, then constructed from Lehigh avenue and Second street to a point north of Erie avenue.
That by an agreement dated May 15, 1872, the plaintiff company had acquired by purchase that part of said turnpike lying south of Rising Sun lane, which sale was confirmed by the act of April 1, 1873, P.L. 460, and that, pursuant to its authority, in 1873 the plaintiff located its railroad along said turnpike as far south as Lehigh avenue and commenced the actual construction thereof from a point thereon about Erie avenue, where a temporary connection was made with the railroads of the Connecting and North Penn. Railroad companies, by which only was the plaintiff enabled to reach the city.
That the portion of said turnpike, between Erie and Lehigh avenues, along which the plaintiff's roadway had not been actually constructed, by the said acts of assembly, contract and location, became a sectional part of the plaintiff's right of way upon which to construct a double track railroad; that the width of the macadamized part of said turnpike was about thirty feet, the whole of which would be required to be occupied in the construction of said railroad, as was intended by the plaintiff company.
That the privilege of completing the plaintiff's road to the terminus named in its charter was of incalculable value, to give it an independent road into the city and enable it to establish its own depot at Lehigh avenue, and the plaintiff could not obtain any other right of way into the city south of Erie avenue without an expenditure of money which would practically make the undertaking impossible.
That on October 14, 1887, under the act of June 2, 1887, P.L. 306, a petition was filed in the Court of Quarter Sessions of Philadelphia county, setting out the incorporation of said turnpike company, the construction by it of a turnpike road, the sale and conveyance to the plaintiff of the part south of Rising Sun lane; that the plaintiff was receiving tolls for travel upon the part purchased; that the northern part was free from tolls under certain proceedings, and that it would be for the interest of the people of the county that that part of the turnpike road belonging to the plaintiff should become a public road, and upon said petition a master and a jury of view had been appointed; that notwithstanding there was no warrant in the said act of assembly for the condemnation of said portion of said turnpike, and that the said act was not intended to apply to a case where a part of a turnpike had been lawfully purchased by a railroad company for a part of its roadway, the said petitioners and the said master and jury were about to proceed under the said act to condemn the plaintiff's property: Praying,
1. That it might be declared that the said act of June 2, 1887, does not apply to that part of said turnpike road belonging to the plaintiff between Erie and Lehigh avenues in Philadelphia, and that it does not authorize the condemnation thereof.
2. For an injunction restraining the petitioners and the master and viewers from meeting, hearing, determining or reporting upon the petition or in any manner proceeding thereunder.
To this bill the defendants at once demurred upon the grounds following:
1. That the plaintiff set forth no equitable right, but only an alleged legal defence to a proceeding at law, and that its remedy in the proceedings at law was full and adequate.
2. That the ownership of the plaintiff of the franchise of building a railroad on certain highways was no answer to the freeing of one of said highways from tolls.
3, 4. That the franchise of the plaintiff to build a railroad on said turnpike was distinct from that to collect tolls, and the former does not affect the commonwealth's right over the other.
5. That the petition only sought to relieve the turnpike from tolls, and not to deprive the plaintiff of any power which it has or may have to construct a railroad thereon.
On December 12, 1887, the motion for an injunction was refused, the demurrer sustained and bill dismissed, ARNOLD, J., delivering the opinion:
The Kensington & Oxford Turnpike Company was chartered in 1842. It constructed a turnpike road from Second street and a point near the present Lehigh avenue, on the bed of the old Second street road, running northwardly through the county of Philadelphia. The Philadelphia, Newtown & New York Railroad Company, by an amendment to its charter obtained in 1872, is authorized to construct a single or double railroad track on the macadamized portion of the Kensington & Oxford Turnpike road. In May, 1872, the railroad company purchased from the turnpike company the right to lay railroad tracks on the turnpike road from Rising Sun lane to the southern terminus thereof at Lehigh avenue, and also the right of way and franchise of the turnpike company. The railroad company laid a track on a portion of the turnpike road extending from Rising Sun lane down to about Erie avenue, but from that point south to Lehigh avenue, a distance of about one mile, no railroad tracks have been laid. The railroad company maintains the turnpike as a pay road, and demands and collects tolls for the use of it as a turnpike under the authority given by another amendment to its charter obtained April 1, 1873, since when it has had the two franchises of a railroad and a turnpike company. The citizens of the vicinity have filed a petition to have the turnpike freed from tolls under the act of June 2, 1887, P.L. 306, and it is to restrain further proceedings upon said petition that this bill has been filed.
Second street is one of the main streets of the city and is on the plotted plans thereof, with city lots laid out and dwellings built upon it. There are no railroad tracks on that part of it which the petitioners desire to have freed from tolls.
The cases cited by the plaintiff do not rule this case. Conceding that a municipal corporation has no power to lay out a street longitudinally on ground on which a railroad company has lawfully laid its tracks, as was held in the case of The New Jersey Southern Railroad Co. v. Long Branch, 39 N.J.L. 28, it does not follow that the municipal government may not take and use an old turnpike as a street, so long as the railroad company has no tracks or essential buildings on it. In the case of The P.W. & B.R. Co. v. Philadelphia, 9 Phila. 563, it was held by PAXSON, J., that a city government may lay out streets through the depot grounds of a railroad company, in such a manner as not to destroy or essentially impair the franchise of the railroad company.
The act of assembly for freeing turnpikes from toll acts upon the turnpike franchise only, and not upon the owner or any other franchises it may possess. The right of the railroad company to lay railroad tracks on the turnpike bed does not prevent the citizens of the vicinity from proceeding to have the turnpike made a public road free of tolls, until the company sees fit to exercise its right. The fact that after condemnation and payment of the damages the turnpike will be a public road, to be repaired and maintained at the public expense, presents no obstacle to the proceedings to abolish the toll-gates on it. That is the natural as well as the legal consequence of the proceedings. A franchise is not more sacred than private property in land under patent: Commonwealth v. Penn. Canal Co., 66 Pa. 47. A turnpike franchise must yield to the sovereign right when public exigencies require it. Plan of Kensington, 2 R. 445; Bonaparte v. Camden & Amboy R. Co., 1 Bald. 205; and it may be taken under a general statute: Twenty-second St., 102 Pa. 108.
Removing the gates and freeing the street from turnpike tolls will not bind the...
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