Philadelphia, Wilmington and Baltimore Railroad Co. v. Williams

• Decision Date: 13 May 1867
• Citation: 54 Pa. 103
• Court: Pennsylvania Supreme Court
• Parties: The Philadelphia, Wilmington and Baltimore Railroad Company <I>versus</I> Williams.

Page 103

54 Pa. 103

The Philadelphia, Wilmington and Baltimore Railroad Company versus Williams.

Supreme Court of Pennsylvania.

January 17, 1867.

May 13, 1867.

January 17th 1867.

Before WOODWARD, C. J., THOMPSON, READ and AGNEW, JJ. STRONG, J., at Nisi Prius

Error to the District Court of Philadelphia.

J. C. Gowen, for plaintiffs in error.—The Act of Incorporation gave authority to make all works and appendages necessary for the company's convenience in the use of their road. The authority was not exhausted when this track was laid. The works and appendages are such as may from time to time become necessary: Railroad Co. v. Wilson, 17 Ills. 124; Lehigh Navigation Co. v. Beaver Meadow Railroad (S. C. 1864, per Woodward, C. J.); New York and Erie Railroad v. Young, 6 Casey 175. The right of entry and appropriation was not impaired by omission to make compensation. The charter was granted in 1831, and is therefore not affected by Article VII. § 4 of the constitutional amendments of 1838. The prohibition of Article IX. § 10 of the constitution, against taking private property for public use, is not broken when an adequate remedy is provided: Pittsburg v. Scott, 1 Barr 309; Rogers v. Broadhead, 20 Johns. 735; Bloodgood v. M. & H. Railroad, 18 Wend. 17; Kensington v. Hood, 10 Barr 93; Jerome v. Ross, 7 Johns. Ch. R. 343; Whelock v. Pratt, 4 Wend. 650.

The compensation provided for is to be after the appropriation of the land.

The company's interference with the way was not unauthorized, if there had been no remedy. The railroad is a public highway, and the allowance of 6 per cent. in grants from the Commonwealth was compensation: Workman v. Mifflin, 6 Casey 362; McClenachan v. Curwin, 3 Yeates 362; S. C., 6 Binn. 509; Fene v. Meily, Id. 153; Harvey v. Lloyd, 3 Barr 336.

Here nothing has been taken from the plaintiff; the track is at most an annoyance: Sharpless v. Philadelphia, 9 Harris 166; Philadelphia and Trenton Railroad Co., 6 Wh. 46; Monon. N. Co. v. Coons, 6 Id. 116; Pittsburg v. Scott, 1 Barr 314; Callender v. Marsh, 1 Pick. 418; Charles River Bridge v. Warren Bridge, 7 Pick. 344; Henry v. Pittsburg & Allegheny Bridge Co., 8 W. & S. 85; Watson v. Railroad, 1 Wright 479.

[During the argument WOODWARD, C. J., referred to Harvey v. Lacka. & Bloomsburg Railroad, 11 Wright 428.]

J. Samuel, for defendants in error.—Acts of incorporation are in derogation of private right, and are to be strictly construed against the grantees: Webb v. Manch. Railroad, 1 Railway Cases 599; 4 Id. 560; Scales v. Pickering, 4 Bing. 448; Blackman v. Glamorgan Can. Co., 1 M. & K. 162, 1 M. & P. 195, 2 Scott N. R. 337; Shelford 67; Charles River Bridge v. Warren Bridge, 11 Peters 543; Dartmouth College v. Woodward, 4 Wheat. 636; Bank of United States v. Dandridge, 12 Id. 64; Stormfeltz v. Manor Turnpike Co., 1 Harris 500; Commonwealth v. N. L. Gas Co., 2 Jones 318; Commonwealth v. E. & N. E. Railroad, 3 Casey 339.

The rights of this charter are to enter upon and use land, which does not include a right to obstruct a way: Brockett v. Ohio & Penna. Railroad, 2 Harris 241; 2 Bl. Com. 17, 19; Savil v. Savil, Fort. 351; Westfaling v. Westfaling, 3 Atk. 464; Ca. Temp. Talb. 143; Bradshaw v. Ploughman, 1 East 441; Goodtitle v. Otway, 8 Id. 357; Black v. Hepburne, 2 Yeates 331; Lefevre v. Lefevre, 4 S. & R. 243; Workman v. Mifflin, 6 Casey 371; Voegtly v. Pittsburg Railroad, 2 Grant 245; Act of Incorporation, April 2d 1831, § 14; General Railroad Act, Feb. 19th 1849, § 12, Purd. 840, pl. 17; Pamph. L. 84; Acts of March 20th 1845, § 1, Purd. 845, pl. 43, Pamph. L. 191; April 12th 1851, § 2, Purd. 844, pl. 42, Pamph. L. 518.

If the act gives power to obstruct the way, it is unconstitutional: Constitution, art. 10, § 10.

An adequate remedy must be provided upon an adequate fund: Bloodgood v. Railroad, 18 Wend. 18; Yost's Report, 5 Harris 532. A right of way is property: Monon. Nav. Co., 6 W. & S. 101; Barclay Railroad v. Ingham, 12 Casey 194; Lehigh V. Railroad v. Trone, 4 Casey 206; Pittsburg v. Scott, 1 Barr 309; Commonwealth v. E. & N. E. Railroad, 3 Casey 339.

The 6 per cent. allowance does not apply to Philadelphia, which was laid out by Penn and provision made for streets.

J. E. Gowen, for plaintiff in error, in reply.—Workman v. Mifflin recognised the allowance of 6 per cent., and it was a case in Philadelphia. He cited, further, McLaughlin v. Railroad, 5 Richardson 583.

The opinion of the court was delivered, May 13th 1867, by AGNEW, J.

A parcel of ground adjacent to Prime street and Washington avenue was laid out into lots extending from Washington avenue up Clement street, leaving a strip four feet wide in the rear of the lots to be used by the lot owners as a passage out to Washington avenue. The deed conveying to Mrs. Ellen Williams one of these lots (No. 1023), granted also the free and common use, right, liberty and privilege of said four feet wide alley as and for a passage-way, and watercourse at all times hereafter for ever, and subject to the payment of a proportionate part of the expenses of keeping said alley in good order and repair at all times hereafter for ever. The declaration of the plaintiff was in trespass on the case, alleging as the injury the construction of the defendants' railroad track crossing the four feet wide alley, and obstructing Mrs. Williams' right of way and watercourse. The track in question was a turnout and siding from the defendants' main track on Washington avenue to their engine-house, built upon a lot of their own near Washington avenue, and adjoining the four feet alley on the opposite side from the plaintiff's lot. The form of the action involves the right of the railroad company to obstruct the plaintiff's way and watercourse by means of the track laid across it. The authority to do this, claimed by the company, is found in the act authorizing the governor to incorporate the Philadelphia and Delaware County and Southwark Railroad Companies, approved April 2d 1831; the 14th section of an act approved 27th February 1838, and an ordinance of the city councils passed May 24th 1862. The tenth section of the Act of 1831 authorized the company "as soon as they conveniently can, to locate and construct a railroad of one or more tracks," and "to make, construct and erect such warehouses, toll-houses, carriages, cars and all the works and appendages necessary for the convenience of the said company for the use of said railroad." The oath of the viewers contained in the 12th section requires them to assess the damages caused by the construction of the railroad and other works. This grant of power unquestionably carries with it the right to construct turnouts, sidings, stations and engine-houses, and all works and appendages usual in the convenient operation of a railroad. A railroad without switches, sidings, turnouts and buildings for fuel, water, engines, stations, &c., would be useless in a great measure. They are essential to the operation of the road and to the transportation of freight and passengers with security and dispatch. The expression "as soon as they can conveniently locate and construct" is not a limitation upon the power to compel the company to exercise its whole authority in the very beginning, when the demands of business are few. It would be an unreasonable construction of its charter to require provision to be made for all the unknown wants of the future. The increase in trade and business, and the changes taking place, often require new and increased facilities. The argument that the track and the engine-house is the private way of the railroad company, not used by the public, and therefore no part of the public highway, is ingenious, but unsound. Admitting that it is not a part of the public highway, in the sense that it is not used immediately by the public, but by the company only, it does not follow that the ground is not taken for public use under the power of eminent domain. It is not the special use made of it which characterizes it, but its convenient necessity to that part which is...