Pittsburg & West End Passenger Ry. v. Point Bridge Co.

• Decision Date: 13 November 1894
• Docket Number: 241
• Citation: 30 A. 511,165 Pa. 37
• Parties: Pittsburg & West End Passenger Ry. v. Point Bridge Co., Appellant
• Court: Pennsylvania Supreme Court

30 A. 511

165 Pa. 37

Pittsburg & West End Passenger Ry. v. Point Bridge Co., Appellant

No. 241

Supreme Court of Pennsylvania

November 13, 1894

Argued May 3, 1894

Appeal, No. 241, Oct. T., 1893, by defendant, from decree of C.P. No. 2, Allegheny Co., April T., 1892, No. 113, on bill in equity. Affirmed.

Bill to restrain bridge company from interfering with street railway in operation of cars on bridge, etc.

The case was referred to James S. Young, Esq., as master, who reported in favor of granting the prayers of the bill.

The facts appear by the opinion of the Supreme Court.

The court below entered the following decree:

"First. The exceptions filed by the parties respectively to the master's report are overruled, except the defendant's exception as to the amount of compensation to be paid by the plaintiff to the defendant.

"Second. The Point Bridge Company, the defendant herein, its servants and agents, are hereby restrained and enjoined, until the further order of this court, from any and all interference with the Pittsburg & West End Passenger Railway Company, and its servants and agents, in the preparation of and use of said bridge for the operation of its cars by electricity over and across the same; but such preparation and the use of the bridge shall for the present be as follows: It is ordered that the cars shall not run at a greater rate of speed than four miles per hour while upon said bridge, and that there shall not be more than two cars upon the same span of said bridge at any one time.

"Third. The wires and other apparatus for applying electricity as the motive power in propelling said cars, shall be erected and constructed upon and across said bridge as shown in the testimony of S. L. Tone, one of the witnesses examined before the master, and the plan produced by him and now filed in this case, it being the same plan recommended by the master and to which no exceptions have been filed by the defendant. That in doing the work contemplated under the provisions of paragraphs two, three and four of this decree, the ordinary travel over the bridge shall be allowed and accommodated to the fullest extent reasonably possible.

"Fourth. While the Point Bridge Company is restrained from interfering with the Pittsburg & West End Passenger Railway Company in the use of the bridge and the rails as at present laid, it is ordered that the said railway company, at its own expense and within six months from the date, with the consent of the bridge company, lay down, over and across said bridge, girder rails in lieu and place of the rails now on said bridge, and properly plank said bridge to suit said rails. The rails shall be laid and bridge planked under the supervision and care of the engineer of the railway company and also of the bridge company, and the said work shall be done when commenced as rapidly as it can be reasonably done, and with no unnecessary hindrance to travel upon and over said bridge.

"Fifth. That the Pittsburg & West End Passenger Railway Company shall pay to the Point Bridge Company for its use of said bridge the sum of eight thousand ($8,000) dollars per year, payable monthly. This rate shall not control for the use of said bridge for a longer period than five years from this date.

"Sixth. That the Pittsburg & West End Passenger Railway Company shall pay the costs and expenses of stringing the wires across said bridge and of taking up the old rails and laying the girder rails and planking the bridge in connection therewith, and shall pay the costs in this suit to date.

"Seventh. Either party hereto at any time may, during the continuance of this order, make application to the court, and, for proper cause, may move a modification of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.

"Eighth. Before issuance of the injunction, the plaintiff company shall file a bond in the penal sum of ten thousand ($10,000) dollars with sufficient sureties, to be approved by the court, conditioned to indemnify the defendant company for all damages that may be sustained by reason of such injunction."

Errors assigned were (1-2) in assuming jurisdiction; (3) decree quoting it.

The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellant.

A. M Brown and P. C. Knox, James H. Reed and J. B. Brown with them, for appellant. -- The title of the act of 1889 does not give notice of the provisions in § 20, intended to revive or validate void charters, granted ten years before its enactment: Union Pass. Ry. Co.'s Ap., 81* Pa. 91; Rogers v. Imp. Co., 109 Pa. 109.

If however § 20 of the act of 1889 is a valid enactment, its utmost effect could only be to protect and preserve property rights of the company acquired by gift, conveyance, etc., during the period of its disability and prior to its incorporation. If legally incorporated under the act of 1889, it became a corporation only under that act, and not under the void act of 1879.

The municipality could not, by ordinance or otherwise, empower plaintiff to occupy and use the bridge and release it (plaintiff) from its liability to make compensation. Any act of the municipal authorities to that end would be clearly ultra vires: Snow v. Twp., 78 Pa. 181; Phillips v. R.R., 78 Pa. 177.

The necessity which will permit one corporation to take the franchise of another must be absolute: Pittsburg Junction R.R. Co.'s Ap., 122 Pa. 511; Sharon Ry. Co.'s Ap., 122 Pa. 533; Penna. R.R. Co.'s Ap., 93 Pa. 150; act of May 14, 1889, § 17, P.L. 211.

All acts of incorporation and acts extending corporate privileges are to be construed most strongly against companies setting them up, and what is not unequivocally granted must be taken to be withheld: Packer v. R.R., 19 Pa. 211; Com. v. Erie & N.E.R.R., 27 Pa. 339; Cake v. R.R., 87 Pa. 307; Penna. R.R. Co.'s Ap., 93 Pa. 150.

A court of equity has no jurisdiction: Sharon Ry. Co.'s Ap., 122 Pa. 533; Elliott's Roads and Streets, 23, 24; Ryves v. Wellington, 9 Beav. 579.

D. T. Watson, Johns McCleave with him, for appellee. -- The use of a highway by the street passenger railway for the erection of the necessary poles, etc., to sustain the wires which conduct the electricity to the cars, is not a taking of private property for public use, and is not an additional burden on the easement which the property holder granted to the public when the street was dedicated: Covington Bridge Co. v. R.R., 50 A. & E.R.R. Cas. 395; Lockhart v. Ry., 139 Pa. 419; Rafferty v. Ry., 147 Pa. 592; Taggart v. Ry., 7 Ry. & Corp. L.J. 385; Louisville Bagging Co. v. Ry., cited in Booth's St. Ry. § 67; Pelton v. R.R., 22 W.L.B. 67; DuBois Traction Co. v. Ry., 10 Pa. C.C.R. 404; Keasbey on Electric Wires, 15, 16.

The bridge is a public highway: Erie Co. v. Com., 127 Pa. 207; R.R. v. Com'r, 4 Neb. 456; Com. v. Bridge Co., 66 Mass. 244; Rapho v. Moore, 68 Pa. 408; Twp. v. Perry Co., 78 Pa. 459; Monongahela Bridge Co. v. R.R., 114 Pa. 485; Erie Co. v. Com., 127 Pa. 207; Washer v. Bullitt Co., 110 U.S. 564; Chicago v. McGinn, 51 Ill. 272.

The state, in the general passenger railway act of 1889, authorized street passenger railways incorporated under it to use and cross the highways and bridges of the state within the defined route of each railway, using electricity as a motive power: Monongahela Bridge Co. v. Ry., 114 Pa. 485; Penna. R.R. v. Ry., 152 Pa. 127.

The authority to change from horse to electricity as a motive power is probably inherent in the street railway company without express legislative sanction: Reeves v. Traction Co., 152 Pa. 162; Williams v. Ry., 41 F. 556; Roake v. Tel. & Tel. Co., 41 N.J. Eq. 35; Phila. & Trenton R.R. Case, 6 Whart. 25; Scott and Jarmagin on Telegraphs, § 34; High, Inj. § 762; McCormick v. District of Columbia, 4 Mackey, 396; Booth's St. Ry., § 83; Charles River Bridge v. Warren Bridge Co., 11 Pet. 547; Stone v. Mississippi, 101 U.S. 814; Provident Institution for Savings' Case, 91 Cush. 604; Morawetz, Corp. § 1062; Mott v. R.R., 30 Pa. 9.

Any new mode of transportation which is consistent with the use by the general public of the bridge or street is within the dedication of the bridge or street: Lockhart v. Ry., 139 Pa. 419, Rafferty v. Traction Ry., 147 Pa. 592; Taggart v. Pa. 419; Rafferty v. Traction Ry., 147 Pa. 592; Taggart v. Ry., 7 Ry. & Corp. L.J. 385; Williams v. Ry., 41 F. 556; Louisville Bagging Co. v. Ry., cited in Booth's St. Ry. § 67; Felton v. R.R., 22 W.L.B. 67; Du Bois Traction Co. v. Ry., 10 Pa. C.C.R. 404; Dist. Atty. v. West Chester, 9 Pa. C.C.R. 546; Booth, St. Ry. § 83.

If, however, the court should think that the right granted to the passenger railway company by the general passenger railway act of 1889 is the right to take and condemn, then the railway company would be liable for all damages the bridge company would suffer, and there is ample provision under the constitution of the state and the general laws affording an adequate remedy to the bridge company: Duncan v. Ry., 94 Pa. 435; R.R. v. Duncan, 111 Pa. 352; Chester Co. v. Brower, 117 Pa. 647; Delaware Co.'s Ap., 119 Pa. 159; O'Brien v. Ry., 119 Pa. 191.

Section 20 of the street passenger railway act of 1889, P.L. 217, is not in conflict with article 3 of the constitution, owing either to defect in the title or because it is local or special law.

The charter is not liable to collateral attack West. Pa. R.R. Appeal, 104 Pa. 399.

Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and DEAN, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The Point Bridge Company was incorporated under the general corporation act of 1874 for the purpose of erecting constructing and maintaining a toll bridge and approaches thereto for public travel and...