Rafferty v. Central Traction Co.

• Decision Date: 21 March 1892
• Docket Number: 259
• Citation: 23 A. 884,147 Pa. 579
• Parties: Rafferty et al. v. Central Traction Co., Appellant
• Court: Pennsylvania Supreme Court

23 A. 884

147 Pa. 579

Rafferty et al. v. Central Traction Co., Appellant

No. 259

Supreme Court of Pennsylvania

March 21, 1892

Argued November 10, 1891

Appeal, No. 259, Oct. T., 1891, by defendant, from decree of C.P. No. 2, Allegheny Co., July T., 1889, No. 489, in favor of plaintiffs, Bernard Rafferty et al.

Bill in equity to restrain defendants from operating a cable street railway on High street in the city of Pittsburgh.

From the record it appeared that the bill was filed by six separate owners of property on High street. The defendant demurred to the bill on the ground of misjoinder of parties. The court overruled the demurrer, and ordered the defendant to answer. [1]

The case was referred to Lewis McMullen, Esq., as master, who reported the facts as stated in the opinion of the Supreme Court. The master recommended a decree perpetually enjoining the defendant from the use of High street. The following exceptions, inter alia, were filed to the master's report:

1. The master erred in holding that the bill is maintainable under the authorities. [2]

2. The master should have stated in addition to the facts relied upon by the defendants, as showing their legal right to occupy High street, that the defendants rely upon the agreement between the company and the Central Passenger Company, evidenced by the resolutions in evidence and the letter of the officers of the Passenger Company to the Traction Company preceding the work. [3]

3. The master erred in holding that the agreement of December 27 1888, between the Traction and Railroad Companies, shows "that the Traction Company was to construct the tracks of said branches at its own cost, if it desired to use them." [4]

4. The master erred in holding, as a matter of law, that such companies (to wit, traction companies) are only authorized to enter on such streets upon which railways are constructed that is, built, completed, -- and all damages sustained by private individuals, for which there was a remedy, would have been settled and paid for by the railway company.

5. The master erred in the effect given by him to the resolution of the board of directors of the Passenger Railway Company of December 27, 1888, and the letter of the same date from the Passenger Company to the president of the Traction Company. [5]

6. The master erred in holding that the Central Traction Company by entering upon High street, and therein constructing such motors, cables and other appliances, and the necessary apparatus and mechanical fixtures, including tracks for the traction of cars over and along said street, before a passenger railway had been constructed upon said street, exceeded the power granted by the act of the legislature under which it was incorporated, and therefore its entry on said street and the construction of its motors, cables, railroad, etc., was without authority of law and hence a nuisance. [6]

7. The master erred in recommending a decree in favor of plaintiffs. [7]

8. The master should have recommended a decree in favor of the defendants, dismissing the bill. [8]

The court, in an opinion by EWING, P.J., overruled the exceptions, and entered the following decree:

"And now, to wit, August 4, 1891, this cause came on to be heard at this term upon bill, answer, proofs, master's report and exceptions thereto, and was argued by counsel, and thereupon the exceptions to said master's report are dismissed and said report is confirmed absolutely, and it is considered, adjudged and decreed that an injunction issue under the seal of this court restraining and enjoining the defendants, their agents and servants perpetually from constructing and laying down upon High street between Wylie street (or avenue) and Webster street (or avenue) in the city of Pittsburgh, any track or tracks, and from opening the surface of said High street, or digging upon the same for such purpose.

"And it appearing to the court that since the date of the filing of the original bill in this cause, and notice thereof to defendants, defendants have laid down and constructed their conduits, machinery and tracks upon said High street; it is further considered, adjudged and decreed that the said defendants take up and remove from said High street, between Wylie and Webster streets the said conduits, machinery and tracks heretofore laid down and constructed by defendants upon and under the surface of said High street, and restore and replace and repair the portion of said High street occupied by said conduits, machinery and tracks. And it is further considered, adjudged and decreed that the said defendants pay the costs of these proceedings, including the master's fee, which is now fixed at the sum of one thousand dollars ($1,000)."

Errors assigned were (1) in overruling demurrer; (2-9) in dismissing exceptions, quoting exceptions; (10) the decree, quoting it; and (11) in not decreeing a dismissal of plaintiffs' bill.

The decree of the court below is reversed, and the bill of the plaintiffs and all proceedings thereunder are dismissed and set aside, but all the costs of the case shall be paid by the defendant.

W. A. Stone and P. C. Knox, for appellants. -- The bill was fatally defective on account of misjoinder of parties: Hudson v. Maddison, 12 Simon, 416; Cutting v. Gilbert, 5 Blatchford, 259; Hinchman v. Railroad Co., 2 C.E. Green, 75; Cumberland Valley R.R. Co.'s Ap., 62 Pa. 218.

Under the act of 1887, the railway company had the right to make a contract with the Traction Company to furnish power by a mechanical means to operate its railway.

The company had a right to contract under the act of February 13, 1870. A passenger railway company is a railroad within the meaning of this act: Hestonville Ry. v. Philadelphia, 89 Pa. 210; Millvale v. Evergreen Pass. Ry. Co., 131 Pa. 1; Mount Holly Paper Co.'s Ap., 99 Pa. 513.

The laying of street railway tracks upon a highway is not an additional servitude: Com. v. E. & N.E.R.R. Co., 3 Casey, 354; Mercer v. P.F.W. & C.R.R. Co., 12 Casey, 104; O'Connor v. Pittsburgh, 18 Pa. 189; Pennsylvania R.R. Co.'s Ap., 115 Pa. 526; Phila. & Trenton R.R. Co., 6 Wharton, 41; Faust v. Pass. Ry. Co., 3 Phila. 164; Hodges v. Pass. Ry. Co., 58 Md. 603; Elliott v. Fair Haven R.R. Co., 32 Conn. 579; Williams v. Ry. Co., 41 F. 556; Halsey v. Ry. Co., 20 A. 859; Newell v. Ry. Co., 35 Minn. 112; Lockhart v. Craig Ry. Co., 139 Pa. 419; Taggart v. Newport Ry. Co., 7 Ry. and Corp. L.J. 385.

The right of access to the property of plaintiffs is not disturbed except at the moment a car is passing in front of the property; but the owners themselves cannot keep vehicles standing indefinitely in front of their property: Norristown v. Moyer, 67 Pa. 355; Rex v. Russell, 6 East, 427; Kellinger v. Railway Co., 50 N.Y. 206; Carson v. Railway Co., 35 Cal. 325; Hobart v. Railway Co., 27 Wis. 194.

The interference with the right of placing building materials in the street is in no way a confiscation of plaintiff's property: Mallory v. Griffey, 85 Pa. 275; Piollet v. Simmers, 106 Pa. 95.

Geo. Shiras, C. C. Dickey and George Shiras, 3d., with him, for appellee. -- The bill was not multifarious: Story's Eq. Pl., sec. 271; Wier's Ap., 74 Pa. 230; Dilworth's Ap., 91 Pa. 247; Powell v. Powis, 1 Y. & J. 159; Daniell's Ch. Prac. 346; Persch v. Quiggle, 57 Pa. 247; Kunkle v. Markell, 26 Md. 390; Williams v. West, 2 Md. 198; Young v. Allegheny Oil Co., 10 Phila. 525; Shields v. Thomas, 18 Howard, 253; Brinkerhoff v. Brown et al., 6 Johns. Ch. 139; Dix et al. v. Briggs, 9 Paige, 595; Sizer v. Miller, 9 Paige, 605.

A number of persons may join as plaintiffs in a bill to restrain the collection of a tax illegally assessed: Sallade v. Township, 2 Pearson, 48; Dunne v. Deegan et al., 43 Pa. 334; Tyson v. School Directors of Halifax Township, 51 Pa. 9. If the nature of the transaction makes but a single suit convenient, the objection of multifariousness will not be sustained: City v. Trustees, 12 W.N.C. 477; Stewart's Ap., 56 Pa. 413; Penna. R.R. Co.'s Ap., 115 Pa. 514.

The defendants suffer special injuries, separate and distinct from the public: Edgwood Railroad Co.'s Ap., 79 Pa. 257; McCandless's Ap., 70 Pa. 210; Henry v. Deitrich, 84 Pa. 286; Sterling's Ap., 111 Pa. 35.

The Traction Company's entry was wholly illegal: Thomas v. Railroad, 101 U.S. 71; G.B. & M.R.R. v. Union Steamboat Co., 17 Otto, 98; T. & B.R.R. v. B.H.T. & W.R.R., 86 N.Y. 112; Com. v. Erie & Northeast R.R., 27 Pa. 351.

The act of 1887 does not give to the Traction Co. a right to enter upon the streets where another passenger railway company has never been constructed.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS and MITCHELL, JJ.

OPINION

MR. JUSTICE GREEN:

We dismiss the first and second assignments of error, because we think that the cause of complaint is one that is common to all the plaintiffs, the right under which all claim is precisely the same as to each, the complaint of all is against the same defendant for the doing of acts which affected all alike and in the same manner, the defence set up is common to all the plaintiffs, and the testimony, proofs and decree are alike as to all the plaintiffs. It is not necessary to cite authorities to show that when all these matters concur a bill filed by several such plaintiffs against a common defendant is not multifarious.

On the merits of the case it is not contested that all the powers which the passenger railway company possessed were conferred upon the Traction Co. by the agreement between the two companies made December 27, 1888. It must also be conceded that the Traction Co. had full power, under the act of 1887 "to lease the property and franchises of passenger railway companies which they may desire to operate, and to operate said...