South Side Pass. Railway Co. v. Second Ave. Pass. Ry. Co.

• Decision Date: 22 May 1899
• Docket Number: 76,87
• Citation: 43 A. 346,191 Pa. 492
• Parties: The South Side Passenger Railway Company v. Second Avenue Passenger Railway Company, the Second Avenue Traction Company and the Pittsburg & Birmingham Traction Company. Appeal by South Side Passenger Railway Company. Appeal by Pittsburg & Birmingham Traction Company
• Court: Pennsylvania Supreme Court

43 A. 346

191 Pa. 492

The South Side Passenger Railway Company v. Second Avenue Passenger Railway Company, the Second Avenue Traction Company and the Pittsburg & Birmingham Traction Company. Appeal by South Side Passenger Railway Company. Appeal by Pittsburg & Birmingham Traction Company

Nos. 76, 87

Supreme Court of Pennsylvania

May 22, 1899

Argued March 9, 1899 [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeals, Nos. 76 and 87, Oct. T., 1898, by South Side Passenger Railway Company and Pittsburg and Birmingham Traction Co., from decree of C.P. No. 2, Allegheny Co., April T., 1897, No. 552, on bill in equity. Reversed in part.

Bill in equity for an injunction and for an account.

WHITE, P.J., filed the following opinion:

The bill in this case was filed March 10, 1897, alleging that the plaintiff company was the owner of the tracks on Second avenue, between the Tenth street bridge and Grant street and Market street, in the city of Pittsburg; that the Second Avenue Passenger Railway Company and the Second Avenue Traction Company have been using these tracks for some years, under a pretended agreement between the Pittsburg & Birmingham Traction Company and the Second Avenue Passenger Railway Company, dated November 9, 1891; that said agreement was never signed by the plaintiff company and is invalid; and praying that these defendants be enjoined from using the said tracks and account for profits.

The Pittsburg & Birmingham Traction Company filed a cross-bill, admitting that the tracks belonged to the plaintiff company, and alleging that said agreement of November 9, 1891, was made by the officers of the Pittsburg & Birmingham Traction Company, but without authority, and was never ratified by the stockholders of that company; also, that the said Second Avenue Traction Company has no rights whatever under that agreement, and, if it has, it is using the tracks to an extent and for purposes not authorized by that agreement, and praying that it be enjoined, etc.

This contention, therefore, hinges on the validity, or proper construction of that agreement. The different counsel have presented requests for findings of fact, quite numerous and various, and some of them, I think, unimportant. Instead of answering these requests in detail, I shall give all the facts which I deem material as to the points in dispute, which I think will be more satisfactory; and all requests not embraced in my findings shall be considered as refused.

FINDINGS OF FACT.

1. The Pittsburg & Ormsby Passenger Railway Company was chartered to construct a passenger railway from Ormsby borough to Market street, in Pittsburg, crossing the Monongahela river at the Birmingham bridge, at Tenth street, Pittsburg, and along Second avenue to Grant street, and thence to Market street. The road was constructed in 1871, and horse cars were running thereon. In 1874, on a mortgage of that company, its franchises, road, equipment, etc., were sold, and under the purchase at sheriff's sale a new company was organized, called the South Side Passenger Railroad Company, which took possession and ran the road until 1881, when the Pittsburg & Birmingham Passenger Railway Company was organized. That company bought all the shares of the stock of the South Side Passenger Railroad Company, except five shares, the owner of which is uncertain, and has never appeared objecting to any of the subsequent proceedings, and is not a party to this proceeding. The Pittsburg & Birmingham Passenger Railway Company took possession of the road and ran it until 1889, when the Pittsburg & Birmingham Traction Company was organized, and took, by transfer, all the stock of the Pittsburg & Birmingham Passenger Railway Company, and also all the stock of the South Side Railroad Company, except the five shares above referred to, and has been running the road ever since.

2. The organizations of the South Side Railroad Company and the Pittsburg & Birmingham Passenger Railway Company have been kept up, but, as all the stock of those two companies, except the five shares of the South Side Railroad Company, above referred to, is owned by the Pittsburg & Birmingham Traction Company, it has entire control of those two companies; it runs the road, takes all receipts, pays all expenses and owns all the cars. It renders no account to these companies, but assumed and pays the obligations of the road at the time it took possession.

3. In 1881 the Second Avenue Passenger Railway Company was chartered, and authorized to construct a passenger railway from Market street in Pittsburg to Glenwood, a distance of five miles, passing along Second avenue. The movers in that enterprise had assurance from W. W. Patrick, president of the Pittsburg & Birmingham Passenger Railway Company, that they should have the use of the tracks on Second avenue, and on to Market street. The Second Avenue Passenger Railway Company completed some of its tracks beyond the Tenth street bridge, and, on January 1, 1883, began running its cars. Under a verbal agreement, without specifying for what length of time, between it and the Pittsburg & Birmingham Passenger Railway Company, it ran its cars on Second avenue, from Tenth street to Grant street, and on to Market street, on a monthly rental of $100, and so continued to run them until the agreement of November 9, 1891.

4. The Second Avenue Passenger Railway Company was chartered under the act of 1879, but, after that act was declared unconstitutional, it accepted the provisions of the act of May 14, 1889. After March 4, 1890, it used electricity instead of horse power.

5. The Pittsburg & Birmingham Traction Company was chartered in 1889, and had transferred to it all the stock of the Pittsburg & Birmingham Passenger Railway Company, and all the stock of the South Side Railroad Company, except the five shares above stated. On the 9th of November, 1891, that company of the one part entered into the following agreement with the Second Avenue Passenger Railway Company, of the second part.

"Whereas first party is owner of the right of way and tracks now laid over the following route in the city of Pittsburg, viz.: Beginning on Second avenue at a point opposite the north end of the Tenth street bridge; thence along Second avenue to Grant street; thence along Grant street to Third avenue; thence along Third avenue to Market street; thence along Market street to Fourth avenue; thence along Fourth avenue to Grant street; thence along Grant street to Second avenue; and thence along Second avenue to the said point opposite the north end of the Tenth street bridge. And whereas, second party is now running its cars over said tracks and right of way under a rental paid to first party and has, with the consent of said first party, erected its poles and trolley wires so that its cars can be and are run by electric power furnished from its power house on Second avenue near Brady street. And whereas, second party desires to secure the right to run perpetually its cars over said right of way without paying rent therefor except as hereinafter specified. And whereas, first party is willing to grant to second party such perpetual running right under the terms and conditions hereinafter mentioned. Therefore this agreement witnesseth: The said party of the first part, for and in consideration of the payments to be made, covenants to be performed and kept by the said second party, does hereby agree: First, that it will reconstruct said railway, along the route mentioned, so as to make it a substantial, first class railway, with a rail weighing not less than sixty-five pounds to the yard; said work of reconstruction to be done by contract, the work to be let to the lowest responsible bidder who shall be acceptable to the party of the second part, and the prices to be paid for said work to first have its approval. Second. The said first party will also keep and maintain the said road in good condition, and before the tenth of every month render an accurate account of all sums expended for labor and material in said maintenance, during the month previous, one-half of which cost shall be paid by each of said companies. Third. It will pay said second party one-half the cost of the poles, trolley wires and overhead equipment it has erected along said route, and hereafter second party will maintain and keep in order said poles, trolley wires and overhead equipment, and render an account monthly of said cost of maintenance to first party -- first party hereby agreeing to pay second party, on or before the fifteenth of each month, one-half of all sums it has expended during the previous month to keep and maintain said poles, trolley wires, and overhead equipment, in good order, as by the bills rendered.

"The said second party covenants and agrees that in consideration of the payments to be made by the first party, above mentioned, and in further consideration of the agreements made by said first party, for the use of its tracks, that it will -- first, pay to the said first party one-half the cost of reconstructing the track along said route, payments to be made monthly, on or before the fifteenth of each month, for all labor and material furnished on the contracts for doing such work during the month previous. Second. It will furnish all electric power to said trolley wires necessary to move the cars of said first party over said route, free of cost to said first party. Third. It covenants and agrees that it will not during the existence of this agreement extend its lines or make any contracts so that its cars can be run across the Monongahela river to any point reached by the lines of the first party within the corporate limits of Pittsburg. Nor will it make any agreement...