Speese v. Schuylkill River East Side Railroad Co.

• Decision Date: 24 February 1902
• Docket Number: 312
• Citation: 51 A. 316,201 Pa. 568
• Parties: Speese, Appellant, v. Schuylkill River East Side Railroad Company
• Court: Pennsylvania Supreme Court

51 A. 316

201 Pa. 568

Speese, Appellant, v. Schuylkill River East Side Railroad Company

No. 312

Supreme Court of Pennsylvania

February 24, 1902

Argued January 14, 1902

Appeal, No. 312, Jan. T., 1901, by plaintiff, from decree of C.P. No. 3, Phila. Co., June T., 1899, No. 1039, dismissing bill in equity in case of Andrews J. Speese v. Schuylkill River East Side Railroad Company and the Baltimore & Ohio Railroad Company. Affirmed.

Bill in equity for an injunction. Before McCARTHY, J.

The facts are fully stated in the opinion of the Supreme Court.

Error assigned was decree dismissing the bill.

The decree is affirmed and the appeal is dismissed at costs of appellant.

Henry N. Wessel and John G. Johnson, for appellant. -- If the owner of ground bisected by a railroad was entitled to use both overhead and grade crossings, he cannot forever be prevented from using both an overhead and grade crossing because he has surrendered the grade crossing, if at the time of surrendering he reserved to himself the right, upon giving certain notice, to restore, use, and enjoy the grade crossing, with all its rights, incidents, privileges, and appurtenances as they existed at the date of the execution of the contract, in the same manner and with the same force and effect as if the agreement had never been made. And in any event the owner cannot be prevented from erecting the overhead bridge: Struthers v. Clark, 30 Pa. 210; Edelman v. Yeakel, 27 Pa. 26; Ellis v Lane, 85 Pa. 265; Shafer v. Senseman, 125 Pa 310; Pittsburg Carbon Co. v. Phila. Co., 130 Pa. 438; Krumrine v. Grenoble, 165 Pa. 98; Matchette v. Colburn, 166 Pa. 265; Schuylkill Navigation Co. v. Moore, 2 Whart. 477; Saltsburg Gas Co. v. Saltsburg Borough, 138 Pa. 250.

A railroad company which has secured, by condemnation proceedings, a right of way for a roadbed, has not the exclusive use of all the space above its roadbed, as against the owner of property which is bisected by the railway: Pittsburg, etc., R.R. Co. v. Bruce, 102 Pa. 33; Lance's Appeal, 55 Pa. 16; Western Penna. R.R. Co. v. Johnston, 59 Pa. 290; Saxton v. Mitchell, 78 Pa. 479; Phila., etc., R.R. Co. v. Merkle, 10 Phila. 604; Allegheny v. Ohio, etc., R.R. Co., 26 Pa. 355; Searle v. Lackawanna, etc., R.R. Co., 33 Pa. 57; Penn Gas Coal Co. v. Versailles Fuel Gas Co., 131 Pa. 522; Wallace v. Jefferson Gas Co., 147 Pa. 205; Upper Ten Mile Plank Road Co. v. Braden, 172 Pa. 460; Chester, etc., R.R. Co. v. Standard Steel Casting Co., 6 Del. Co. Rep. 233; Sterling's App., 111 Pa. 35; Patterson v. Phila., etc., R.R. Co., 8 Pa. C.C. Rep. 186; Sutton v. Groll, 42 N.J. Eq. 213; 5 A. Repr. 901; Beacon v. Pittsburg, etc., R.R. Co., 1 Pa. Dist. Rep. 619; Kansas Central Ry. Co. v. Allen, 22 Kansas, 285.

Almost every state has passed laws preserving, as nearly as possible, the rights of owners of land bisected by a railroad to use the railroad company's right of way as a means of passage from one part of the land to the other, and under these acts the courts have held that he has a reasonable right to farm crossings at such places as the necessities of his business demands, provided such crossings and the use thereof will not unreasonably interfere with the use of the right of way by the railroad company: Chester R.R. Co. v. Steel Co., 6 Del. 233; Railroad Co. v. Kregelo, 32 Kan. 608; Railroad Co. v. Cosper, 42 Kan. 561; Railway Co. v. Rowland, 70 Tex. 298; 7 S.W. Repr. 718; Cement Co. v. R.R. Co., 130 N.Y. 152; 29 N.E. Repr. 121; Railroad Co. v. Willenborg, 117 Ill. 203; Wademan v. Railroad Co., 51 N.Y. 568; Henry v. R.R. Co., 2 Iowa, 288; Jones v. Seligman, 81 N.Y. 190; Beardsley v. Ry. Co., 142 N.Y. 173; 36 N.E. Repr. 887.

W. B. Linn, for appellee. -- A person who purchased a lot of ground, subject to the right of way of a railroad in full operation, and obtained by condemnation under the act of 1849, across which right of way the owner has a grade crossing in actual use connecting the two parts of his lot, is not entitled to a second crossing by means of a bridge over the right of way without obtaining the consent of the railroad company: Saxton v. Mitchell, 78 Pa. 479; Imp. Co.'s App., 54 Pa. 361; DeCamp v. R.R. Co., 47 N.J.L. 50; Pipe Line Co. v. R.R. Co., 62 N.J.L. 255; Struthers v. Ry. Co., 87 Pa. 282; Philadelphia v. Ward, 174 Pa. 45; Ramsden v. Ry. Co., 1 Exch. Rep. 623; Ry. Co. v. Peet, 152 Pa. 488; New York, etc., R.R. Co. v. Comstock, 60 Conn. 208; 22 A. Repr. 511.

The following decisions from other jurisdictions reach the conclusion for which appellee contends: C. & P.R.R. Co. v. Holton, 32 Vt. 43; T. & B.R.R. Co. v. Potter, 42 Vt. 265; Brainard v. Clapp et al., 10 Cush. 6; Presbry v. Old Colony Ry. Co., 103 Mass. 1; Peirce v. B. & L.R.R. Corporation, 141 Mass. 481; L.S., etc., R.R. Co. v. Greve, 17 Minn. 324; Railway Co. v. Combs, 51 Ark. 324; Henry v. R.R. Co., 2 Iowa, 288; Reichert v. Keller, 78 N.W. (Nebraska), 381; Paxton v. Yazoo, etc., R. Co., 24 So. Repr. (Miss.) 536; Wilmot v. Yazoo, etc., R. Co., 24 So. Repr. (Miss.) 701; Olive v. Sabine, etc., Ry. Co., 33 S.W. Repr. (Texas) 139; N.Y, etc., R. Co. v. Comstock, 60 Conn. 208; Hollingsworth v. Des Moines, etc., Ry. Co., 63 Ia. 444; Hayden v. Skillings, 78 Me. 413; 6 A. Repr. 830.

In any event the plaintiff is not entitled to two crossings, one at grade and one by bridge, under the contract executed by the plaintiff and defendants, dated July 9, 1900, taken in connection with the letter of abrogation from plaintiff to defendants, to which request defendants declined to accede.

Before McCOLLUM, C.J., MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

MR. JUSTICE DEAN:

The plaintiff is the owner of a lot of ground on the northeast corner of Twenty-seventh and South streets in Philadelphia, fronting on Twenty-seventh street 117 feet and extending to the Schuylkill river on the east bank, 570 feet. The property was conveyed to him by deed dated March 28, 1899, at which date it was already subject to right of way of the Schuylkill River East Side Railroad Company. The company had by proper proceedings in the court of common pleas in Philadelphia, as early as 1883, appropriated for railroad purposes, a strip bisecting the lot, sixty feet wide, and there had been awarded the then owner, one Frank K. Ward, damages therefor, so that this plaintiff took the land subject to all the rights which the railroad company acquired by an appropriation under the statute. The plaintiff purchased the lot for the purposes of a coal and wood yard. Prior to his purchase, there was a crossing over the railroad at grade, and communication between, and the use of the two parts of the bisected lot, were by this means kept up and the business of storing thereon, and selling therefrom, coal and wood was carried on. Such was the situation on July 9, 1900, at which date plaintiff and defendant companies entered into a written agreement, by which Speese agreed to relinquish his right of crossing at grade, and in consideration therefor, the railroad companies consented to an overhead crossing, by an iron bridge at a point designated on a map appended to the agreement. The bridge to be constructed on plans approved by the chief engineer of the Baltimore & Ohio Railroad Company and to be kept in repair by Speese. Then came this stipulation:

"3. In consideration of the grant of the right to erect said bridge the second party (Speese) for himself, his heirs and assigns, covenants that within thirty days from the date of this agreement he will cease to use the present grade crossing and doth hereby release and surrender unto the first parties all right which he or his heirs and assigns may have as owner or owners of the land hereinafter described to cross at grade the right of way of the Schuylkill River East Side Railroad, and doth agree for himself, his heirs and assigns, that the Schuylkill River East Side Railroad Company shall hold its right of way over the land hereinafter described free from any right to cross at grade which the second party or any one claiming land under him may have."

Then, this was followed by another stipulation as follows: "The party of the second part (Speese) his heirs and assigns . . . shall have the right at his, her or their own cost and expense to take down and remove the said overhead bridge and to resume, restore, use and enjoy the grade crossing with all its rights, incidents, privileges and appurtenances as they exist at the date of this contract upon giving sixty days' notice to the party of the first part of an intention so to remove said overhead bridge and to restore said grade crossing, in the same manner and with the same force and effect as if this agreement had never been made."

The plaintiff, however, continued to use and...