Spring City Borough v. Montgomery & Chester Electric Railway Co.
| Decision Date | 28 February 1908 |
| Docket Number | 19-1907 |
| Citation | 35 Pa.Super. 533 |
| Parties | Spring City Borough v. Montgomery & Chester Electric Railway Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 19, 1907 [Syllabus Matter] [Syllabus Matter]
Appeal by defendant, from decree of C.P. Chester Co., Equity Docket C.P. 34, No. 457, on a bill in equity in case of Spring City Borough v. Montgomery and Chester Electric Railway Company.
Bill in equity for an injunction to compel the completion of a street railway. Before Hemphill, P. J.
Hemphill, J., found the facts to be as follows:
The plaintiff seeks to enjoin the defendant from further operating its railway within the borough limits, because of its failure to complete its road within the time stipulated in an ordinance approved January 9, 1899, and accepted in writing by defendant company on April 25, 1899.
FINDINGS OF FACTS.
The plaintiff borough was duly incorporated under the acts of assembly and by decree of the court of quarter sessions of Chester county, made August 12, 1867, under the name of the borough of Springville, which, by decree of the same court, made December 17, 1872, was changed to the borough of Spring City.
The defendant company was duly incorporated under an act of assembly, May 14, 1889, entitled, " An Act to provide for the incorporation and government of street railway companies in this commonwealth," and its supplements.
In compliance with the requirements of the constitution and laws of this commonwealth the defendant sought permission of the plaintiff to construct and operate its road within the limits of said borough, which was granted by an ordinance approved January 9, 1899, and duly accepted by said company.
The eleventh section of said ordinance provided as follows:
In compliance with said ordinance said company on February 2, 1899, duly executed its bond for $ 2,500 with the Real Estate Trust Company as surety and filed the same with plaintiff, and later commenced the construction of its road within said borough.
As originally planned and chartered, this road was to run from Phoenixville, Chester county, to Pottstown, Montgomery county, but upon the request of the defendant company the town council of the borough of Spring City on June 5, 1899, consented to the abandonment of that part of the road extending from Pottstown to the south bank of the Schuylkill river.
That part of the route, from the south side of the Schuylkill river on Bridge street to the railroad siding of the Schuylkill division of the Pennsylvania railroad on Main street in said borough, has never been completed or operated by the defendant company; nor has it ever been released or relieved from the completion and operation of the same by the council of said borough. There were some negotiations between the parties looking to an agreement by which the company should be relieved from the construction and operation of its road over the route last described upon its paving in lieu thereof certain streets of the borough, but it was never consummated.
CONCLUSIONS OF LAW.
Under the facts above found the question presented is:
Is the plaintiff entitled to an injunction restraining the defendant from operating any portion of its road within the limits of the borough by reason of its failure to comply with all the requirements of sec. 11 of the ordinance of January 9, 1899?
It has been well settled by numerous decisions in this state that where a municipality grants the use of its streets to a street railway company upon certain expressed conditions, that they must be complied with or upon failure to comply the company may be restrained from the exercise and enjoyment of the franchise granted.
And it has been held that though the real purpose of a bill of injunction be not to enforce the conditions of the contract, though so alleged, it will not relieve the company from compliance with the conditions under which it accepted and obtained its franchise: Conshohocken Borough v. Conshohocken Railway Company, 206 Pa. 75.
This case is directly in point and in our opinion rules the one under consideration; and the citation of additional authorities is therefore unnecessary.
Following the precedent established in the case cited we make this order:
And now, to wit: September 17, 1906, the bill filed in this case will be dismissed if the Montgomery and Chester Electric Railway Company shall within sixty days from the filing of this opinion and order complete the construction and begin the operation of its road over the route described in the ordinance of January 9, 1899, between the south bank of the Schuylkill river at Bridge street and the railroad siding of the Schuylkill division of the Pennsylvania Railroad on Main street in the borough of Spring City; otherwise an injunction will be awarded as prayed for in said bill.
Error assigned was the decree of the court.
H. H. Gilkyson, with him J. Frank E. Hause, for appellant. -- Impossibility of performance is a bar: Allegheny City v. Ry. Co., 159 Pa. 411; Keystone State Tel., etc., Co. v. Ridley Park Boro., 28 Pa.Super. 635; Millcreek Twp. v. Erie St. Ry. Co., 216 Pa. 132.
Plaintiff is estopped by its laches and acquiescence: Duffield v. Hue, 129 Pa. 94; Com. v. Turnpike Co., 153 Pa. 47; Becker v. Ry. Co., 188 Pa. 484; Wenger v. Rohrer, 3 Pa.Super. 596; Com. v. Railroad Co., 23 Pa.Super. 235; Penna. R. R. Co. v. Traction Co., 25 Pa.Super. 115; Heilman v. Railway Co., 180 Pa. 627; In re Melon Street, 192 Pa. 331; Hinnershitz v. Traction Co., 199 Pa. 3; Taylor v. Railway Co., 212 Pa. 487; Bridgewater Boro. v. Traction Co., 214 Pa. 343.
The purpose and object of the bill is to compel the railway company to pave certain streets.
A court of equity will not interfere if the bargain is hard or unconscionable, or the terms unequal, or the complainant is seeking an undue advantage. Equity never aids in enforcing a forfeiture, especially when the contract has been substantially carried out, and its literal fulfillment prevented by uncontrollable circumstances: Oil Creek R. R. Co. v. A. & Great Western R. R. Co., 57 Pa. 65; Wistar's Appeal, 80 Pa. 484; Helme v. Philadelphia Life Ins. Co., 61 Pa. 107.
Alfred P. Reid, with him Charles S. Wagoner, for appellee. -- The condition in the ordinance to fully complete, and have in operation, its railway within one year was a condition precedent, and no impossibility of performance will avoid the bar of the condition imposed: Allegheny v. Millville, etc., St. Ry. Co., 159 Pa. 411; Minersville Borough v. Ry. Co., 205 Pa. 394; Keystone State Telephone, etc., Co. v. Ridley Park Boro., 28 Pa.Super. 635.
The appellee is not estopped from revoking its consent in accordance with the terms of the ordinance: Jones v. Weir, 217 Pa. 321; Plymouth Twp. v. Ry. Co., 168 Pa. 181; Minersville Borough v. Ry. Co., 203 Pa. 394; Menendez v. Holt, 128 U.S. 514 (9 S.Ct. 143); Galway v. Ry. Co., 128 N.Y. 132 (28 N.E. 479); Hartupee v. Pittsburg, 97 Pa. 107.
The order of the court, requiring the appellant to comply with its contract to build the road within sixty days, otherwise an injunction would issue as prayed for, was a proper and legal one: Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 75.
Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
The defendant derives its right to occupy certain streets in the borough of Spring City from an ordinance adopted January 9 1899. The second section of the ordinance authorizes the company to construct a single track on Bridge street from the Schuylkill river to Main street, thence on Main street to Walnut street, thence on Walnut street to the south borough line on the Phoenixville road. In the eleventh section it is stipulated that the franchises and privileges granted shall be exercised and the construction of the railway fully completed and in operation within one year from the approval of the ordinance. The same section contains the further provision that on failure to complete and fully operate said road within the time specified all the franchises and privileges granted shall be null and void and the borough is authorized to tear up the track and recover the cost of so doing on a bond to be given by the company in the sum of $ 2,500, conditioned that it complete and fully operate its road within the borough limits in one year from the approval of the ordinance. It was the original plan of the company under its charter to construct its road from Phoenixville, Chester county, to Pottstown, Montgomery county, but an application was made by the defendant to the council of...
To continue reading
Request your trial