Stewart's Appeal

• Citation: 56 Pa. 413
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 07 January 1868
• Parties: Stewart and Foltz's Appeal.

56 Pa. 413

Stewart and Foltz's Appeal.

Supreme Court of Pennsylvania.

November 20, 1867.

January 7, 1868.

November 20th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Appeal from the decree of the Court of Common Pleas of Lawrence county. In Equity. No. 151, to October and November Term 1867.

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L. Taylor, for appellants, cited Brightly's Eq. pp. 246 to 252; 2 Story's Eq. §§ 925, 926, 927; Commonwealth v. Pittsburg & Connellsville Railroad Co., 12 Harris 159; Bonaparte v. Camden & Amboy Railroad Co., 1 Bald. 222; Pittsburg v. Scott, 1 Barr 314; Sandford v. Railroad Co., 12 Harris 380.

E. B. & E. T. Kurtz, for appellees, cited Brightly's Eq. §§ 289, 720; 2 Danl. Ch. Pl. & Pr. 840, 843, 847, 848; 3 Greenl. Ev. § 284-5; Pusey v. Wright, 7 Casey 387; Eberly v. Groff, 9 Harris 251; Commonwealth v. Rush, 2 Id. 195; Borough of Frankford v. Lenning, 1 Am. Law Reg. 357; Biddle v. Ash, 2 Ashmead 211; Rhea v. Forsyth, 1 Wright 507; Grey v. Ohio & Penna. Railroad Co., 1 Grant 412; Bell v. Ohio & Penna. Railroad Co., 1 Casey 161; St. Helen's Smelting Co. v. Tipping, 5 Am. Law Reg. (N. S.) 108; Mechling v. Kittanning Bridge Co., 1 Grant 416; Buck Mt. Coal Co., 14 Wright 99; Reading v. Commonwealth, 1 Jones 196; Angell & Ames on Corp. 777 and notes; Commonwealth v. Del. & Hudson Canal Co., 7 Wright 295; Plymouth Railroad Co. v. Colwell, 3 Id. 341; Turnpike Co. v. McConaby, 16 S. & R. 144; Pott's Appeal, 5 Barr 500; Martin v. Ives, 17 S. & R. 364; Mayor v. Commissioners, 7 Barr 365.

The opinion of the court was delivered, January 7th 1868, by THOMPSON, C. J.

It cannot be doubted that if the defendant, in this bill, was not fully invested with authority to do the acts complained of by the plaintiffs, he has created an intolerable nuisance as regards their property, of which they have good reason to complain, and for which they ought to have redress in some way. Impliedly conceding this, the defendant attempts to justify, under the authority of the Commonwealth, not by express grant, but by a delegation of authority from a company incorporated to build a railroad for public and general use, under the provisions of the Act of 19th February 1849. This company was incorporated by an Act of Assembly, passed the 25th of March 1864, under and by the name and style of "The New Castle and Franklin Railroad Company," authorized to build a road from New Castle, in the county of Lawrence, to the town of Franklin, in the county of Venango, a distance of about 48 miles. The authorized capital stock was to be $150,000, with the privilege of increasing it to the extent of $600,000. Shortly after the passage of the act, the company organized, and procured a preliminary survey of the line, but made no definite location then nor since. The capital stock was but partially subscribed for, and between three and four thousand dollars only, paid into the treasury. No work whatever has ever been done by the company towards building the road. All that has been done was by the defendant, if it may be regarded as work done on the road at all.

Whatever location the company had in the town of New Castle had been made eighteen months or so prior to the 3d of April 1866, the time at which the defendant's alleged right assumed a definite shape, and was not in and along the alley and by the premises of the complainant, but, as we understand, entirely elsewhere. Prior to that date the defendant was owner of a tract of mineral, or coal lands near New Castle, and was desirous of obtaining railroad facilities for bringing his coal into town, and in his answer he alleges that he was about to construct a private road beginning near his land, when he learned that his contemplated line would lie foul of the company's. What authority he had under which to construct a road we are not informed, or that he had any. But he further states that, in January 1866 he made an agreement with the New Castle and Franklin Railroad Company, which was reduced to writing on the 3d of April 1866, by which he undertook to build for the company two miles or thereabouts of road, "commencing in New Castle, thence up the Neshannock creek, opposite Pyle's run, on the line of their road," and to grade the same suitable for the New Castle and Franklin Railroad, as regards alignment and grades, except the iron and road bed; the work to be according to the plans and specifications of the chief engineer. Embankments to be eight feet in width, and cuttings ten; cross-ties to be six by eight inches; to put on such rails, chairs and spikes as might suit his own use and purposes, and to run his own locomotives and cars on the track thus to be made for his own exclusive use and benefit, until such time as the company might need the possession of the same, which it could take by paying for the cost of construction, right of way, &c., &c., excepting the iron, one-half cash, and one-half in the stock of the company. The rate of speed of running the road when built to be regulated by the company, which, I presume, it was not thought worth while doing, as we see no account of it in the minutes of the board.

On the day this contract was entered into, the location previously made, was changed to the place complained of; a new location was made by the engineer of the company, although he testifies that he was not in the employ of the company after the 3d of April, the date of the contract; and he did it at the request of the defendant, who, he thinks, is resposible to him for the engineering. He is under the impression that some of the directors, or perhaps the president, spoke to him about making and staking out the location, but cannot tell who or which; that in laying out the ground along the alley, he did not fix any definite width for the road bed, but only so much as should be necessary for the road along the alley; he never made any report of the new location to the company, and at the close of his testimony on the part of the defence, he discloses the following: "I agreed to do it (the engineering) in my individual capacity, and not as engineer of the Franklin Company." Speaking of the road as constructed, he says, "the rails are very light, about twenty-two pounds to the yard." We learn, however, that they have been recently changed to a weight of about thirty-three pounds. The gauge is three and a half feet wide. "The road," he says, "is used by James Rhodes, for supplying his mill with coal. He has a little engine and a lot of coal-cars, and thus brings coal down from the coal bank. This railroad is not used or operated for any other purpose except for transporting coal by Rhodes from his bank" to his works in town.

Under these proceedings, in regard to location and the contract in question, an application was made in the name of the New Castle and Franklin Railroad Company for the appointment of viewers, under the Act of 1849, to assess the damages which were likely to ensue after comparing the advantages to the owners of property by the construction of the New Castle and Franklin Railroad, on a distance of about 680 feet of the 48 miles of road to be made. Bonds were prepared to secure damages to the several owners on this territory, and approved by the court, but no viewers were appointed, that we can discover. Whereupon the defendant, upon a given day mentioned, 7th of May 1864, graded, built and constructed the road along the alley in question, and how much further we are not informed, putting rails of the size just mentioned on a track of three and a half feet in width, and grading the road-bed of the width of about five feet. The engineer, in his testimony, declares that he does not know of...