Zook v. Pennsylvania R. Co.

• Decision Date: 09 July 1903
• Docket Number: 130
• Citation: 56 A. 82,206 Pa. 603
• Parties: Zook v. Pennsylvania Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

56 A. 82

206 Pa. 603

Zook v. Pennsylvania Railroad Co., Appellant

No. 130

Supreme Court of Pennsylvania

July 9, 1903

Argued May 20, 1903

Appeal, No. 130, Jan. T., 1903, by defendants, from decree of C.P. Lancaster Co., Equity Docket No. 4, page 3, on bill in equity in suit of Emma Zook v. The Pennsylvania Railroad Company and G. Sener & Sons, W. Z. Sener and J. Fred. Sener. Affirmed.

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

The court found the facts to be as follows:

While the facts of this case, as brought out upon the final hearing, differ in only a few respects from those which were ascertained by us upon the hearing of the motion to dissolve the preliminary injunction, yet, as this is the final hearing, we are bound, under the equity rules, to again specifically find them, so that the case may be intelligently presented for review.

It is not denied that Mrs. Zook, the plaintiff, is a resident of the city of Lancaster, and that she owns a tract of land with warehouses and storehouses erected thereon, located on the north side of a public street in the said city, known as Harrisburg avenue, near its junction with North Mulberry street. These buildings are used for the packing and storing of tobacco. The tracks of the Quarryville branch of the Columbia and Reading railway have been laid upon North Mulberry street, between James street and Harrisburg avenue and thence, crossing northward over Harrisburg avenue, run a short distance to the west of the buildings of the plaintiff to meet the tracks of the main line of the Columbia and Reading railway, which lie farther to the north. Formerly, these tracks were laid in accordance with the provisions of the charter of the Lancaster and Narrow Gauge Railroad Company, at grade; but several years ago the Pennsylvania Railroad Company raised its bridge at the place where its main line crosses under North Mulberry street, and, because of this change, it, at the same time, raised the tracks of the Quarryville road for a distance of at least seventy-five feet on each side. Subsequently the tracks of the Quarryville road were also raised at Harrisburg avenue, and they are now at that place from nine to ten inches above the grade of the street. There was no authority given by the city of Lancaster for the making of any such changes as these, and, as we shall hereafter ascertain, it is extremely doubtful whether such authority could have been given. But no action, however, has been taken on the part of the city to re-establish the former condition.

The main tracks of the Pennsylvania Railroad Company, which is a corporation incorporated under the laws of the state of Pennsylvania and doing business and owning and operating railroad tracks and sidings, lie to the westward. G. Sener & Sons, the defendants, who are a firm composed of William Z. Sener, J. Fred. Sener and others, are engaged in the coal and lumber business in this city. They have purchased a tract of land immediately to the east of the plaintiff's property, and they now propose to run a siding from the tracks of the Pennsylvania Railroad Company along Harrisburg avenue to their own property. It will thus be observed that the plaintiff's property lies between the main line of the Pennsylvania Railroad Company and the property of G. Sener & Sons.

Some years ago the Pennsylvania Railroad Company ran a siding from its main tracks eastward along Harrisburg avenue over ground where a pavement has since been laid, along the south side of that street, to a frame building, which is now said to be used by its employees as a carpenter shop. This siding extends up to a point from about 100 to 130 feet of the Quarryville railroad tracks. Some time after it was put down by the Pennsylvania Railroad Company that company pushed it out into the street on Harrisburg avenue, filled in with dirt the place where it formerly was, and then laid a pavement at that place. It is now proposed by G. Sener & Sons to extend that siding further along Harrisburg avenue, longitudinally, eastward, and to cross, diagonally, from the south side of that street to the north side, and across the tracks of the Quarryville branch of the Columbia and Reading railway, in front of the plaintiff's property, thence continuing along Harrisburg avenue, and crossing the gutter on the north side of that street, about fifty feet east of the Zook property, and in upon their own premises. The effect of this will be that the tracks of the siding will run about twelve feet from the curb line of the street before the Zook property, and they will be raised to the same height as those of the Quarryville branch of the Columbia and Reading railway, which, as we have before said, are now between nine and ten inches above grade; to be strictly accurate they are, according to actual measurement, nine and five eighths inches above grade, and the fall from the tracks to the bottom of the gutter will be thirteen and one fourth inches.

Prior to the commencement of the work now complained of, an ordinance was adopted by the city councils of the city of Lancaster, and approved by the mayor, whereby the said G. Sener & Sons were given the right and privilege to lay a siding railroad track on Harrisburg avenue to connect with the main line of the Pennsylvania Railroad Company at a point on the south side of the said Harrisburg avenue, and to extend eastward on the siding now on the south side of Harrisburg avenue and across said Harrisburg avenue at Mulberry street into their property fronting on said Harrisburg avenue and arrived at said point in said public road, near Maysville Park Prince street; provided that the said work should be done under the supervision of the street committee. There was, however, nothing contained in the ordinance whereby the defendants were permitted to lay the track above the grade of the street. In pursuance of authority claimed by them under the said ordinance, the said G. Sener & Sons made an arrangement with the Pennsylvania Railroad Company by which it should do the work of laying the siding for them. Near daybreak, on the morning of June 3, 1902, about seventy-five men, employees of the Pennsylvania Railroad Company, under the direction of Mr. Wiseman, the supervisor of said company, began to lay the said siding above the grade of the street, and had it completed to a considerable extent, the frog being placed at its junction with the Quarryville branch, and the ties being laid, but the dirt and ballast not being yet filled in, when they were stopped by the injunction granted in pursuance of this bill.

There is no doubt that the tracks, as thus laid, will be above the grade of the street, and it has been shown by a preponderance of proof -- and we, therefore, find it as a fact -- that the effect of this will be to render it difficult, if not impossible, for the plaintiff to have access to her property from Harrisburg avenue if this change is made, especially so with large teams, and that the entrance and exit to and from the building and the use of it will be incumbered and hindered. In addition it has also been shown that, since the shedding has been erected upon the Sener property, a larger amount of water collects on Harrisburg avenue, and that this water drains upon her property in larger quantities than it formerly did before any such change was made, and that, if the track is completed as proposed, the Zook property will be, to a more or less extent, damaged by reason of water draining thereon in larger quantities than before. The water naturally drains to the northwest, and the change will cause an undue diversion of it.

It is said by Mr. J. Fred. Sener that it was not the intention of...