Junction Railroad v. City of Philadelphia , 1879 Pa. LEXIS 71 ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This case is ruled by The City of Philadelphia v. The Philadelphia, Wilmington and Baltimore Railroad Co., 9 Casey 41. It was there held that the city cannot support a claim for paving, against the road-bed of a railroad. An attempt was made to distinguish the cases, upon the ground that the plaintiff in error owned the road-bed in foe, whilst in the case cited the company had only a right of way over it. We are unable to see any substantial distinction. The right of way acquired by a railroad company is exclusive at all times and for all purposes: Railroad Co. v. Norton, 12 Harris 465; Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F. Smith 366. Moreover it is perpetual. For the purpose, therefore, of filing municipal claims for paving against the road-bed of a railroad company the distinction between the right of way and the fee is a shadowy one. While the fact that the company did not own the fee was referred to in the case in 9 Casey, it was not the only or the main reason for affirming the judgment. It was there held that the claim had “no foundation either in the letter of the law or in its spirit, nor in the form of the remedy;” that the paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving,-while all the rest of the neighborhood may, it is not to be presumed that the compulsion was intended to be applied to such companies. A scire facias upon a claim of this kind is a proceeding in rem. It is averred in the affidavit of defence “that the premises described in the claim filed in the above-entitled case constitutes a section of the roadway of this company, being a strip of ground sixty feet in width, extending northwardly from Girard avenue, and used exclusively for railroad purposes.” Upon a judgment recovered upon this claim it is plain that no portion of the ground could be sold other than that above described, nor is it claimed that the city could do more than sell the fee in the sixty feet subject to the easement or right of way of the company. The contention is that the company, being the owner of the fee, the fee may be sold subject to the easement. But eui bono ? Such proceeding would be a vain thing. The fee is absolutely worthless subject to the easement. But as before observed it is entirely immaterial whether or not the company is the owner of the fee. In the City of Philadelphia v. Eastwick, 11 Casey 75, the city filed two liens, one against the railroad company for the paving done along its track, and the other against the owner of the fee. Having failed, as we have seen (City of Philadelphia v. Philadelphia, Wilmington and Baltimore Railroad Co., supra), to sustain its claim against the company, the city attempted to enforce it against the owner of the fee, in which it was also unsuccessful. The attempt to lien the road-bed failed, both as to the company holding the mere right of way, and the owner of the fee. The Junction Railroad is a connecting link between three of our leading lines of railroad. It is a public highway of more than ordinary importance. “It would be strange legislation,” says Lowrie, J., in The City v. The Railroad Company, supra, “that would authorize the soil of one public road to be taxed in order to raise funds to make or improve a neighboring one.”

The learned judge of the court below placed his decision partly upon the ground that a portion of the land was in excess of the amount required for the easement. We find no such statement or admission in the affidavit of defence, and we cannot go outside of it. On the contrary, it is expressly averred that the ground in controversy is a section of the roadway of the company, and is used exclusively for railroad purposes.

I have confined the discussion of this case to the matter of the roadbed. The question of the liability of other real estate of such corporations, such as depots, offices, shops, and the like, to taxation and municipal assessments, is not raised by this record.

Judgment reversed, and a procedendo awarded.