North. Cent. Ry. Co. v. Holland , 20 W.N.C. 428 ( 1888 )

Opinion,

Me. Justice Steeeett:

This action of trespass on the case against the Northern Central Railway Company was brought by plaintiff below to recover damages for injuries to his property on South Water street, in the borough of York, caused by the enlargement'of the company’s roadway and works at that point in 1883.

The proof of title was quite sufficient to warrant the conclusion that the premises, alleged to have been injured, were owned and occupied by plaintiff at the time the company widened its roa,dway and enlarged its track capacity. It is unnecessary to review the evidence on that subject, for the reason that it is. fully presented in the general charge. For the same reason, it is unnecessary to notice specially the evidence showing location of the property, means of ingress and egress to and from Water street, facilities for light, air, etc., before and after the enlargement, and the effect of the change on the market value of the property. The evidence on all these subjects was rightly received and properly submitted to the jury. It tended to show, among other things, that in August, 1883, the railway company, without the consent of the borough authorities, or any authority whatever, entered upon the triangular piece of ground between the roadway and plaintiff’s dwelling house, cut away and removed part of the porch in front thereof, and there laid down a new railroad track, about seven feet nearer the house than the old track, was located; that the approach to the house was thereby rendered difficult and dangerous, and, at times, impassable; that south-bound trains afterwards passed within a foot of the warehouse adjoining plaintiff’s property, and within a few inches of the porch and gate-way; that in consequence of the closer proximity of passing trains to the house, the walls thereof were shaken, the house itself filled with smoke, cinders, and offensive smells, necessitating the closing of the front .windows and door.

The evidence, thus briefly adverted to, was fairly submitted to the jury, and, if believed by them, as it appears to have been, fully warranted the rendition of a verdict which should not be disturbed unless some radical error was committed by the court during the progress of the trial.

It is claimed that a recovery of damages should not have been permitted in the present form of action; but in view of the facts disclosed by the evidence, and doubtless found by the jury, that position is wholly untenable. For injuries, such as are complained of in this case, an action of trespass on the case will undoubtedly lie: Penn. R. Co. v. Duncan, 111 Pa. 352. In holding that trespass on the case could be maintained there was no error.

The main contention is that the learned judge erred in deciding the company was liable in damages for consequential injuries under section 8, of article XVI., of the constitution and we are reminded that, under the Dartmouth College case, “ its charter must be regarded in the light of a contract, and is in all particulars inviolable, unless in the charter itself or in some general or special law, subject to which it is taken, there is a power reserved to the general assembly to alter or amend,” etc.

Conceding, for the sake of argument, that the respective charters of the original companies, which, by consolidation, formed the Northern Central Railway Company, might possibly exempt them from such liability, it is not so in regard to the charter of the latter company. The consolidation act of May 3, 1854, P. L. 537, to which it owes its corporate existence, subjects it to the power of the general assembly. That act, consolidating the York and Maryland Line Railroad Company, the York and Cumberland Railroad Company, and the Susquehanna Railroad Company, so as to form and constitute one company or corporation, to be known as the Northern Central Railway Company, provides, in the 4th article of the 1st section thereof, that the consolidated company shall be subject to all the provisions of the act of February 19, 1849, P. L. 79. The 20th section of the latter act declares: “That if any company, incorporated as aforesaid, shall at any time misuse or abuse any of the privileges granted by this act of incorporation, the legislature may revoke all and singular the privileges so granted to such company. And the legislature hereby reserves the power to resume, alter, or amend any charter granted under this act, and take for public use any road constructed in pursuance of such charter.” This clause, which is virtually ‘ part of the charter of the Northern Central Railway Company, is comprehensive and not of doubtful import. It contains a clear and explicit reservation of power “ to resume, alter, or amend ” any charter granted under it or accepted subject to its provisions. The power thus reserved may of course be exercised by the people in their sovereign capacity. This was done when they adopted the present constitution, the 8th section of the 16th article of which ordains that “ municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property, taken, injured, or destroyed by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.”

There is nothing in the act consolidating the three constituent companies that exempts the present company from the provisions of the act of 1849, or from the constitutional provision above quoted. • On the contrary the latter was evidently intended to embrace just such cases as the one now under con-. sideration; and, we have no doubt, the plaintiff in error is justly subject to its provisions.

Neither of the specifications of error is sustained.

Judgment is affirmed.