Hinchman v. Phila. & West Chester Turnpike Road ( 1894 )

Opinion by

Mb,. Justice Green,

By the act of March 15, 1865, P. L. 356, the defendant corporation was expressly authorized and empowered to purchase the road, property and franchises of the Delaware County Passenger Railroad Company at any judicial sale thereof to be thereafter had. The act declared that the said turnpike road company should thereupon become and be the absolute owners of said road, property and franchises, and invested with the like powers, privileges and immunities, and subject to the same restrictions and conditions as the passenger railroad company was, before such sale, invested with and subject to. The act further provided, “ That the said turnpike road company may remove the tracks and superstructure of said railroad and dispose of the materials thereof, and of the other property so purchased upon condition, however, that they shall, within three months after the removal of any part of said track and superstructure, restore that part of their road to as good order and condition for public travel as the same was in before said railroad track was laid.”

It is alleged in the bill in this case that the road, property and franchises of the passenger railroad company were duly sold under a mortgage thereon, and were purchased by the turnpike company under the authority of the act of 1865, and that subsequently the turnpike company sold the cars, horses and harness purchased from the passenger railroad company, and also the rails and other iron lately belonging to the passenger railroad company. No complaint is made that the turnpike company did not place its road in as good condition for use as it was before the passenger railroad was built. In 1893 the turnpike company resolved to rebuild the railroad, and this bill is filed for an injunction to prevent them from so doing, on the ground that the franchise to build a passenger railroad was forfeited by nonuser.

The passenger road was built and run on the turnpike road. It is fair to assume, though unimportant to this contention, that, having proved unremunerative, it was abandoned in 1865, but its franchises were preserved by the legislation above referred to. The act of 1865 imposed no restrictions or limitations upon a re-exercise of those franchises. On the contrary it expressly authorized those things to be done which, ordinarily, would be regarded as evidence of an intention to abandon. When therefore the turnpike company sold the cars, horses, harness, rails and iron formerly belonging to the railroad company, they did so in pursuance of an express legislative authority, and incurred thereby no implication of abandonment or other disability as to the future exercise of their franchise. It follows that when the turnpike company now desires to re-exercise the franchise of the railroad company, which belongs to it by a lawful and unrestricted purchase, it cannot be held to be subject to an implication of abandonment and therefore of forfeiture, resulting from a long continued non-exercise of the franchise. Such non-exercise, being a necessary, and therefore an intended, result of the authorized sale of the. cars, horses, harness, rails and other iron of the railroad company, and the removal of the tracks and superstructure of the railroad, also authorized by the act of 1865, cannot possibly be a cause of forfeiture. Notwithstanding these acts thus legitimated, the franchise of the railroad continued, and was simply suspended during its period of non-exercise, and may therefore be resumed at pleasure. The right to acquire the franchise, and the concurring right to sell the appliances and remove the tracks of the railroad company, being conferred by the same act of legislation, cannot be held to be inconsistent with each other, and therefore may coexist without any hostile implication. In this essential feature the present case differs from all the cases of forfeiture arising from disuse of the corporate franchise. The decisions in those cases are therefore inapplicable to the present. The nineteenth section of the act of 1849 has no application, first, because this company was not incorporated under that act, and, secondly, because it has express legislative authority to do the very things which are set up as the cause of forfeiture.

We also fully agree with the learned court below that no charter to a corporation for public purposes can be forfeited except by the commonwealth in a proceeding for that direct purpose : Com. v. Allegheny Bridge Co., 20 Pa. 185, and many other cases.

Judgment affirmed.