Pennsylvania Railroad v. Greensburg, Jeannette & Pittsburg Street Railway Co. , 176 Pa. 559 ( 1896 )

Opinion by

Mr. Justice Mitchell,

These cases depending upon substantially the same facts and the same principles of law and having been argued together, may be treated practically as one case for the purposes of this opinion.

The Pennsylvania Railroad Company, complainant and appellant, has failed to make out title to the bridge in question over its right of way. Though constructed and paid for by it the contract with the borough of Greensburg shows that it was so constructed as a part of the public highway, Pennsylvania avenue, and to be maintained as such by the borough. The only open point in the contract was the alternative to the borough that it should in consideration of such erection cause the grade crossing over the railroad at Plarrison avenue to be vacated, or failing to do so, should pay the railroad the cost of the bridge. To which alternative the borough is liable does not concern this litigation. In either case the bridge became part of Pennsylvania avenue and the title is in the borough.

The next question is whether Clay avenue extension is a public highway, in such sense as to permit the defendants, in the absence of any right of eminent domain, to cross the sidings of appellant thereon. This is a question mainly of fact, and has been so fully examined by the learned judge below that nothing more heed be said than that we see no reason to question the correctness of the conclusion reached by him.

There remain the two really important questions in the case, first, whether the defendant companies have any right to construct or operate railways along the routes or portions of routes in controversy, and secondly whether the appellant is in position to raise the question of such right.

It is strenuously contended on the part of appellant that the act of May 14,1889, P. L. 211, under which the defendants were chartered, gives no authority for the building of a passenger railway through boroughs, or over township or country roads, and especially through private property, but only upon streets, properly and strictly so called. Much reliance is placed upon Penna. R. R. Co. v. Montgomery Co. Ry. Co., 167 Pa. 62, to sustain this contention. But no such point was involved nor any such decision made in that case. On the contrary, while that proposition if sustained would at once and finally have disposed of the claims of the defendant passenger railway company to its asserted franchise, the decision was pointedly rested upon other grounds. The same may be said of the group of cases decided at the same time, Lehigh Nav. Co. v. Inter County Ry. Co., 167 Pa. 75; Rahn Township v. Ry. Co., 167 Pa. 84, and Tamaqua Street Ry. Co. v. Inter County Ry. Co., 167 Pa. 91; and of Homestead Street Ry. Co. v. Electric Ry. Co., 166 Pa. 162, and some other eases not necessary to refer to in detail. What Penna. R. R. Co. v. Montgomery Co. Ry. Co. really decides and is authority for is first that the laying of railway tracks on a suburban road is an additional servitude which cannot be imposed upon the owner of the fee against his will by the mere consent of the township authorities ; and secondly that the franchise of a street railway passing through several localities is an entirety, and the necessary local or municipal consent for the whole route must be obtained, before it has a right to build any part. In the opinion in that case, and again in Rahn Township v. Ry. Co., supra, our Brother Williams reviewed the legislation-on street passenger railways, and gave some timely warnings to investors and to the other departments of the government as to the dangers of the investment of capital in lines not within the express authorization of the act of 1889, and the necessity of further legislation on the subject, in view of the numerous and extended enterprises of the kind in operation or in progress. But the decisions were rested on the propositions above set forth. While no case has yet called for an exact definition of the words “ street or highway ” in the act of 1889, or of the limitations in that respect on railways incorporated under that act, it is manifest that the narrow interpretation contended for by appellant cannot be sustained.

It is not necessary to go further in this case, as upon the next question we are of opinion that the appellant is not in position to dispute appellee’s rights. The charter covers the route upon which the road is built, and the learned judge below has found that the appellee has the consent of the local authorities, of all the owners of property along the roads occupied and of those through whose property its line passes. To entitle appellant to question the prima facie right thus appearing it must show some interest in, or damage to itself, different from that of the general public. It has failed to do so. It is not the owner of the bridge, and the crossing over its right of way is upon a public highway, to all the rightful uses of which its property is subject. The bridge is part of the highway, and the consent of the borough authorities for the laying of the rails must be as effective on it as on any other part, or the borough would hold its municipal power to consent only in subordination to the will of every railroad which the highway happened to cross. The 18th section of the act of 1889 gives in express terms the right to cross railroads at grade, and a fortiori to cross overhead. In respect to a mere crossing, a railroad is not an abutting landholder to the passenger railway, as the plaintiff was in Penna. R. R. Co. v. Montgomery Co. Ry. Co., supra.

As to the objections to the appellee’s route at other points, including the right to occupy township roads, and to buy or secure with the owner’s consent a way through private property, the appellant’s rights are no different in kind whatever they may be in degree from those of the general public. In regard to the latter objection, it is conceded, as was said in Rahn Township v. Ry. Co., 167 Pa. 84, 90, that passenger railways under the act of 1889 “may diverge for a short distance where the conformation of the surface or the positions of streams make it necessary in order to avoid discomfort or danger to the traveling public,” and it may be added to avoid grade crossings, or for any other reason amounting to necessity, or what is the same thing in such matters, great public convenience. The occasion'for such divergence and its extent are questions of location, and the decision of them primarily is within the discretion of the railway company. If the variance from the charter route is greater than is necessary, or the charter route itself is open to objection, the commonwealth alone can be heard to make it in the interest of the general public.

The act of June 19, 1871, P. L. 1361, affords appellant no standing. No rights of appellant are violated or infringed upon. It is not prevented or interfered with in doing any act that its charter permits. That its interests are affected by a diminution of its passenger traffic is a different thing. It has no monopoly of that traffic, which it holds only by force of superior facilities and convenience to the public, and like any other business, it must take the chances of rivalry and change of methods and customs of travel. The act of 1871 applies to direct interference with rights, not consequential injury to interests, and the inquiry under it is limited in suits by private parties to the question of the charter right to do the act complained of. West. Pa. R. R.’s Appeal, 104 Pa. 399. In Germantown Pass. Ry. Co. v. Citizens’ Ry. Co., 151 Pa. 138, cited by appellant, the complainant had a track on German-town avenue, and its claim to relief was based on the fact that another track on the same street would interfere with its operations.

The appellant did establish one point in which its rights were different from those of the public. The special danger to it and its passengers arising from the use of the bridge for a purpose for which it was not originally built gave appellant a standing to object to such use. It has a clear right to be protected from that danger. When this case was before some of the justices of this court at chambers on motion for special supersedeas, it was said in denying the motion, that the language of the decree below was not as precise as was desirable, and while it did not probably mean to leave the proper strengthening of the bridge to the uncontrolled discretion of the appellee, it was open to that construction. It was accordingly recommended to the court to amend it so as to leave no doubt that the court’s approval should be obtained before cars were actually run. So far as appears this suggestion was not noticed or acted on in any way, and what was then recommended we must now direct.

Appeals dismissed, with costs, but the court below is directed to reinstate the injunction unless within sixty days it shall be made to appear, affirmatively, to the satisfaction of the court, that the bridge has been made safe for continued use by the cars of the respondents.