Minersville Borough v. Schuylkill Electric Railway Co. , 205 Pa. 394 ( 1903 )

Opinion by

Mb. Justice Fell,

The right of the Schuylkill Electric Railway Company or its successor, the Pottsville Union Traction Company, to occupy Sunbury stre'et in the borough of Minersville rests entirely upon the ordinance of October 21, 1896. The grant of this right to the Schuylkill Electric Railway Company was on the condition that within one year the company should construct and operate a railway from Sunbury street through Heckschersville valley to Glen Carbon. The ordinance contained the following provisions : “ The right above granted to the said company to construct and lay a track on Sunbury street or maintain the same where already constructed shall be forfeited by said company and its successors unless a track is constructed, maintained and operated into and along Heckschersville valley to Scott’s store, in Glen Carbon, within one year of the acceptance of this ordinance by the Schuylkill Electric Railway Company; ” “ All rights and franchises heretofore and hereby granted on any of the streets of said borough to said railway company shall be void unless the said company shall construct, maintain and operate a railway on Sunbury street and a branch into Heckschersville valley to Glen Carbon under the rights and franchises granted by the said borough.”

The condition imposed by the ordinance was a reasonable one. The inhabitants of Minersville, many of whom were employed in mining operations in the Heckschersville valley, were interested in the extension of the branch road which had been projected by the railway company. This condition was expressly accepted by the railway company, and it became a contract between the parties by which the right to occupy the street was regulated, and it was binding upon the defendants. The power of the borough to give or refuse consent to the occupation of its streets was unqualified, and the power to impose reasonable conditions was necessarily implied: Allegheny City v. Millville, etc., Street Railway Co., 159 Ra. 411; Plymouth Township v. Chestnut Hill, etc., Railway Co., 168 Pa. 181. Ties and rails for the proposed extension of the branch road were distributed along the route before the passage of the ordinance. These were removed after the ordinance granting permission to occupy the street had been passed. The court found that the work was abandoned by the railway company, and that it made no reasonable effort to complete the road. This finding appears to be fully sustained by the testimony, and it established as a fact the failure of the company without adequate reason to perform a condition on which the grant was made.

There was nothing in the conduct of the borough to give rise to an estoppel. Its officers notified the railway companies that they would insist upon the building of the branch road, and the delay in commencing proceedings against them was indulgence only which led to no change in the situation to their prejudice. As this conclusion fully sustains the decree entered, it is unnecessary to consider the other grounds upon which it is based. The decree is affirmed at the cost of the appellants, with leave to the court of common pleas to fix such a time for the removal of the tracks of the railway company and the restoration of the street to the condition it was in before they were laid as under the circumstances may be deemed reasonable and just.