Taylor v. Erie City Passenger Railway Co. , 212 Pa. 487 ( 1905 )

Opinion by

Mb. Justice Bbown,

The appellants filed this bill to enjoin the use of a switch and to compel the appellees to remove it. The real estate abutting on the road on which the street-railway is constructed belonged to William L. Scott, deceased, who devised it to the appellants in trust. In 1889, when the appellees constructed their railway, he gave them permission to locate it in front of his property, with the necessary turn-outs. During that year the switch in controversy, known as the “ Blacksmith ” or “ Cemetery ” switch, was constructed and has been used ever since by the appellees as a part of their system, in the improvement of which they have expended a large sum of money. Prior to 1893 they had five switches or sidings between the city of Erie and Trinity cemetery. In that year they began to lengthen the sidings and the authorities of Mill Creek township filed a bill to restrain them from doing so, on the ground that the sidings were to be unnecessarily lengthened and would, if lengthened, practically make a second track on the highway. The decree of the court below, affirmed here, Willis et al. Commissioners of Mill Creek Township, v. The Erie City Passenger Railway Company et al., 188 Pa. 56, prohibited the construction of any siding of a greater length than 360 feet, and directed that, as the switches were relocated and constructed, those supplied by them should be removed.

The “Blacksmith” or “Cemetery” switch was constructed in pursuance of authority expressly given the defendants to construct it by the property owner and the township authorities, and but for the proceeding instituted by the latter in 1893, resulting in the decree stated, the appellants would not be raising the question of the right to continue to use it. In 1889 the owner of the property, whom they represented in 1902, when they filed this bill, had, in writing, granted to the appellees the right “ to occupy and extend their line of railway and the necessary turn-outs ” in front of his premises. This switch is one of these turn-outs. When the appellees, in 1893, were so lengthening their sidings as to practically construct a second track on the public road, the commissioners of Mill Creek township, to prevent the danger of traveling over the road with a second track constructed on it under the guise of sidings, filed a bill to enjoin their construction, and, after a full hearing a decree was made directing that five new ones could be constructed, and that as soon as any of them were relocated and constructed, those which they supplied should be removed. To that proceeding by the township commissioners these appellants were not parties, and they are not in a position to ask for the enforcement of the decree. They allege that the appellees are in contempt of it. This question, however, can be raised only by those who are entitled to enforce it. It was not made for the benefit of any private individual, but for the public in a proceeding by the public authorities, who had the supervision of the highway. After the five switches had been constructed they might have asked for the enforcement of the decree, and, if so, an order would have been made for the removal of the “ Blacksmith ” or “ Cemetery ” switch, as it had been supplied by another. But they could waive the enforcement of the decree, and did so, by formally permitting the defendants to continue the use of the switch, which was found by the court below to be of great value to them in the operation of the railway, of great convenience to the traveling public and occasioning no damage to the appellants. More than four years after the township authorities might have insisted upon a removal of the switch, and more than three years after they had consented to its continuance, the appellants filed this bill. Even if there had not been an express grant from Scott, authorizing the construction of the switch, with no objection to it from him or the present appellants until this bill was filed, equity would not decree its removal after this great lapse of time and the expenditure by the appellees of large sums of money in improving their tracks and system, of which the switch forms a part.

Defendants’ seventh request for a legal finding by the court below was that, as the road commissioners of Mill Creek township, by resolution duly passed June 23, 1899, had given their consent to the continued use of the “ Blacksmith ” switch by the defendants, the construction of which had been duly authorized in writing by William L. Scott, the owner of the adjoining property, and as it had been constructed and remained in the use of the company without objection on the part of the heirs and representatives of Scott from 1889 until this bill was filed, the defendants were entitled to continue to use it in the operation of their railway. In this request the whole situation is presented. The learned judge properly found as requested, and the decree which logically followed his finding is affirmed at appellant’s costs.