Reading City Passenger Railway Co. v. Berks County , 246 Pa. 44 ( 1914 )

Opinion by

Mr. Justice Brown,

With the demolition and removal of the old Harrisburg bridge, in the City of Reading, there was a termination of the agreement of December 27, 1893, between the County of Berks and the Reading City Passenger Railway Company and the Reading Traction Company. When that bridge passed away the agreement of 1893 passed away with it. The learned chancellor below was so manifestly correct as to this that we are not called upon to say anything further upon the subject. When the new and much larger county bridge was erected the appellants had no right to occupy it without, the consent of the county; but that consent could not have been arbitrarily withheld from them: Berks County v. Reading City Passenger Railway Company, et al., 167 Pa. 102. The terms upon which they had the right to use it became a matter of agreement, in the first instance, between them and the county, and when they were unable to agree, the equitable jurisdiction of the court below was properly invoked by the county in its cross-bill, for the purpose of determining the terms and conditions upon which the appellants might use it: Pittsburgh & West End Passenger Railway Company v. Point Bridge Company, 165 Pa., 37; Berks County v. Reading City Passenger Railway Company, et al., supra; Larue, et al., v. Oil City Passenger Railway Company, et al., 170 Pa. 249.

The appellants resist payment of any demand in excess of $600 per year for the use of the bridge — the amount fixed by the agreement of 1893 — as “illegal, exorbitant and unjustifiable.” In support of this contention they rely upon what we said in Point Bridge Company v. Pittsburgh Railways Company, 240 Pa. 105; and Monongahela Bridge Co. v. Pittsburgh Railways Company, Id., 121, limiting the claim of a city owning certain bridges to a sum equal to the additional cost for the supervision and repair of the same, made necessary by the use of them by the street railway companies. The answer to this is found in the following from the opinion of the court below: “In each of the cases cited a railway company had acquired the right to use with its tracks and cars a toll bridge owned by a corporation upon payment to it of a certain rental, and the city had consented to its occupation of the bridge as part of the highways without imposing any conditions. Subsequently the city had acquired the stock of the bridge company, thereby becoming the owner of the bridge, and declaring it free, reserving no payments from the railway company. It was held that the city could not thereafter exact any rental from the railway company, but was restricted to demanding from it such a license fee as would reasonably cover the cost and expense of repairs, maintenance and supervision required by the extraordinary use to which the structure was subjected — a right vested in it by reason and in the exercise of its police power. The language of the decisions, however, carefully confines them to the case of a right already acquired and lawfully used, as contradistinguished from one to be newly acquired upon terms and conditions imposed by the municipality, and to be used in accordance with them. The power in the latter case to exact something more is nowhere negatived, but explicitly recognized, as in the earlier cases, the intention to disturb which is disavowed, and under which, where they apply, the authority to demand and the obligation to pay are not referable to the police power. As already pointed out, it is with a question of the initial grant of a new right upon original conditions that we have here to do, not with one of a. demand based upon the continued use of a right previously granted and accepted on other, or without, conditions. In passing upon the question here arising the inquiry is whether the county in its demand is exceeding what is fair and reasonable under all the circumstances, so as to make it in effect an attempt arbitrarily to defeat the railway companies’ use of the bridge: see Berks Co. v. Rdg., Etc., Cos., 167 Pa. 102, 115, 118.” On this appeal the real question is whether the compensation fixed by the decree of the court below for the usé of the county bridge by the appellants was based upon proper and competent evidence and is fair and reasonable under all the circumstances.

Under the evidence which was considered by the learned chancellor below we find no error in any fact found by him, and the eleventh, twelfth, thirteenth, fourteenth and fifteenth assignments are dismissed. The ninth finding is as follows: “The cost of the construction of the new bridge of a width sufficient to permit a double track upon it, has been about $100,000 greater than it would have been had no railway tracks but the ordinary travel only been provided for — and the cost to the railway companies of a bridge of their own adequate for their purposes, having a life of 30 to 35 years would be from $60,000 to about that sum, not including changes of route, new tracks, etc., and the price of land to be taken, and thereto would be added the annual expense of maintenance and repairs.” This fact was pertinently found, and the evidence in support of it, which is complained of by the first, second and third assignments, was properly received as helpful to the court in determining what would be proper compensation for the use of the bridge by the appellants, so constructed by the county as to accommodate their growing needs. The first second and third assignments are overruled.

The fourth, fifth, sixth and seventh assignments complain of the admission of evidence as to the compensation paid by the street railway or traction companies in other counties for the use of public bridges. This was not proper testimony for the consideration of the court. The question before it was as to the compensation to be paid for the use of a particular bridge, under all the circumstances surrounding its construction. What might be proper compensation for the use by a trolley company of an entirely different kind of bridge, situated elsewhere, could throw no possible light upon the question of the proper compensation to be paid for the use of the Harrisburg bridge in the City of Reading. But this evidence did the appellants no harm, for the learned chancellor distinctly says, in overruling the exceptions to his findings of fact and conclusions of law, that he gave no consideration whatever to it. Its mere admission does not, therefore, call for a reversal of the decree. In this respect the proceeding below differs from a common law action: Sawtelle’s Appeal, 84 Pa. 306.

The eighth, ninth and tenth assignments do not seem to be pressed, and there is no merit in them, for the appellants were in no manner prejudiced by the information submitted to the court as to the number of passengers which they carried in their cars daily over the bridge, or as to the extent of the general travel over it.

There is nothing in the remaining assignments of error calling for further discussion. The legal conclusions reached by the court below properly followed the facts found, and the decree is affirmed at appellants’ costs.