Bradford v. New York & Pennsylvania Telephone & Telegraph Co. , 206 Pa. 582 ( 1903 )

Opinion by

Mr. Justice Brown,

Under nine different heads, the court below passed upon twelve distinct questions regarded by it as involved in the decision of this case, and counsel for appellant and appellees discuss them in most elaborate printed arguments ; but, as it is clear to us that the long acquiescence of the city of Bradford in what was done by the appellees and their predecessors, and its laches in filing this bill, are conclusive against its right to do so, no other question need or will be considered here.

In the court’s eighth conclusion of law there is a summary of material facts, which were fairly found from the testimony. They are, that the borough of Bradford and the city of Bradford, its corporate successor, had permitted the defendants and their predecessors in ownership for more than twenty-one years to occupy the streets and highways of the said borough and city with poles and wires; that, without protest or objection, the borough and city stood silently by while the defendants were, during this period, making, in good faitlr, an expenditure of from $75,000 to $100,000; that, by numerous resolutions passed by both branches of council, and many of them duly approved by the mayor, consent had been given to the erection and use of the poles,' cross arms, etc., on the streets and highways of the city; that, for the privileges extended by it to the defendants, it had received a valuable consideration in the use of the poles for the carrying of the wires of its fire alarm service; that it had received and duly receipted for license and pole taxes assessed against the defendants; that it had used the telephone instruments furnished by the defendants down to the date of the hearing in the court below ; that it had, by general ordinances, regularly passed, approved and published, regulated the manner in which the poles should be erected and placed ; that a consideration to the city in extending privileges to the defendants was a reservation of “ the topmost gain ” for police and fire alarm wires, and that the city had permitted all the poles of the defendants to be erected under the direction of either the street committee of council, the street coinmissioner or the city engineer. In view of this acquiescence in what, at this late day, is complained of, a chancellor would unhesitatingly dismiss the bill, if the complainant were an individual. Ought any other rule to be applied to this city ?

While the authorities with us are not numerous in holding that laches may be imputed to the commonwealth and municipalities in denying them equitable relief which might otherwise be granted, the rule that it can be imputed to the public is clearly laid down in several cases. “ Laches may be imputed to the commonwealth as well as to an individual: ” Commonwealth ex rel. Attorney General v. Bala and Bryn Mawr Turnpike Co., 153 Pa. 47. In Penna. R. R. Co. v. Montgomery Co. Pass. Ry. Co., 167 Pa. 62, we said: “ But we know as matter of current history that street railways have been projected, and actually constructed, and are now in operation, over country roads where no legal consent has been obtained, and where no attention has been paid to the rights of property-holders. Such railways cannot now be torn np or enjoined either by the township officers or at the instance of landowners along their routes. Where such enterprises have been allowed to proceed and the expenditure of large sums of money has been permitted, it would be inequitable to correct at this time what was a mutual mistake under the influence of which these enterprises have been pushed to completion.” What was said in Attorney General v. Delaware and Bound Brook Railroad Co., 27 N. J. Eq. 1, in denying an injunction asked for by the state, may well be regarded as applicable to the facts in the present case: “ The work has been, from its commencement, a matter of public notoriety, and yet no action has been taken on the part of the state authorities, nor even any warning uttered by them against the work. The defendants have been permitted to make their immense expenditure upon their enterprise, in the confidence of their convictions that they possessed all requisite legislative authority, without even a word of protest or remonstrance. Under such circumstances, equity will refuse its aid, even to the state.” A stronger case of delay or acquiescence is necessary to prevent equitable relief when sought for by the state than when a mere private right is involved; but the doctrine is applied against the public in a proceeding by the attorney general: High on Injunctions (3d ed.), sec. 837. In the present case, the acquiescence and the laches of the appellant are clearly in the way of any equitable relief to it. We pass upon no other question.

Decree affirmed and appeal dismissed at appellant’s costs.