Philadelphia & Erie R. R. v. Catawissa R. R. , 1 Walk. 81 ( 1871 )

The opinion of the Court was delivered at Pittsburgh, November 9th, 1871, by

Thompson, C. J.

It is a rule of very general application in this Court that Mandatory matter is not to be part or portion of a decree for preliminary injunction. The object of such injunction is usually to preserve the statu quo of the parties until final hearing, but the Act of 19th of June, 1871, P. Laws 1361, entitled “An Act relating to legal proceedings by or against corporations,” seems to require a different practice. For the present, at least, we must regard that Act as valid and binding, and it requires that “in all proceedings in Courts of Law or Equity of this Commonwealth, when they relate to crossings of railroads it shall be their duty to ascertain and define by their decree the mode of such crossing which will inflict the least practicable injury upon the rights of the Company owning the road which is intended to be crossed.

And if in the judgment of such Courts it is reasonably practicable to avoid a grade crossing they shall by their process prevent a crossing at grade.”

We cannot practically put in use the Act in this ease, supposing for the present that its provisions extend to the Catawissa road, which we do not definitely settle, without doing as did our brother Sharswood at Nisi Prius prescribe the manner of its use-at the crossings of the Philadelphia and Erie Railroad. This explanation seems necessary in order to preclude, what might be thought a divergence by this Court from its ordinary rule.

Decree.

And now, to wit: Nov. 9th, 1871, in view of the circumstance that the appellants have finished their road, and it is now in running order for the carriage of freight and passengers, as well as construction materials, we have on consideration of the facts and arguments of counsel considered it expedient to modify the decree at Nisi Prius as follows, namely :

That the defendants, the Catawissa Railroad Company shall be permitted to cross the complainants road at the several crossings now put in, or constructed with all their trains of cars, on agreeing to maintain a watchman at each of said crossings, at all time s, when the trains on their road are passing, and that each, and every train shall come to a full stop before crossing the complainants road, and then pass over at a rate of speed not exceeding four miles an hour.

' This order to supply the conditions of crossing prescribed in the decree in this case entered at Nisi Prius, Aug. 10th, 1871, and no more; and to remain until further order. And so much of said decree as relates to the reference to engineers, to remain unaffected by this modification.