Buffalo, N. Y. & P. R. Co. v. Commonwealth

Opinion,

Mr. Justice Clark:

In the summer of 1881, the Buffalo, Pittsburgh & Western Railroad Company constructed a railroad between Irvineton and Olean, along the banks of the Allegheny river, passing through Glade township, in Warren county. In 1883, that company and several others, existing under the laws of this state and the state of New York, were consolidated into the Buffalo, New York & Philadelphia Railroad Company; which company, having filed a certificate with the secretary of the commonwealth, established an office and designated its agent within this state in compliance with the act of 1874, took possession and control of the railroad mentioned, and on August 9,1886, and for some time prior to that time, were using, occupying, and operating the same for the general purposes of a railroad.

On August 9, 1886, the commonwealth, upon the relation of the attorney-general, filed a suggestion in the Court of Common Pleas of Warren county setting forth that the Buffalo, Pittsburgh & Western Railroad Company, in the year 1881, had constructed their railroad in and upon a certain public road or highway in Glade township, leading from the town of Warren, along the Allegheny river to the village of Kinzua; that the said company had by excavations, filling and grading so obstructed the said public road as to prevent public travel thereon; that all that portion of the said public road, from a point at Glade Run to the east lino of Glade township, was actually taken and appropriated to the exclusive use of the railroad company; by reason whereof it became the duty of the company, forthwith at their own expense, to reconstruct that portion of the public road, as required at law; and, although the defendant company continued to enjoy its corporate powers and franchises in the maintenance and operation of said railroad, yet neither the Buffalo, Pittsburgh & Western, nor the Buffalo, New York & Philadelphia Railroad Company, had “ caused the said public road and highway to be reconstructed on the most favorable location and in as perfect manner as the original road,” therefore, praying that a writ of mandamus may issue, etc.

The alternative writ having issued, the defendant made a return, the sufficiency of which is the question now to be considered. That question was raised in the court below, in part by a plea to the jurisdiction, and by demurrer. The jurisdiction of the court, however, cannot be seriously questioned. That branch of the case has not been discussed here, and we will not consider it. The only matter to be determined is raised by the demurrer bo the fifth paragraph of the amended return.

It is contended, on part of the commonwealth, that this part of the return is evasive and equivocal; first, that the facts therein set forth do not aver a performance, by the company, of the duty imposed by the statute; that, although it does aver that the company forthwith reconstructed, etc., a road, occupied by them in Glade township, it does not specifically aver that they reconstructed the road in question; and, second, that it does not set forth that the road was reconstructed at the company’s expense, upon a fight of way lawfully acquired. The learned judge of the court below would appear to have adopted this construction of the return, and it was upon that ground judgment was entered in favor of the commonwealth, and the peremptory writ awarded.

Upon a careful reading of the return, and of the alternative writ, we are unable to accept this view of the case. The suggestion of the commonwealth, as set forth in the alternative writ, is, in substance, that the Buffalo, Pittsburgh & Western Railroad Company, in the construction of their railroad, appropriated and occupied a certain public road, particularly describing it, and that neither that company, nor the defendant company, had caused the said road to be reconstructed, etc. In the original return, the defendants, admitting the appropriation of a road adjacent to the Allegheny river, aver that, they did cause it to be reconstructed, not stating specifically, however, that the road thus appropriated was the road described in the writ. Subsequently, the defendant company filed their petition, setting forth that this failure of identification occurred through inadvertence merely; that it was their intention to admit, and they did admit, that the company, in the summer of 1881, had appropriated “ the road, located as set forth in the plaintiff’s petition,” and that if their return was capable of being otherwise construed, they prayed for an amendment thereof. The fifth paragraph of the return as amended is in part as follows: “ The defendant, further answering, admits that when the Buffalo, Pittsburgh & Western Railroad Company built its railroad through Glade township, in the summer of 1881, it did occupy, and the defendant still continues to occupy, adjacent to the Allegheny river, located' as set forth in plaintiff’s petition, and did and does occupy no other road— a road, whether a duly ordained and authorized public road, this defendant does not know, and for the purpose of this suit denies, and asks that the relator may be compelled to prove the same.”

It is difficult to see how the identity of the road could be more specifically ascertained; the road which the company admits to have appropriated, is stated in the return to be the road “located as set forth in the plaintiff’s petition.” The defendant was not bound to admit that it was a public road. If the fact was not known to the company there is no law or rule of practice which would oblige the defendants to say that it was or was not.

It must be conceded, also, that the defendant was not obliged to traverse in its return any fact, or to answer for any breach of duty not set out or assigned in the writ. The specific and substantial matter complained of on part of the commonwealth, with respect to this road, is that the defendant did not, nor did the Buffalo, Pittsburgh & Western Railroad “ forthwith, nor at any time cause the said public road and highway to be reconstructed, on the most favorable location, and in as perfect a manner as the original road, so as aforesaid taken and appropriated, and though requested so to do it has altogether neglected and refused, and still neglects and refuses, to reconstruct the same, in the manner aforesaid, as required by the law,” etc. To this specific charge, the defendants in their return answer as follows: “ The defendant avers, however, that said company, last aforesaid named, forthwith, and with the knowledge of the commissioners and proper road authorities of said Glade township did cause the said road to be reconstructed, on the most favorable location, and in as perfect a manner as the original road, without objection by said commissioners and road authorities.” This is a full and direct traverse of all that is set forth jn the suggestion, or assigned in the writ. If it be true, as alleged, that the company has in fact reconstructed the road, on ground over which they have no right of way, or if the road has been reconstructed at the expense of the township, or if it has not been reconstructed on the most favorable location, or in as perfect a manner as the original road, or, indeed, if it has not been reconstructed at all, it would have been an easy matter to say so. The commonwealth has made its case upon the specific matters of complaint assigned in the writ; these matters of complaint have been directly denied and traversed in the same form of words in which they were made, and if this does not raise the issue desired, it is certainly not the defendant’s fault. We are of opinion that the court erred in entering judgment for the plaintiff on the demurrer, and in awarding the writ of peremptory mandamus.

The judgment is therefore reversed, the writ of peremptory mandamus set aside and vacated, and the record remitted for further proceedings.