Junction Passenger Railway v. Williamsport Passenger Railway

Opinion by

Mr. Justice Dean,

Both plaintiff and defendant are street railway corporations under the laws of this commonwealth. The plaintiff’s charter is dated April 8, 1892, and was issued under the general act of May 14, 1889. The defendant was incorporated long before, under special act of April 15, 1863. Both have authority to construct and operate street railways in Williamsport. The plaintiff, by its charter, is authorized to occupy and operate its railway on Market street as follows: “ Beginning at the intersection of Market and Hepburn streets and thence southwardly through Market street in said city to the southerly line of the city.”

The defendant’s charter being the act of 1863, under which it is incorporated, specifies its right as follows: “ Said company shall have power to lay out and construct a railway, commencing at Third and Market streets in the borough of Williams-port, and continuing westwardly along Third street or any other street in said borough to the village of Newberry in said county, and eastwardly through said Third street or streets in said borough, as may be deemed advisable by said company, to and through the borough of Montoursville, with the right to construct branches to the main track of said passenger railway through any of the said streets of this borough of Williams-port, with single or double track.”

It will be noticed that, regard being had to the general direction of each railwajq as pointed out in their charters, there would not necessarily be any antagonism or rivalry between them. The plaintiff is to run north and south; the defendant east and west.

When plaintiff obtained, on the 8th of April, 1892, from the commonwealth, the right to lay its track north and south on Market street, there was not a rail upon it, except where defendant crossed it at Third street. It was open, and its unoccupied appearance invited appropriation.

On the 14th of April, 1892, six days after plaintiff’s charter was issued, defendant commenced work on Market street at different points with a view of laying its rails on the ground described in plaintiff’s charter. Whether the intention was to exclude plaintiff from the street, or to, in good faith, construct and operate its own railway thereon, is not material, if plaintiff has the superior right, for this right cannot be exercised if the defendant continues its work.

When the work was commenced, plaintiff filed this bill, averring its right to Market street, denying that of defendant, and praying for an injunction. Defendant answered, by averring its own prior right under the grant in special act of the 15th of April, 1863, and further denying plaintiff’s right to the corporate power it claimed, because, as it alleged, the route as set out in its charter did not constitute a complete circuit, an essential requirement, without which there could be no lawful organization under the general act of 1889. A preliminary injunction during pendency of suit was awarded, and J. F. Strieby, Esq., was appointed master to take testimony, find facts, and suggest final decree.

The material facts as found by the master are: 1. Defendant commenced the work of excavation on Market street on the 14th of April, 1892, and was proceeding with it when stopped by the preliminary injunction. 2. That up to that date no track of a railway had been laid upon the street, or work done upon it with that intention. 8. That the work being done by defendant would effectually prevent plaintiff from occupying the street as described in its charter. 4. That defendant had commenced work on Third street in 1864, and in subsequent years had largely increased its trackage, principally in an east and west course, the variations being only for short distances to give it a more eligible route in one or other direction. 5. That in 1891 it had substituted electricity for horsepower. 6. That the route described in plaintiff’s charter was not a circuit in the sense that a starting point could be again reached by traveling the untried length of the railway on a separate roadbed, but to reach such starting point the same rail must be run over back again. 7. At date of defendant’s franchise in 1863, Williamsport was a borough with a population of about 4000; that in 1892 it had become a city with a population of about 35,000.

As matters of law, he concludes, that from the description of defendant’s grant, as applied to the streets named in it as they then existed, and from the course of Market street, defendant never had a right to occupy Market street. That the construction of its railway, from the plain import of the description in the act of assembly, was to be eastwardly and westwardly from the intersection of Third and Market, and the implication of a right to go north and south on Market is not warranted by either the language of the description, or the circumstances connected with the location and operation of the railway. That the words “ the light to construct branches to the main track of the said passenger railway through any of the said streets, ” mean only streets theretofore mentioned in the description, as Third street or any other street running westwardly to Newberry, or Third street or any other street running eastwardly to Montoursville, and that by no reasonable implication could Market, a north and south street, be meant. He further concludes that the word “ circuit ” in the act of 1889 does not mean a complete or geometrical circuit, but that it was used as synonymous with course or route.

Therefore, he suggests that defendant be perpetually enjoined from laying its track upon or occupying Market street from its junction with Hepburn street southwardly to the city line.

On full hearing before the court on exceptions to the master’s report, it-was, on February 4, 1893, approved, and the preliminary injunction was made perpetual: the court in its decree adopting and reaffirming a very full opinion, filed when the preliminary injunction was awarded on the 11th of May, 1892.

From this decree the defendant took this appeal.

Defendant’s argument sets out very clearly and broadly the powers and rights claimed by it under the act of 1863. If sustained, the injunction restraining it from occupying Market street ought not to have been awarded ; if not well founded, the decree should be affirmed. Its claim may be thus condensed : “ Under a fair interpretation of its grant under the act of 1863, it confers on defendant the right to lay its rails on any of the streets of Williamsport.”

The value of such a right, to a private corporation, in a growing city like Williamsport, must be very great, and ought not to be disturbed if clearly sanctioned by law. The consequences in admitting it, however, are very grave to the city as well as to this plaintiff. If the right has its existence in the act of 1863, then the company, in its exercise, is altogether free from the control of the city authorities, except in those immaterial particulars specified in the act. Without the consent of the city the defendant can, for all time, appropriate for the use of the railway any of its streets. The city is, so far as concerns the use of its streets, by a law of the commonwealth, delivered over to a private corporation, having no other interest, perhaps, except that of collecting fares from passengers, Its assertion is, that under a special act of the legislature in 1863 it was endowed with the right to construct in Williams-port, on any street or streets éastwardly and westwardly, without limitation as to time, a passenger street railway, with branches on all cross streets. That, although at the date of the grant, Williamsport was a small borough of 4000 people, yet that now, twenty-eight years after, when it has become a city of 35,000 people, with greatly enlarged territory, and its form of municipal government changed, it has the same right to the streets of the city as it had to those of the borough in 1863.

It is perhaps too late to inquire whether the legislature, under the obnoxious system of private legislation, before the adoption of the constitution of 1874, could do this, but it is not too late to inquire whether in this instance it has done so.

In this inquiry we start with the principle, even then old, declared by this court in 1855 in the construction of a grant to a private corporation through public property, in Allegheny City v. Ohio & P. R. R. Co., 26 Pa. 358: “Nothing is to be taken by implication against the public except what necessarily flows from the nature and terms of the grant.” This doctrine has been repeatedly announced in a large number of cases since. In Bank of Penna. v. Commonwealth, 19 Pa. 152, we held that unless this doctrine be strictly adhered to, “ the legislature, without knowing or intending it, might be induced to disarm the state of the most necessary powers and transfer them to corporations. The continued existence of a government under such circumstances would not be of much value. There is no safety to public interests except- in the rule which declares that the privileges not expressly granted in the charter are withheld.” Again in Commonwealth v. E. & N. E. R. R., 27 Pa. 339 : “ A doubtful charter does not exist; because whatever is doubtful is decisively certain against the corporation.”

In this case, on the 8th of April, 1892, under the general act of 1889, the commonwealth granted, by plain words to the plaintiff, the right to occupy one particular street with a street railway, specifying the points of beginning and ending, and while granting this right, the exercise of it is made to depend on the consent of the city. Six days afterwards, it is met by the defendant with a denial of the right of the state to grant to plaintiff, or any other corporation, the street for such purpose, because the same sovereign had already in 1863 made a grant to it of the same street for the same purpose ; and this being the prior grant, it renders valueless the later one.

Where are the indubitable words of this first grant which give to the defendant this street? The plaintiff’s grant being definite as to location, it will prevail, unless defendant’s to the same' location be definite. We assume, with the court below, that defendant’s right to occupy Third street, or any other street running eastwardly and westwardly to its terminal points, is definite as to location; but, according to defendant’s own view, the right to construct branches to this definite location of its main line was wholly indefinite as to location of the branches. Not a single street was named, nor were any words used, certainly designating them. Follow to its legitimate conclusion the defendant’s claim in its own words, as stated in paragraph 3 on page 58 of the paper-book, and see to what consequence it leads:

“ A fair interpretation of the grant makes it confer the right to construct branches on any of the streets of Williamsport.” That is, if there be no time within which the streets are to be designated then “ any ” necessarily includes all; if it have the right to all for all time, then no other railway can ever have the right to any street; defendant may or may not occupy the streets, but if it do not, its prior, and therefore superior right excludes all others. That such a right, altogether doubtful in ■its exercise, should extend forever to all the streets running north and south, cannot be based on any reasonable interpretation of the act. If the legislature intended to confer such a power of indefinite location, without limit in duration, it should have said so in plain words. No court, under any rule applicable to grants of rights to private corporations as against the public, will imply such a scope to the words used. The manifest implication from the language is, the right to select and occupy streets with branches within a reasonable time. No branch streets are specified; these must be specified by the defendant by occupancy. It may take many, few, or none; but if it does take anjr, it must point them out by unmistakable acts. When it actually occupies them, then the grant, certain as to power to take, is no longer doubtful as to location.

What was a reasonable time to make certain the uncertainty in this grant by a selection of branch streets ? We have no hesitation in holding that a delay of twenty-eight years, until the village had become a city, until science had substituted an entirely different motive power, and until after the state had granted this unoccupied Market street in clearly expressed terms to another corporation, is too late. Defendant’s indefinite location has become fixed and definite, so far as it has made the selection of branch streets and is in the actual occupancy of them; and while no subsequent grant by the state, under the act of 1889, will be effectual to disturb it in the operation of its railway where built, its power to go on defining what streets it will take has ceased. The state has a right to presume, and the presumption is conclusive, that after this lapse of time defendant has taken all it desired under the grant, and all it had the right to take. As to future appropriations of north and south streets, they can only be made under the laws applicable to corporations of a like character.

In opposition to this view, we are confronted with the opinion of this court in Williamsport Pass. By. Co.’s Appeal, 120 Pa. 1, which is cited and relied on, as in effect an adjudication of this contention. That case does not touch upon this issue passed upon in the court below or here. The question there was whether, to exercise the express right conferred by the act of 1868 in the extension of its road east and west, the defendant must have the consent of the city council. This court held that the work then being done was under the express authority of the charter. Chief Justice Paxson in the very first words of the opinion says: “ It is not denied that the charter of the appellant company gives it the power to lay its tracks upon the streets in question. And if it were denied, it would not matter, as such power is expressly conferred.” He had in his mind the power to run westwardly to Newberry, and eastwardly to Montoursville. This was not denied then, nor is it denied now. It was decided, that the express power thus conferred of running east and west to its terminal points was not abridged or taken away either by the constitutional amendments of 1857, the new constitution of 1874, or the general legislation subsequent thereto. That case was rightly decided on the single question then before us. Here, the power to appropriate north and south streets under a power to appropriate east and west streets is denied.

The court below holds that neither expressly nor by fair implication from the words of the grant, has the defendant the right to occupy Market street. We affirm the decree, not only * for these reasons, but for the additional one, that the grant of any streets, not leading in the direction of its terminal points, was wholly indefinite, only to be made definite by their occupation under the grant within a reasonable time, now passed; and that any further occupation by defendant of north and south streets must be accomplished with the consent of the city, under the general legislation applicable to street railways in this commonwealth.

As to the assignment of error that plaintiff’s route does not describe a circuit under the act of 1889, and for that reason it can exercise no corporate power to construct its railway, we are of opinion that as the state authorities, in their understanding of the meaning of the term “ circuit,” issued a charter specifying the straight line of a north and south street as the route of the proposed railway, we ought not in this proceeding, in which the state is no party, to render a judgment which would in effect revoke the charter. If the charter is inoperative because it described a route not authorized by the act of 1889, that question can be most effectively determined in another form of proceeding. The decree of court below is affirmed, and appeal dismissed at costs of appellant-

Mr. Justice Mitchell dissented.