Phillips v. Pittsburgh, Virginia & Charleston Railway Co.

Opinion by

Mb. Justice Williams,

These are cross appeals. The question raised by the bill is over the power of the plaintiffs therein to occupy concurrently with the defendant a strip of land twenty feet wide in the center of Twenty-first street in the city of Pittsburg on the west side of the Monongahela river. That raised by the cross-bill is over the right of the plaintiffs therein to the exclusive use of this same strip of land by virtue of a lease from Phillips and Burgwin to the Pittsburgh, Virginia and Charleston Railway Company executed on January 1,1886, for a term of thirty years, with the right to extend the same for another period of thirty years thereafter. There is no denial that the trustees had title to this strip of land prior to January 1, 1886, and the right to use it in any lawful manner. The Ormsby estate, represented by the trustees, owned two adjoining tracts of land on the west side of the Monongahela river. One lay along the river and extended back from it to the elevated land in which the coal measures were found. The other, which adjoined it, was in the coal measures, and was being mined for its coal by persons interested iii the estate. From the pit’s mouth upon this latter tract a narrow gauge railroad had been built across the easternmost tract, extending to the river’s bank, by means of which the coal was transported to boats on the river. The right of way or location of this railroad was along a strip of land twenty feet wide in the middle of a street laid out by the trustees, and now known as Twenty-first street. Although the use of this coal railroad had diminished, prior to January 1,1886, with the diminishing coal in the Ormsby lands, yet the right to maintain and operate it was in no way impaired, and the title to the twenty foot strip in the center of Twenty-first street was plainly in the trustees. By the lease executed on that day the Pittsburgh and White Hall Railroad Company acquired a right to build and operate on this strip of land in Twenty-first street, from the Monongahela river to Quarry lane, a standard gauge railroad. This grant was clogged with one condition in favor of the old coal road, which was in the following words : “ The said lessee shall not obstruct or interfere with the free use and operation of the present coal railroad now located and in use on said strip of land.” Beyond the right so reserved to operate the old coal railroad, the trustees parted absolutely with their control over the strip described, for the full term of the lease.

The lessees succeeded them in the control and use of the strip of land with the single exception that they could not obstruct the use of the coal railroad as it then stood in gauge or line of actual construction. The rights of the Pittsburgh and White Hall Railroad Company are now regularly vested in its successor, the Pittsburgh, Virginia and Charleston Railway Company, defendant in the bill and plaintiff in the cross-bill. The trustees are now attempting, not to repair or rebuild the old coal railroad as it was located and in use on the ground on January 1, 1886, but to build a new standard gauge railroad by the side of the defendant’s railroad covering the entire balance of the twenty foot strip, and extending over upon the highway. The defendants objected to this appropriation, and for that reason the trustees resorted to a bill in equity, in which they ask that an injunction issue restraining the defendants “from interfering in any way with the construction, maintenance and operation of plaintiffs’ railroad anywhere on their twenty foot strip of land in Twenty-first street,” etc. It is very clear from the language of their own lease of J anuary 1,1886, that the trustees have no such right in this strip as they here assert. Their right to maintain their coal road is not asserted by them, but the right to build a standard gauge railroad anywhere they choose, within the limits of the strip in Twenty-first street, is what is insisted upon in the bill. They have shown the possession of no such right by them since January 1, 1886, when they parted with all rights in Twenty-first street, save only the right to maintain the old coal railroad, of the gauge and location it then had. The bill should therefore have been dismissed at the cost of the plaintiffs.

The cross-bill recites the lease by the trustees to the Pittsburgh and White Hall Railroad Co., alleges that the limitation therein forbidding the obstruction of the old coal railroad was in the interest of the lessor’s coal only, that the Ormsby coal is now fully exhausted and the consequent right to maintain and operate the old coal railroad is now at an end, and asks a decree adjudicating the right of the plaintiff in the entire breadth of the twenty foot strip to be exclusive and without limitation for the full term of its lease. This seems to us to narrow the effect of the limitation in the lease. That limitation provides that the lessee shall not “ obstruct or interfere with the free use and operation of the present coal railroad now located and in use on said strip of ground.” It is not alleged that the right so reserved has been expressly released. We are not prepared to say from what is now before us that it has been lost or abandoned. Long disuse of such a right as is clearly retained by the trustees under this lease, coupled with the total exhaustion of the coal for the transportation of which the coal road was used, might support the theory of an abandonment of the right reserved; but we do hot think the evidence before us justifies us in saying that all rights in the old coal road are absolutely gone, and that the plaintiff has acquired an exclusive title to the whole of the twenty foot strip. The plaintiff has an exclusive right to build, operate and maintain its standard gauge railroad under the lease of January 1, 1886, and in accordance with its terms ; but in the few years elapsing since that date we do not see that the legal relations existing between lessors and lessee have been so changed as to justify the contention of the railroad company. We think therefore that the cross-bill should be dismissed at the cost of the plaintiff, upon the ground tbat the case discloses no reason for holding that the trustees have wholly lost, and the railroad company acquired, the old coal road and the ground on which it was located in 1886. The decrees appealed from are so far modified as to make each stand as a decree dismissing the plaintiffs’ bill at the plaintiffs’ costs, and as so modified the decrees are affirmed. Let decrees be entered accordingly.