Bryner v. Youghiogheny Bridge Co.

Opinion by

Mr. Justice Mitchell,

This being an appeal from a preliminary injunction we follow the usual course, and do not discuss the merits of the controversy further than may be necessary in determining the propriety of an injunction at this stage of the case.

Two mam questions are presented, first, the right of the bridge company, appellant, to build its bridge in the location and manner selected, and secondly, the standing of the plaintiffs to question the appellant’s action.

First. The original bridge was built under the authority of an Act of Assembly of March 15,1800, 3 Sm. L. 436, 6 Carey & Bioren’s Laws, 131, granting to two private citizens, Meason and Connell, the right to build a bridge across the Youghiogheny river. It appears that Meason and Connell were the owners of the land on both sides of the river at the proposed site, and the act directs that the bridge shall be located at Connellsville “near where the Great Road leading from Philadelphia to Uniontown crosses the said river,” and expressly excludes any authority to occupy private property without the owner’s consent, or to interrupt the navigation or the use of the ford across the river near where the bridge may be erected.

By the Act of April 17, 1861, P. L. 687, the then owners of the bridge, with their associates and successors, were incorporated as the Youghiogheny Bridge Company. It is claimed by the plaintiffs, and was so held by the court below, that the direction to build the bridge “near” the Great Road, which is now Main street in tlie borough of Connellsville, prevented its location “ on ” or “ at ” Main street, and that there is no power in the bridge company or the borough of Connellsville, or both combined, to relocate it as now proposed. On the other hand appellant claims that the original bridge has been rebuilt or replaced with some variation of site, twice before 1861 and once since, and that the power to so relocate must be necessarily implied from the destructibility of the bridge and the changes of the banks of the river by floods and by buildings and improvements following the course of population and travel. See, for illustration, Seabolt v. Commissioners, 187 Pa. 318. And appellant further claims that the act of 1861, having conferred upon it the franchises of a bridge company, must be held to have conferred all powers necessary to the accomplishment of its purposes, including eminent domain, at least to the extent requisite to enable it to make changes demanded by the business and the accommodation of the community.

We do not find it necessary to discuss these contentions at present further than to say that the want of authority in the appellant is not entirely clear. The facts have not been developed, and tlie rights of the parties may depend materially on them as they shall ultimately appear.

Secondly, as to the standing of the complainants. As originally filed, the bill was in behalf of the borough of Connellsville, inter alios, acting by its burgess, claiming that the ordinance giving consent to the proposed change in the approach to the bridge was not properly passed, and had been effectively vetoed. A large part of the attention of the court below was occupied with this part of the subject.

The borough having, in October, 1898, entered into a contract with the bridge company whereby, in consideration of a sum of money (subsequently paid to it) and certain stipulations as to the bridge, the tolls, etc., it agreed to grant, “ by ordinance duly enacted,” the right to locate and construct the bridge and its approaches in the manner proposed, it is not seen how it has any standing in a court of equity to set up its own failure to pass the ordinance, without at least showing a violation by the bridge company of some material obligation under the contract. But even this question has become immaterial. The objections of the burgess to the ordinance as passed having been obviated, he withdrew them, and with leave of the court formally discontinued the suit so far as he was party either individually or as the representative of the borough. Whether the borough’s consent was by ordinance or by contract, was, therefore, unimportant, at least for the present controversy; the material fact was the consent, and that is now undisputed.

The other parties complainant are property owners, and they of course must stand on their own rights.

The substantial effect of the change proposed is to elevate the Connellsville end and approach to the bridge so as to cross the tracks of the Baltimore & Ohio Railroad Company on Water street overhead instead of at grade, and in so doing to extend the approach to the bridge over the northern half of Main street eastward for a distance of 163 feet, where it would meet the present grade of the street, or, in other words, to divide Main street at that point so that its northern half shall ascend to the bridge, and the southern half descend to Water street as at present. Water street is not affected except by the pillars along the line of the curb supporting the approach to the bridge overhead.

One of tlie complainants, Orth, is the owner of land on the south side of Main street at the corner of Water. The effect of the change will be to reduce the width of the cartway of Main street in front of that property, from thirty-six to eighteen feet. None of the other complainants are owners of lots on Main street. It is clear that, while the other complainants may be incommoded by having access from Water street to the bridge made less convenient, and Mr. Orth additionally by having Main street narrowed in front of his lot, yet there is no evidence that the injury, if any, is different except in degree from that of the public in general, or that it cannot be fully compensated in damages. In such circumstances the only standing of private parties to enjoin the proposed action is on the ground that it is clearly and wholly beyond the powers of the defendant. Such is not the case here.

There is another potent reason why all doubtful questions must be resolved against an injunction. The proposed change is a public improvement in the direct line of the policy of the state to do away with grade crossings of railroads. The Connellsville end of the present bridge opens on Water street at grade with three tracks of the Baltimore & Ohio Railroad. The new bridge will cross all these overhead. The legislative policy is declared in the Act of June 19, 1871, P. L. 1860, giving the courts jurisdiction over the mode of the crossing of one railroad by another; in the Act of June 9, 1874, P. L. 282, authorizing counties, cities, towns and townships to enter into contracts with railroad companies to relocate;, change or elevate their tracks in order to promote the security of life and property; in the Act of May 31,1887, P. L. 275, allowing railroads, with the consent of the municipalities, to elevate or depress their tracks through cities ; and perhaps in other acts of similar import, and the courts have uniformly followed the legislative policy thus indicated. In Perry Co. R. R. Extension Co. v. Newport, etc., R. R. Co., 150 Pa. 193, referring to Pittsburg, etc., R. R. Co. v. S. W. Pa. Ry. Co., 77 Pa. 173, the Court said: “We will supplement the decision of that case by saying that the time for grade crossings in this state has passed. They ought not to be permitted except in case of imperious necessity.” In Penna. R. Co. v. Electric Ry. Co., 152 Pa. 116, the act of 1871 was held to apply to street railways. And in Scranton, etc., Traction Co. v. D. & H. Canal Co., 180 Pa. 636, 643, it was said by our Brother Dean for the Court, that “ after ample time for the most thorough consideration we are determined to adhere unflinchingly to the rule announced in Perry Co. R. R. Extension Co. v. Newport, etc., R. R. Co., 150 Pa. 193, and subsequent cases.” The courts have not yet been invested with the same authority to regulate grade crossings of railroads over ordinary streets and highways, but the same considerations of safety to life and property, though in a less imperious degree, require the application of the same general policjq and where, as in the present case, the proposed change is for the purpose or with the effect of avoiding a dangerous crossing of that kind, equity will not enjoin it unless it be clearly and wholly without authority, and the injury therefrom to the parties complaining be substantial, irreparable, and not measurable in damages at law.

The injunction is dissolved. Costs to abide the final disposition of the suit.