Edwards v. Pittsburg Junction Railroad

Opinion by

Mr. Ciiiee Justice Mitchell,

The substantial question in this case is one of remedy. On the admitted facts it is beyond dispute that the defendant is acting without legal authority. It entered upon and occupied with its tracks the streets adjacent to the plaintiff’s property by the consent of the councils of the city of Pittsburg expressed in an ordinance passed November 30, 1881. The consent as shown by the ordinance was given on the clearly expressed and continuing conditions, inter alia, “ that the said company shall not use the steam whistle as a signal ” and “ that bituminous coal shall not be used for fuel in locomotives of said road, but that coke or other non-smoke-producing fuel shall be used.” It was found by the court below as a fact that both these conditions had for several years past been disregarded by the defendant. If therefore a bill had been filed by the city of Pittsburg either under its right to rescind expressly reserved in the ordinance, or its general right for condition broken there would be no defense. The question is whether the plaintiff as a private citizen has standing to maintain this bill.

A railroad company occupying a public street without authority by legislative grant in clear words or by unavoidable implication constitutes a public nuisance and may be enjoined at the suit of a private citizen specially injured : Penna. R. R. Co.’s Appeal, 115 Pa. 514. On this principle a railway company already occupying a street may question the right of another company seeking to put its tracks on the same street: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138. An abutting landowner may enjoin the construction of a street railway where the right of way has not been fully acquired: Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62. Or where the proposed line passes through several municipalities and all have not granted consent: Penna. R. R. Co. v. Electric Ry. Co., 179 Pa. 584; Hannum v. Ry. Co., 200 Pa. 44.

These authorities establish that except for the ordinance giving the consent of the city of Pittsburg, the acts of the defendant company would constitute a public nuisance which the complainant or any other citizen specially injured could require to be abated. But a consent upon condition, and the condition broken, is no consent at all. The breach makes the continued use as unlawful as if the condition had never been performed at all.

It is strongly urged that as the condition was made by the city of Pittsburg, and may be repealed or waived by the city, it alone can take advantage of the breach. Regarded as a contract or agreement between the railroad company and the city, this may be conceded, and it maj^ for present purposes be further conceded that a private citizen cannot in his individual right sue to enforce a public ordinance. But that is not the underlying and substantial purpose of the present bill. The complainant’s action is not to enforce the ordinance but to prevent an unlawful course of conduct injurious to her private property rights. This she is entitled to do under the Act of June 19, 1871, P. L. 1360. If the consent of the city had never been given the cases above cited show that the complainant could raise this objection and it must prevail. But as already said, consent on condition and condition unperformed or broken is no longer a valid consent. When a citizen finds his property or 1ns rights in danger of being injured or invaded by the acts of a corporation the act of 1871 gives him the right, without waiting for the assistance of the commonwealth, to challenge the authority of the corporation to the possession of “ the right or franchise to do the act from which such alleged injury to private rights results.” The corporation thus challenged must show its authority, and if such authority fails at any point the defense fails. What the plaintiff complains of is a want of authority to do the thing complained of, and complete present existing authority must be shown to support the right asserted: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138.

In some of the earlier cases effort was made to stretch the act to confer on private parties the authority previously exercised by the commonwealth to inquire into the abandonment or forfeiture of franchises, but it was held that the act did not confer on the individual the general authority of the commonwealth but that under it the inquiry must be restricted to the existence of franchises as shown by the charter: Western Penna. R. R. Co.’s Appeal, 101 Pa. 399. Hence the terms of the grant in the charter were usually spoken of as the test of the validity of the corporation’s action, and so far as the grant is concerned that is still as it always has been, the conclusive test. But it was never decided or intended to be that the failure of the grant could not be shown either from the charter itself or aliunde. Thus in the case last cited it was held that the complainant might show from the charter that the franchise had lapsed or expired, and the cases on passenger railways cited supra rest on proof outside of the charter that other legal requirements for the validity of the challenged action were wanting. The language of the charter therefore is not the sole test of the validity of the acts complained of. The purpose of the act of 1871 was to enable individuals to protect their private property and rights against unlawful and unauthorized interference by corporate action directly and without the necessity of invoking the aid of the commonwealth. The injury to the complainant is the same whether the illegality or want of authority arises from the charter or otherwise. What he challenges is the existence of present lawful authority to do the thing that injures him, and to that end he may avail himself of any defect in the authority set up, however arising.

The right of the complainant in the present case, therefore, does not rest on any claim to enforce the ordinance of the city of Pittsburg. But the ordinance is an existing fact material to the validity of the defendant’s action which without it would be a public nuisance enjoinable on the suit of anyone specially injured. If complainant could have shown that the ordinance had been repealed the whole defense would have failed. By showing that the ordinance though not repealed granted a privilege only on condition, and that the condition has been broken, complainant shows that the defendant’s action is without a present complete legal justification. For the purposes of this suit that is all that is necessary.

The city of Pittsburg is not interested in the present question. It may modify or altogether repeal the conditions of its consent in the ordinance. If it should do so the status of complainant in the present suit would be changed, but there would still remain the question of her right to damages at law, and perhaps other questions which we need not consider now.

The decree is reversed at the costs of the appellee, and the injunction directed to be awarded as prayed.