Pennsylvania Railroad v. Glenwood & Dravosburg Electric Street Railway Co.

Opinion by

Mb. Justice Feel,

The bill in this case was filed to prevent the defendants from constructing a bridge or viaduct over the tracks and property of the plaintiffs at a point where there is no street or highway, and also to prevent the construction of an overhead way across a street on which the plaintiffs own property in fee. The answer denies the right of the plaintiffs to the intervention of a court of equity for the reason that the overhead crossings which the defendants have undertaken to construct, and on which they have made large expenditures, were suggested by the plaintiffs in order to prevent a crossing of their road at grade, and were undertaken with their knowledge and consent.

Work was commenced on the defendants’ road in September, 1894, and it was practically finished in March, 1895, except at a point on McClure street in the village of Dravosburg, Avhere it intersected the plaintiffs’ road. A number of consultations had been held between the defendants’ officers and the local officers of the plaintiffs, to determine the best plan to effect a crossing at grade. Negotiations had been pending for some time, and an agreement had been prepared, when the decision of this Court in Penna. R. Co. v. Montgomery Co. Passenger Ry., 167 Pa. 62, was handed doAvn. On April 5, 1895, the plaintiffs filed a bill to prevent a crossing at grade. HaA'ing allowed the road to be built in front of their properties on Maple avenue and McClure street without objection, it was then too late to ask for its remoAral, but they sought to prevent a grade crossing. The bill alleged a want of power in the railway company to construct a road, but there was no prayer asking for its removal. The application for a preliminary injunction was refused. An appeal was taken by the plaintiffs, which by order was made a supersedeas. When the case was called for argument in this Court in October, 1895, a decree reversing the order of the common pleas refusing an injunction was entered by consent of the parties, and an injunction Avas awarded. The decree contains a preliminary recital that the defendants had abandoned the intention to construct a crossing at grade. At the hearing of that case in the common pleas the right of the defendants to cross at grade- was contested on the ground that it was reasonably practicable to make an OArerhead crossing, and different ways in which this could be done were pointed out by the plaintiffs’ officers. Maple avenue is nearly parallel to the plaintiffs’ road, and McClure street crosses it at right angles. On one side of McClure street is an elevated incline or private coal road which crosses Maple avenue and the tracks of the railroad above grade. The tracks of the electric railway had been laid on Maple avenue and McClure street at grade to the tracks of the plaintiffs’ road. Of the plans for an overhead crossing, the best, but by far the most expensive, suggested, was to purchase property on Maple avenue, to divert the tracks to it, and to elevate them until a sufficient height was obtained; then to cross the avenue thirty feet above its surface to the elevated coal road, and thence at an elevation of about forty feet to cross the tracks of the railroad. This plan was suggested by the plaintiffs and adopted by the defendants. To carry it into effect it was necessary to purchase private property fronting on the street, to purchase the right to use the coal road, to bridge the avenue and to reconstruct the coal road. This the defendants proceeded to do at an expense of about $40,000. They were then met by this bill denying their right to cross in this manner, because the construction proposed would interfere with the plaintiffs’ right to the exclusive occupation of their ground for railroad purposes, and because the defendants’ right to construct their railway is limited to the highways mentioned in their charter, and upon the grade thereof, and because having located their road they cannot change the location so as to construct the same upon a bridge, and upon private property.

The extent of the interference with the property rights of the plaintiffs is this: on McClure street, on the side opposite to that on which their property is situated, and below the surface, and within the curb line, the foundation of the piers will extend two or three feet beyond the property line; at an elevation of forty feet, a foot walk will extend from two to three feet beyond the property line, and this on the side opposite to their property. On Maple avenue, thirty feet above the surface, and over the middle of the street, there will be an encroachment of a few feet on the theoretical property lines. At the height of forty feet, the structure of the electric railway crosses the line of the tracks of the railroad. Two of these tracks are on a public street; the third has been laid on a right of way since the controversy relating to the crossing arose. The rights of the railroad company were already subject to the rights of the overhanging coal road, which has been reconstructed and placed at a greater height, and will remain between their tracks and those of the electric railway. The court found that the coustruction and operation of ’the overhead crossing will not appreciably increase the risk of accident, but that it will be lessened by the substitution of a steel structure, at a greater height, for a wooden one.

The right of the defendants to diverge from the highway and to construct their railway on property which they had secured for that purpose in order to avoid a grade crossing need not be discussed, in view of the decisions in Rahn Township v. Ry. Co. 167 Pa. 84, and Penna. R. Co. v. Ry. Co., 176 Pa. 559. In the first of these cases it was said that passenger railways under the act of 1889, “ may diverge for a short distance where the conformation of the surface or the position of streams make it necessary in order to avoid discomfort or danger to the traveling public,” and in the latter, that to these reasons “it may be added, to avoid grade crossings, or for any other reason amounting to necessity, or what is the same thing in such matters, great public convenience.”

The appellants have no just ground of complaint, and they are not entitled to the relief asked. They stood by without objection while the tracks of the defendants’ road were laid on Maple avenue and McClure Street. Without objecting to a grade crossing they negotiated with the defendants as to the manner in which it should be made. When their demands had been acceded to they objected to a grade crossing of any kind, for the reason that it was practicable to construct an overhead crossing. When their suggestions as to the overhead crossing had been accepted and acted upon without regard to expense, and the defendants had purchased private property and a right of way, and were proceeding with a construction which will minimize the danger and in no way interfere with the operation of the steam road, they for the first time objected that their property rights were being encroached upon. The injury to their property is infinitesimal, if not purely fanciful. Whatever it may be, they have encouraged and invited it. The granting of an injunction would do them no good, except by crippling, if not destroying, a rival road. It would cause irreparable injury to the defendants and great inconvenience to the public. An injunction was refused in Heilman v. Lebanon and Annville St. Ry. Co., 175 Pa. 188, where there had been a clear invasion of the plaintiff’s rights. The objection first made was that the road had been built without first paying damages, and it was held that the plaintiff having based his objection on that ground impliedly sanctioned the right to build, if his damages were paid, and could not, after the completion of the road, be heard to object to the company’s want of authority. In that case it was said by our Brother Williams: “An injunction is not of right. It will not be issued when, upon a broad consideration of the situation of all the parties in interest, good conscience does not require it.”

The decree is affirmed at the cost of the appellants.