Commonwealth v. Railway Co.

Opinion by

Rice, P. J.,

1. One test to ascertain whether a plea of autrefois acquit be a good bar, is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first: Heikes v. Commonwealth, 26 Pa. 513. Whether a former acquittal was for the same offense depends on the record pleaded, and not on the argument or inference deduced therefrom. If that record shows that the evidence necessary to support a conviction on the present indictment would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit is not sustained: Commonwealth v. Trimmer, 84 Pa. 65; Hilands v. Commonwealth, 114 Pa. 372; Tadrick’s Appeal, 1 Pa. Superior Ct. 555; Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588. This is the appropriate test to be applied in the present case. The question is, whether an acquittal on an indictment charging a railroad company with unlawfully and injuriously entering upon a highway, and constructing and maintaining its railway thereon, so as to utterly obstruct, prevent and impede the free use and passage thereof, is a bar to a prosecution for a failure to construct a new road to take the place of a road lawfully taken and occupied by the railroad company? We are speaking of the occupation of a highway longitudinally.

The foregoing is, we think, a fair statement of the question raised by the first two assignments of error. For, whilst the first count of the former indictment charges that the Allegheny Valley “ Railroad ” Company was in duty bound to reconstruct any portion of any public road that it might be necessary to take in tlie construction of its railroad, it did not charge a neglect of that duty. The gravamen of the charge was that it “unlawfully and injuriously did enter upon the said public road or state road at different points, .... and did then and there take thirty-three (33) feet in width and four and two tenths miles in length and did then and there unlawfully and injuriously construct and place thereon clay, stone and other materials, and cause embankments, fills .... and culverts to be made, and did then and there unlawfully and injuriously place thereon certain rails, ties, tracks, sidings, and did then and there unlawfully and injuriously construct thereon depots, station houses so as to utterly obstruct, prevent and impede the free use and passage,” etc.; also that it unlawfully and injuriously permitted these obstructions to remain in the highway down to the time of the finding of the bill. This was an indictment for a common-law nuisance, not an indictment for neglect of its duty to reconstruct the road taken. If we are correct in this conclusion, the answer to the question above stated is plain.

Where an act gave a railroad company power to construct its railroad on a public road and provided that if in its construction it should be necessary “ to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the original road,” it was held, first, that this did not require that the making of the new road shall precede the occupying of the old road; second, that the mere occupancy longitudinally of a public road by a railroad company having such authority and the consequent obstruction of public travel do not constitute a nuisance, and if no more be charged in the indictment there can be no conviction, even though it be proved on the trial that the company had neglected to provide a new road in lieu of the one taken: Danville, etc., R. R. Co. v. Commonwealth, 73 Pa. 29. The question whether or not the railroad company could have been convicted for its failure to reconstruct the road on proper ground and in a suitable manner did not arise in that case, because that was not the offense charged. It was therefore reserved for future consideration. It was distinctly raised in the later case of Pittsburg, etc., Ry. Co. v. Commonwealth, 101 Pa. 192, and was decided in the affirmative. It is unnecessary to cite other cases. We regard it as well settled that evidence that would be sufficient to convict a railroad company of the distinct offense of neglecting to provide a new road in lieu of a road lawfully taken would be insufficient to convict it of the offense of unlawfully entering upon and obstructing a highway. They are two distinct offenses; the former is not merely a constituent element of the latter. The principle, that an acquittal of an offense is a bar to a subsequent conviction of an offense which was a constituent element of the former, and of which a conviction might have been had on the former indictment, does not apply. For these reasons, the first two assignments of error are overruled.

2. The defendant’s second proposition is thus stated by counsel : The Allegheny Valley “ Railroad ” Company in the year 1852, the time of the alleged taking of this road, had the right to take the same under its power of eminent domain, and there was no duty imposed upon it to reconstruct a new road to take the place thereof; therefore, neither it nor its successor, the Allegheny Valley “ Railway ” Company was guilty of an indictable offense in faffing to, construct a new road. In discussing this proposition it will be well to consider, first, the rights and duties of the.Allegheny Valley “Railroad” Company,.second, the duty of the Allegheny Valley “ Railway ” Company, its successor, this defendant.

The former company was incorporated under the name of the Pittsburg, Kittanning and Warren Railroad Company by the Act of April 4, 1887, P. L. 345.

. Section 6 provided, that “ when the route of said railroad, or any of its branches shall be determined upon by the said company, it. shall be lawful for said company, their agents, officers, engineers, contractors and servants at any time to enter upon, take possession of and use any such lands, buildings and enclosures as may be necessary for carrying into effect the purposes of this act.”

.Section 8 provided: “ The said railroad shall be so constructed by the said' company, as not to impede the free use and passage of any public or private roads which they may find expedient to intersect but it shall be- the duty of said company to cause to be made sufficient causeways -over any such roads, so intersected, as soon as expedient, so as to enable all persons and vehicles to pass over the railroad with safety and convenience, and to maintain such causeways in good repair,” etc.

A supplement approved May 8, 1854, P. L. 648 provided, “that if the Allegheny Valley Railroad Company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith, at their proper expense, on the most favorable loca-, tion, and in as perfect a manner as the original, road.”

This is all the legislation bearing directly upon the question under consideration that need be noticed. The defendant’s, counsel contend that the act of 1854 could not have the retroactive effect to impose a duty upon the company to reconstruct, a road lawfully taken by it prior to that time. For the purposes of this discussion only, this may be conceded. But then the question arises, did the act of 1837 give it power to occupy a public road longitudinally ? That the legislature may authorize a railroad .company to lay its tracks on a public street is-not questioned, but all the authorities agree that if this power, is not given in express words or by necessary implication, it. does not exist. It was not given in the act of 1887 in express words. It was given by implication so far as the intersection of roads was concerned, and the commonwealth’s counsel insist that it was limited to such occupancy. They are supported in this contention by the decision of the Supreme Court in Pennsylvania R. Co.’s Appeal, 115 Pa. 514. There one of the questions considered was whether the defendant company had the right to lay its tracks on the streets of a borough under the provisions of the charter of the Portsmouth, etc., R. R. Co. The provisions referred to did not differ in any essential particular from those of the act of 1837. Mr. Justice Tbunkey, delivering the opinion of the court, said: “ The course of legislation in Pennsylvania, relative to railroads, shows continuous care to protect the public roads from the grasp of railroad companies, except upon terms that they render an equivalent to the public. A fair example is the legislation upon this point for the Pennsylvania Railroad Company. At first, the Act of April 13,1846, P. L. 312, provided that when necessary to cross or intersect any established road or way, said company should so construct their road as not to impede the passage or transportation of persons or property along said established road or way. This being the only provision in the act of incorporation relative to public roads, in face thereof, it would have been exceedingly difficult, in accordance with the rules of interpretation, to have construed the general terms authorizing the taking of land, to authorize the taking of an established road and laying the track thereon longitudinally. Therefore, supplemental acts were enacted, providing that when said company should find it necessary to change the site of any turnpike or public road, or any street, lane or alley, in any town, borough, or city, they should reconstruct the same forthwith, on the most favorable location, and in as perfect a manner as the original road. . . . It has been said with reference to charters of incorporation, that, ‘whatever is doubtful is decisively certain against the corporation.’ There seems no occasion to apply that rule in this case. Nothing in the statutes relating to the powers of the Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company, shows an intendment that the company should have the right to lay its tracks lengthwise on other public highways. Of course, it would be necessary in the construction of the railroad to intersect and cross other highways, and the charter compels the company to make and keep in repair good and sufficient passages at such crossings. This express provision left no room for doubt, as to any kind of occupancy of public roads not mentioned. What is not plainly expressed, or necessarily implied, is not granted.” We have felt justified in making this extended quotation because it covers the whole ground and renders further discussion by us unnecessary. We agree, therefore, with the commonwealth’s counsel, that the only justification the Allegheny Valley “ Railroad ” Company had for the occupation of this highway longitudinally was the supplement of 1854, and this showed its duty to provide a new road in lieu of the road, or portions thereof, taken. This was a continuing duty and devolved upon the defendant company, the successor of the Allegheny Valley “ Railroad” Company: Act of May 81, 1887, P. L. 278. Where a railroad company has succeeded by purchase to the franchises, etc., of another company which originally occupied a highway, it becomes subject to the duties and liabilities relating thereto which rested upon the original company, and amongst them the duty to reconstruct the highway injuriously occupied by it: Commonwealth v. Railroad Co., 188 Pa. 58. See also Commonwealth v. Penna. R. Co., 117 Pa. 637.

3. The defendant’s third proposition is that the statute of limitations is a bar to this prosecution, or at all events the commonwealth has been guilty of such laches as to bar a conviction.

To an indictment against a railroad company for obstructing a turnpike by the construction and maintenance of its railroad over the same the defendant pleaded specially, inter alia, that the railroad as there constructed had been in use for twenty-four years. In affirming the action of the quarter sessions in overruling the special plea, the Supreme Court, by Mebcub, J., said: “ The statute of limitations runs not against the commonwealth. Twenty-four years of continued nuisance creates no presumption of a grant therefrom to maintain the same: ” Northern Central Railway Co. v. Commonwealth, 90 Pa. 300.

A railroad company, whose charter provided that if it should be necessary to change the site of any road, it should cause the same to be reconstructed forthwith, occupied a portion of a public highway with a wall and an embankment on which to support its own roadbed, and subsequently, before its railroad was completed and opened for travel, leased its franchises and privileges to another railroad company which completed and operated the same. Twenty-seven years after the original taking, and twenty-three years after the railroad was openéd for travel an indictment was found for neglecting to construct a new road upon the most favorable location, as required by statute. It was argued, that even if the statute of limitations was not a bar, yet the acquiescence for over twenty-five years' interposed a serious obstacle to a criminal prosecution. It was nevertheless held, reversing the court below, that an indictment and conviction of- the lessee company could be sustained: Commonwealth v. Penna. P. Co., 117 Pa. 637.

A railroad company in the construction of its roadbed in 1865 so encroached upon a turnpike as to injure it materially. Thereupon the turnpike company abandoned the road, and from that time it was maintained by the township authorities. In 1887 proceedings by mandamus were instituted by them to compel the railroad company which had succeeded by purchase to the franchises, etc., of the original company to reconstruct the road. On the trial of the issue raised by the pleadings the court was requested to charge: “ That although the statute of limitations will not run against the commonwealth, it will run against a municipal corporation; and as the plaintiffs’ cause of action, if any, was complete on the construction of the road, which was more than twenty-one years before the commencement of this suit, the action is barred by the statute of limitations.” This was answered in the negative, the court adding, the statute of limitations does not run against the public. The court also charged as follows : “ There are some cases, where, after great lapse of time, and after improvements have been honestly made upon the faith of appearances, and when parties could not have learned the true situation, and possession thus taken has been acquiesced in for more than twenty-one years, an equitable estoppel would be allowed, but, in my opinion, this is not one of these cases. The defendants purchased the franchise at sheriff’s sale, and they took it cum onere ; that is, with its burdens and subject to all the duties and liabilities existing .against the original road constructing the same.” - These jnstructions were held not to be erroneous: Commonwealth v. R. R. Co., 138 Pa. 58.

These cases are directly in point; they are plainly distinguishable from Commonwealth v. Bala, etc., Turnpike Co., 153 Pa. 47, and the class of cases 'to which it belongs, and seem to us to be conclusive against the defendant’s position. Our conclusion is that the statutory duty of a railroad company to reconstruct a road taken by it is a continuing duty; that if not performed by it, it devolves upon the railroad company which succeeds by purchase to its franchises and privileges, and that mere lapse of time will not absolve it from this duty nor bar the commonwealth.

4. The offense of which the company is convicted is not for taking possession of the public highway in the construction of its railroad, but for the disregard of its duty to forthwith reconstruct, so as to provide a suitable highway in lieu of the one taken. It cannot, therefore, be compelled by sentence in this case, to either remove the obstruction from the old road or to construct a new one. The sentence can go no further than to punish for the offense committed. That offense is the neglect to construct within a reasonable time. The performance of that duty cannot be specifically enforced by sentence on this conviction; P. V. & C. Ry. Co. v. Commonwealth, 101 Pa. 192. Under this ruling that portion of the sentence requiring the defendant to abate the nuisance must be stricken out.

The sentence is modified and amended by striking therefrom all excepting the fine of $5.00 and the costs, and as thus amended and modified, the judgment is affirmed.