DocketNumber: Appeal, No. 10
Judges: Beaver, Henderson, Morrison, Oklady, Orlad, Porter, Smith
Filed Date: 10/17/1904
Status: Precedential
Modified Date: 11/13/2024
Opinion by
The Pennsylvania Railroad Company filed a bill in equity to enjoin the Parkesburg and Coatesville Street Railway from placing its tracks upon and across an overhead bridge, by which West Bridge street of the borough of Parkesburg, Chester county, is carried across the railroad tracks of the complainant.
The foundation of the action as set forth in the third paragraph of the bill was that the respondent, the street railway company, had not secured the necessary consent of the several municipal authorities and owners of land abutting on the public roads where its railway was proposed tQ be located for such location and construction.
The court found as a fact “ that not only has the defendant failed to show its possession of all the municipal and other essential consents to the construction of the road but on the other hand in respect to one rural abutting property owner and one municipality it is affirmatively proved that consents have not been secured.” The court granted a preliminary injunction, which after a final hearing was made permanent. The defendant appealed-and rests its claim to a reversal of the decree upon the proposition that the complainant did not have the right to inquire as to whether or not the defendant had other consents than those in the borough of Parkesburg. Two questions are raised by the assignments of error : 1. Whether the street railway, not having the consents from all the municipalities and abutting landowners between its charter terminals, can lawfully construct its railway by virtue of the ordinance of the borough of Parkesburg upon the bridge erected and maintained by the railroad company over its railroad on West Bridge street. 2. Is the railroad company a legal complainant to challenge the right of the street railway company ?
In Penna. R. R. Co. v. Montgomery County Passenger Railway, 167 Pa. 62, it was held that a street railway company does not possess the right of eminent domain. It cannot build under its charter alone. It must have the consent of the proper municipal or local authorities or it cannot move. It is not possible for such company to complete its line without the consent of the local authorities of the districts through which it passes and where this is refused in one or more of the municipal or quasi-municipal divisions through which its line runs the building of its proposed road under its charter is an impossibility. See also Rahn Township v. Tamaqua, etc., Street Ry. Co., 167 Pa. 84. In Penna. R. R. Co. v. Turtle Creek
Keeping in mind that it was affirmatively shown that the street railway company did not have consents from at least one municipality and one rural abutting landowner along its route, the foregoing decisions of our Supreme Court must control the case, if there is a proper complainant and the law has not been changed by subsequent decisions. The defendant relies upon North Pennsylvania R. R. Co. v. Inland Traction Co., 205 Pa. 579, but the grounds of complaint in this case are entirely different from those in that one. There the court below found as a fact that “ the defendants (street railway company) ,are lawfully engaged, in the construction of their road, and that they had the consents of the owners of the land on the opposite side of the road from the complainant, and also of the township authorities and of the turnpike company which gives them the rights claimed,” and the Supreme Court specially held that “ the Act of June 19, 1871, P. L. 1360, is not intended for such a case as the appellants present, and cannot be invoked by them, for none of their rights or franchises are invaded. Plaintiffs have no standing to object as no part of their property is taken or encroached upon.”
Assuming that the railroad company is not, at that overhead bridge crossing, “ an abutting landholder to the passenger railway ” (Penna. R. R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559), and further that the bridge over the railroad is a part of the public highway, no matter by whom erected or maintained, yet under the provisions of the act of 1871 it has standing to maintain a bill in equity to question the right of the street-railway to occupy the bridge. As stated
The obligation to maintain the bridge — as a part of West Bridge street — as a safe public highway did not measure its whole duty or property interest in regard to it. It had the right to elevate or lengthen it to provide adequately for the exigencies of its traffic and use of its engines and cars on its tracks as then or subsequently arranged; it was bound to protect the passengers over its road and its employees from defective construction, and to exercise a proper supervision over the maintenance of its abutments, superstructure and approaches to-secure the safety of the traveling public on the bridge proper: Gates v. Penna. R. R. Co., 150 Pa. 50. The extent of the danger from accident from heavy electric cars on the bridge and other causes which could not be anticipated, would depend upon the care and skill used by the street railway company, and over these the steam railway company would not have any direct control. See Northern Central Ry. Co. v. Harrisburg, etc., Electric Ry. Co., 177 Pa. 142.
It is urged that provisions for all these objections could be
The rights of the first occupant of the ground, in pursuance of law, are recognized as superior to those of the new claimant. Every reasonable intendment must be taken in favor of the primarj’- rights of the complainant at the points of the alleged conflict. No actual encroachment upon these rights can be sanctioned or allowed, and in measuring their extent there must be a liberal consideration for the future as well as the existing necessities of the complainant, the use of the existing tracks, the construction of additional ones, and the unembarrassed transaction of all its business: Smethport Railroad Co. v. Pittsburg, etc., Railroad Co., 203 Pa. 176.
The offer to reconstruct and strengthen the bridge, so that it will be safe for transportation and carriage of its cars, does not help the defense if it is without legal authority to enter upon the bridge. The consents of the municipalities and abutting owners were a prerequisite to building any part of the road, and is equivalent to a statutory prohibition against building it without such consents. It is not necessary to trace out
Assuming that the appellants have not physically taken any of the plaintiffs’ property* yet if the plaintiffs have been specially threatened with injury by the plaintiffs’ action, it is entitled to an injunction without proving the amount of damage. The street railway is not on its own land. If not empowered to use the street, it has no more right to construct a street railway on it than any other person: Penna. Railroad Co.’s Appeal, 115 Pa. 514.
The decree of the court below is affirmed.