Allegh. V. R. v. Pittsb. Junction R.

122 Pa. 511 | Pa. | 1886

Lead Opinion

Opinion,

Mr. Justice Paxson :

This case has drifted from its moorings. Originally it was a bill filed in the court below by the Allegheny Valley Railroad Company against the Pittsburgh Junction Railroad Company, to prevent said company from taking, under the right of eminent domain, a portion of the property of the former company.

The plaintiff is a railroad corporation, owning and operating a line of railroad extending from Pittsburgh, to Oil City, and, by means of various connections, to Buffalo, in the state of New York, and has owned and operated the said line for upward^ of thirty years. The defendant is a railroad corporation created and organized under the act of April 4, 1868, and its supplements. The plaintiff acquired the property in dispute long before the organization of the latter company, and uses it for the purposes of its yard. It is occupied with numerous tracks, coal trestles, ice house, round-house, and other buildings convenient and necessary for its business. The defendant is about constructing a railroad from its main line, at the foot of Thirty-sixth street, in the city of Pittsburgh, extending along the left bank of the Allegheny river to a point at or near the mouth of Negley’s run, and also a like branch along the left bank of the Allegheny to a point at or near the foot of Eleventh street in said city. In pursuance of this object it surveyed and located a route through the plaintiff’s yard, cutting through the coal yard, repair yard, and about twenty-four feet of the coal chute. Not being able to agree with the plaintiff the defendant filed its bond in the court below in accordance with the act of assembly. Whereupon the plaintiff filed this bill to restrain defendant from further proceeding to lay its track upon the location in question. The court below granted a preliminary injunction, and, upon final hearing, made the injunction perpetual.

Upon the hearing before the master the defendant abandoned its first location, and without any action on the part of its board of directors proceeded to re-locate its road through plaintiff’s yard, with a view to obviate some.of the objections of the plaintiff and lessen the injury and inconvenience to the business of the latter. The master proceeded to re-locate the road in accordance with the plan submitted by the defendant. He held that such action was justified under the act of June 19, 1871, which provides that if, “in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall, by their process, prevent a crossing at grade.” Upon exceptions to the master’s report the court below held that the act of 1871 had no application, for the reason that it referred to railroad crossings alone, while this was not a case of crossing at all in the proper sense of the term. In this we think the learned judge was clearly right. The act of 1871 relates “to crossings of lines of railroads by other railroads.” There was no attempt here to cross the line of plaintiff’s road. It was an attempt to run through the plaintiff’s yard, and the crossing of some of its yard tracks and switches which were merely incident to the use of its main line. As was well observed by the court below: “ The attempt is not simply to cross the yard and tracks with a common use, but absolutely to take from plaintiff a portion of their yard for the sole use of the defendant. The issue is not in what mode the defendant should cross plaintiff’s property, but solely whether it can cross at all. The right of a railroad company to corporate rights being established or admitted, the right to cross, if necessary or convenient in reaching its terminus, is absolute, and the court can only ascertain the mode. But the court must inquire and ascertain whether unnecessary injury will be done by crossing in the manner proposed, and also whether a grade crossing can reasonably be avoided, and decree accordingly: P. & C. Railroad Co. v. S. W. P. Railroad Co., 77 Pa. 173. No such issue was made in this case, and nothing suggested in the decree recommended by the master determines these questions.”

We might well stop here and affirm this decree. We are in no doubt, however, as to the main question. While the franchises of a corporation are property, and may be taken under the power of eminént domain, yet when property has been already taken for one public use, by a corporation, it cannot be taken by another corporation for another use, except by express grant or by necessary implication. The principle is well settled that “the lands or right-of-way occupied by one railroad company for its corporate purposes cannot be taken as right-of-way by another railroad company, except for mere crossings, and then only for crossing purposes, and not for exclusive occupancy:” Pennsylvania Railroad Company’s Appeal, 93 Pa. 150; Cake v. P. & E. Railroad Co., 87 Pa. 307; Housatonic Railroad Co. v. L. & H. R. Railroad Co., 118 Mass. 391; Boston and M. Railroad Co. v. Lowell Railroad Co., 124 Mass. 368; Prospect Park and Coney Island Railroad Co. v. Williamson, 91 N. Y. 552; St. Paul Union Depot v. City of St. Paul, 30 Minn. 359; Central City Horse R. W. Co. v. Fort C. R. W. Co., 31 Ill. 523; Hicock v. Hine, 23 Ohio 523. This rule is not confined to the track or right of way of the company, but also to the ground occupied by all the appliances necessary for the successful operation of the road: P. W. & B. Railroad Co. v. Williams, 54 Pa. 103; Dublin and Drogheda Railroad Co. v. Navan Railroad Co., Irish Reports, 5 Equity, 393; Prospect Park and Coney Island R. W. Co. v. Williamson, supra; St. Paul Union Depot v. City of St. Paul, supra. In C. & P. Railroad Co. v. Speer, 56 Pa. 325, it was said by Justice Agnew: “A power to build side tracks is essential to the purpose and use of the road. A power to build a railroad of a single track, without the means of passing the trains or of leaving the track for the shifting of cars, or of repairs at the shops and yards, and without standing room for the cars not in motion, would be clearly wanting in all that is necessary to safety, convenience, and utility, and would be vain and nugatory.” See, also, Boston and Maine R. Co. v. Lowell, supra.

It was urged, however, on the part of the defendant, that the yard of the plaintiff is larger than is necessary for its present use, and that it could be so re-arranged as to accommodate defendant’s tracks and without serious detriment to the plaintiff, either in the present or the future. The evidence upon this point is conflicting, and we will not discuss it. The plaintiff contends that the arrangements of its yard cannot be changed without inconvenience and loss in the handling of its business, and that its area is not greater than will be required in the near future. We are of opinion that a railroad company has a right to consider the needs of the future, and to construct its road and make its plans with reference to those future needs. Upon this point the language of McKennan, J., in L. S. & M. S. R. Co. v. N. Y. C. & St. Louis R. Co., 8 Fed. R. 858, is sound and sensible: “ Every reasonable intendment must be taken in favor of the primary 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, the convenient storage of its freight at all seasons, and the unembarrassed transaction of all its business.”

We are not embarrassed with the question that would arise if the defendant company could not build its road without laying its track through the plaintiff’s yard. The location claimed for defendant is a matter of. economy, not of necessity. It can construct its road and reach its terminus by another route. It is true, it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through the plaintiff’s yard and cripple its facilities for handling its business, merely to save money. Upon this point the language of our brother Gordon, in Pennsylvania Railroad Company’s Appeal, supra, is so clear and forcible that I may well repeat it here: “ This plea of necessity is so frequently used to cover infractions of both public and private rights, that, prima facie, it is suspicious, and must be closely scrutinized, especially when it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now of universal acceptation, that all acts of incorporation and acts extending corporate privileges are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken as withheld. This rule is to be taken in all its rigor when the attempt is so to construe a corporate grant as to interfere with a previous grant of the same kind: Packer v. The Railroad, 19 Pa. 211. It is true that a franchise is property, and as such may be taken by a corporation having the right of eminent domain; but in favor of such right there can be no implication, unless it arises from a necessity so absolute that, without it, the grant itself would be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity such as this to be used as an excuse for the interference with or extinction of previously granted franchises would be to subject these important legislative grants to destruction on a mere pretence, in fact, at the will of the holder of the latest franchise.”

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

Trunkey, Sterrett and Clark, JJ., dissent.

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Dissenting Opinion

Mr. Justice TrUjNKEY:

Dissenting opinion,

I shall only indicate the ground of dissent.

This decree restrains the appellant from entering upon or in anywise interfering with the property of the appellee, situate between Forty-third and Forty-seventh streets, and from entering upon, working upon, or in anywise interfering with any property of the appellee between Thirty-ninth and Fortieth streets, and on the south side of low-water mark. It absolutely restrains the appellant from entering upon any part of said land to locate its road. It denies the appellant’s right, even upon payment of damages or giving security therefor. The bill prayed for such decree. It denied the appellant’s, right to enter at all. The opinion of the court below shows the decree was intended to deny the right. That decree is now affirmed, and it matters not whether the location ’ of the route was shifted after the filing of the bill, for the entry anywhere is restrained.

In this case the testimony clearly shows, and it was so found by the master, that there is ample room next the river where the appellant could lay its tracks without material injury to the property of the appellee. The inconvenience to and cost of changes by the appellee could be compensated in damages. The prudent appropriation of a parcel of land, extending from low-water mark on the river to the hillside, by the appellant, the whole of which land is not necessary for the uses of its road, ought not to bar the construction of another railway in, the valley by a company subsequently chartered.