Becker v. Lebanon & Myerstown Street Railway Co.
41 A. 612
Pa.
1898
Check Treatment

Opinion by

Mr. Justice Mitchell,

The learned judge below found that the defendant railway company had constructed its track on the turnpike in'’front of *494plaintiff’s land, without legal authority, though not in intentional violation of law. This is now conceded by defendant itself, and is the basis of plaintiff’s bill.

Appellant plants himself firmly on his legal right, and if he were in a court of law his position would be incontestable. But he has come into a.court of equity asking its aid by injunction which is of grace and not of right. The court below refused relief in this form, upon the well settled equitable principle that an injunction will not be awarded where the benefit to the complainant is entirely disproportionate to the injury to the respondent. This is the ground of the decision and raises the only question we have to consider.

By the findings it appears that the work of location and construction of the railway was commenced in the summer of 1893, but plaintiff’s bill was filed and served before the company’s workmen had arrived at the plaintiff’s land. No application however was made for a preliminary injunction, and the road was in full operation in October, 1893, when defendant’s answer was filed. Any injunction thereafter applied for and granted would necessarily be mandatory and destructive in character, but nevertheless with the case thus practically at issue, no further step was taken by plaintiff to bring it to a hearing until March, 1896, nearly two years and a half later. It was held by the Superior Court in Becker v. Ry. Co., 4 Pa. Superior Ct. 372, that the bill could not properly be dismissed for want of prosecution, after a motion for hearing had been actually made, even though late, and the learned judge below conformed to this ruling. But the delay is not without strong’ bearing on plaintiff’s right to the aid of equity. Vigilantibus jura subveniunt is a maxim especially applicable to the remedy by. injunction. On the change of conditions which took place during this period of delay the court below found specially as follows: “ The community through which the railway passes is thickly settled, the travel is considerable, . . . and the convenience of the public .is largely promoted by the existence of this means of travel. The service has been continuously maintained since the road was built, and a large section of the community has grown accustomed to its convenience and comfort. It has become an important means of transportation for the public along its line, and for the towns which it connects. The' *495interruption of its traffic would inflict great inconvenience upon the public and a serious loss upon the company.” He further found that while the element of injury to the plaintiff was present, yet the evidence showed clearly that it was “ not. considerable in amount, and may readily be compensated in damages.”

It would be difficult to find a clearer case for the application of the equitable rule. The precedents in our own state amply sustain the conclusion reached by the learned judge below. It is sufficient to refer to the late cases on this very subject of street railways : Heilman v. Ry. Co., 175 Pa. 188; Heilman et al. v. Ry. Co., 180 Pa. 627.

The appellant relies upon Penna. R. R. Co. v. Montgomery Co. Ry. Co., 167 Pa. 62, and the group of cases in the same volume which followed it. But they were decided on the legal rights of the parties, asserted and enforced without undue delay. None of them raised the question of the chancellor’s discretion. In the present case the appellant’s legal rights are conceded, and the decision turns on the just applicability of the equitable remedy sought. As said by our Brother Williams in Heilman et al. v. Ry. Co., 180 Pa. 627, already cited, the chancellor “ does that which in good conscience he ought to do. The question in each case must depend upon the circumstances out of which it grows, and requires the exercise of judgment in determining' the equities involved.” In view of the learned judge’s findings in the present ease, on the loss to the defendant, the inconvenience to the public, the smallness of the injury to the complainant and its easy compensability in money, he could scarcely have reached any other conclusion than that complainant, however clear his right, should be left to his remedy in damages.

The appellant further argues that under the Act of June 19, 1871, P. L. 1861, an injunction is no longer of .grace, but of right, when a corporation is acting in excess of its franchise to the injury of a complainant. The language of the act is “it shall be the duty of the court .... to examine, inquire and ascertain whether such corporation does in fact possess the right or franchise to do the act from which such alleged injury to private rights or to the rights and franchises of other corporations results; and if such rights or franchises have not *496been conferred upon such corporations such courts, if exercising equitable power, shall, by injunction, at suit of the private parties or other corporations, restrain such, injurious acts.” But this act, if it does anything more than declare the previous law, was intended to reinforce and make clearer the power of the courts to inquire into the rights and franchises of corporations in suits by private individuals, and perhaps in some degree to extend the class of cases in which such inquiry is open to suitors without the intervention of the commonwealth. It was not intended to do away with or change the general principles on which equitable relief is administered. Notwithstanding, therefore, the use of the imperative “ shall,” the injunction is not to be granted unless a proper case for injunction be made out, in accordance with the principles and practice of equity. The word “ shall ” when used by the legislature to a court is usually a grant of authority and means “may,” and even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power.

Decree affirmed, costs of this appeal to be paid by appellant.