258 Pa. 57 | Pa. | 1917
Opinion by
Defendant appeals from a decree of the Court of Common Pleas, directing specific performance of a contract by it to pave certain streets in the Borough of Chanufoersburg, between and adjoining its tracks, with material similar to that used by the borough in paving the remainder of the highway. The validity of the decree depends upon the construction of Section 3 of an ordinance of the municipality, adopted June 23,1902, granting to defendant the right to construct and operate a street railway upon a number of the streets of the borough, subject to the conditions and restrictions therein mentioned.
The section referred to provides, inter alia, that “the said company shall be required, at the time of construction of said railway, between its tracks and for a distance of twenty-four inches outside of each rail, to pave with material or pavements similar to that now in use, or which may in the future be used or adopted by said borough, and keep and maintain the same in good condition, so that driving on, off or across said track or tracks shall be safe and not inconvenient, and be constructed so as not to impede travel.” Section 17 of the ordinance provides that, in case of violation of any of its provisions by the street railway company, “the borough reserves the
Aside from the question of contractual obligation, defendant was under a common law duty to keep the portions of the street occupied by its right of way in good condition and repair: Reading v. United Traction Co., 202 Pa. 571; Reading v. United Traction Co., 215 Pa.
The common law duty on the part of street railways is referred to because of its bearing on the intention of the.parties in their dealings with each other in the
As a further indication of the intent of the borough in granting the franchise, section 15 of the ordinance provides that “nothing contained in this ordinance shall be taken or construed to limit or restrict the Borough of Chambersburg in making and enforcing in the future
The ordinance in question is a grant of a special privilege affecting the general public interests, and in derogation of the right of the public to the full and unobstructed use of the streets. Its provisions must, therefore, be construed strictly against the grantee and liberally in favor of the public, and no privileges or exemptions will^be deemed to have passed unless given in clear and explicit terms: 19 Cyc. 1459; 28 Cyc. 883. Tested by these principles, the conclusion reached by the court below is correct. The ordinance contemplated the use or adoption of a different method of paving, consistent with the growth of the municipality, and the need incident to increased traffic in the future generally, and did not limit that term to the period fixed for completing the work.
This construction of the contract is further supported by the acts of the parties. Under the earlier ordinance, defendant, pursuant to notice from the borough, repaved the portion of the street within its control and supervision. With the contract and this construction of its provisions before them, the ordinance of 1916 was passed, and, upon defendant receiving notice to repave under the later ordinance, it declined to comply with the request solely on the ground of its “present financial condition.” While defendant at this time offers an excuse for not having desired to enter into a controversy with the borough at the time the earlier ordinance was
The jurisdiction of the court to specifically enforce a contract of this kind in lieu of leaving the borough to its remedy by doing the work and suing at law for the cost is amply supported by the case of Patton Township v. Monongahela St. Ry. Co., 226 Pa. 372.
The decree of the lower court is affirmed.