220 Pa. 612 | Pa. | 1908
Opinion by
If the only question involved in this case was the compliance of the street railway company with the ordinance under which it was constructing its lines on certain streets in the city of New Oastle, it is clear complainants would have no standing to ask the intervention of a court of equity. Under the powers of its charter, and with the consent of the municipality, the appellant company enjoyed the right to construct its lines upon the designated streets without compensation to abutting property owners, and such construction, not being an additional servitude on land already dedicated to street purposes, is not the taking of private property within the meaning of the rule which entitles a person who has sustained a special injury to seek redress in equity. If the tracks of the respondent company had been laid in the street proper, that is to say, in the cartway between the curb lines, as clearly intended by the ordinance, the city alone could raise the question of compliance with its provisions: Rafferty v. Traction Co., 147 Pa. 579 ; Provost v. Water Co., 162 Pa. 575. It is earnestly contended that the ordinance did authorize what was attempted to be done in the present case by giving the right to construct such switches, curves, crossovers and turnouts as are necessary for the operation of the railway. These words must be read and understood in connection with the subject-matter of the grant, which was to construct the railway upon the street, and not upon the sidewalk, and the switches, curves, crossovers and turnouts authorized to be constructed are such as may be necessary to the operation of the rail way in the street proper between the curb lines. We therefore hold that the ordinance did not give the right to construct the railway by a curved line over the sidewalk and through the property of the complainants, and that the attempt to do so by making a cut from two and one-half to three feet in depth, and extending into the property of the complainants set apart as a sidewalk at one point eight and one-half feet, is such an invasion of their property rights without lawful authority as equity will enjoin : Thomas v. Ry. Co., 167 Pa. 120.
Decree affirmed at cost of appellant.