153 A. 350 | Pa. | 1930
Sears, Roebuck Company has an extensive retail merchandise establishment in the thirty-fifth ward of Philadelphia, having a floor space of forty-three acres and approximately five thousand employees. It handles fourteen thousand different articles of merchandise and has one million seven hundred and fifty thousand customers residing in several states, with whom its business is transacted largely by mail orders. Its merchandise when purchased is shipped in, and when sold is shipped out, largely by rail. This makes an enormous freight and mail order business, amounting to many thousands of car loads annually. The Pennsylvania Railroad affords access to this establishment by its Philadephia and Bustleton branch and, until 1929, the Reading Railroad also had access to it by its Frankford branch. In the year last mentioned Sears, Roebuck Company, in erecting a large addition to its plant, destroyed the connection theretofore existing with the Reading Railroad. To renew the same, the latter, by proper corporate action, decided to construct a lateral or branch road some twenty-six hundred feet in length, which would appropriate ninety-one one-hundredths of an acre of the land of the plaintiff, C. O. Struse Sons Company. The Reading Railroad, defendant, being unable to agree with the Struse Company as to the damages, filed a bond and petition for appointment of viewers. Thereupon plaintiff filed this bill, under the Act of June 19, 1871, P. L. 360, to restrain *214 the construction of the proposed branch on the averment that it was not a branch for public use, but a mere private siding for the accommodation of Sears, Roebuck Company. A responsive answer, denying this averment, was filed and testimony taken. The chancellor found all the facts in favor of the defendant and recommended a dismissal of the bill, which in due course the court in banc did and plaintiff has appealed.
The record discloses nothing to justify disturbing the decree. The land taken is vacant property and that such taking will cut off plaintiff's frontage on the Pennsylvania Railroad is a matter that can be adjusted before the viewers. It will afford plaintiff a direct connection with the Reading Railroad and the latter agrees also to give plaintiff a connection with the Pennsylvania Railroad. Plaintiff, although having a plot of some thirty-eight acres of land and being in the brick-making business, has never sought connection with the latter. The branch in question will also occupy land of the Manor Real Estate Trust Company and that of the Pennsylvania Railroad and will enable the two railroads to make a grade connection, impossible before by reason of the fact that the Reading track was carried over that of the Pennsylvania. At present the branch will not connect with any other business plant but will afford opportunity therefor.
The Sears, Roebuck Company plant is an established terminal for the railway mail service, known as Sears Station, where seventy-five postal employees are employed to handle outgoing parcels post. In the year 1928, before the old connection was destroyed, the defendant carried for Sears, Roebuck Company approximately four million consignments of merchandise, the gross earnings from which were $709,466.27. This business was with hundreds of thousands of customers. Furthermore, the defendant has transfer facilities with sixty-five railroads and reaches some points not accessible to the Pennsylvania Railroad. Manifestly *215 a branch which will give an interchange of facilities with the railroad last mentioned and necessary to the carrying on of such a business as above stated cannot be treated as a mere private siding. It will accommodate not only Sears, Roebuck Company, but a large percentage of the public.
The right of a railway company to construct branches is expressly given by statute; as to that, the Act of July 19, 1917, P. L. 1123, provides: "That any railroad company heretofore or hereafter incorporated under the laws of this Commonwealth, or jointly under the laws of this Commonwealth and of any other state or states, may construct branches from any point or points on its railroad which, in the judgment of its board of directors, are necessary to furnish adequate transportation facilities for, or to accommodate the trade or travel of, the public. In the construction and operation of such branches, the companies constructing the same shall be entitled to avail themselves of the rights and powers conferred upon them by the laws of this Commonwealth, in respect to the construction and operation of their railroads, and shall be subject to all obligations, duties and requirements now or hereafter to be imposed upon them by such laws." This is largely a reënactment of section 8 of the General Railroad Act of April 4, 1868, P. L. 62. The right to build branch railroads thereunder has been many times affirmed by this court. One of the later cases is Pioneer Coal Co. v. Cherrytree D. R. R. Co.,
The burden is upon plaintiff who challenges the right of a railroad to construct its line or a branch thereof to show clearly that the proposed construction is not for a public use: Pioneer Coal Co. v. Cherrytree D. R. R. Co., supra; Deemor v. Bells Run Railroad Company,
The decree is affirmed and the appeal is dismissed at the cost of appellant.
