177 Pa. 371 | Pa. | 1896
Opinion by
The defendant company was incorporated by a special act of assembly approved on the 6th day of April, 1859. There was at that time no system of general laws regulating the creation and defining the duties and obligations of such corporations. We must look therefore to the legislative action by which the new corporation was created for a statement of its powers and privileges, and for the extent to which it was subjected to municipal burdens in excess of those that fall upon all taxpayers alike. Turning to this act we find that the company was required to obtain the consent of councils to the use of the bridge on Bridge street, which was in the line of its prospective railway; -to conform to the established grade of the streets it should occupy; to keep the said streets in “perpetual good repair ” at its own expense; and to be subject to such ordinances as" councils might from -time to time adopt for the establishment of regulations “ in regard to paving, repaving, grading, culverting of, and laying gas and water pipes in and along said streets, and to prevent obstructions thereon.” It was not subjected to existing ordinances regulating the terms upon which the street railways were permitted to occupy the streets of the city, but the legislature laid out its route, named the streets to be occupied, and by virtue of its paramount authority gave to its creature permission to enter upon these streets and construct its line of railway upon terms named by it in the act of incorporation. The city seeks to recover for the cost of repaving portions of certain streets which the defendant was required to keep in good repair. The defendant denies its liability for new paving, while admitting its obligation to repair. The question thus raised depends upon the proper construction of the act of 1859 creating and defining the powers and duties of the defendant company. We are referred by the city in sup
This provision removes all doubt; the street railway, like the drayman, occupies the street subject to municipal control so far as this may become necessary for the public safety, or the prosecution of municipal improvements. The other ground on which a recovery is sought is that the railway was required by the law incorporating it to keep the streets occupied by it in good repair; the phrase to keep the streets in good repair, means to uphold, to maintain or preserve them in good condition ; it presupposes that they are in some fair degree of repair when the obligation to keep them so begins to operate. In this connection it should be noted that the requirement is not that the defendant shall put the streets in good repair but that it
It may sometimes require the restoration of an inclosure or other structure taken down or removed by the maker of the covenant, but in every case it refers to a previously existing condition, the restoration or preservation of which is the purpose of the covenant. This was substantially said as early as McClenahan v. Curwin, 3 Yeates, 362. It is the doctrine of all our cases. What' is now asserted is that the duty to repair includes the duty to replace with a new, an improved and more expensive stjde of pavement whenever the city shall so direct, and Phila. v. Ridge Ave. Ry. Co., 143 Pa. 444, and Phila. v. Thirteenth & Fifteenth Streets Ry. Co., 169 Pa. 269, are cited in support of this proposition. In neither of these cases was the question involved. In the latter case the company was subject to the ordinance of 1857 which expressly required it “ to be at the cost and expense of maintaining, paving and repairing,” the streets