58 Pa. 253 | Pa. | 1868
The opinion of the court was delivered, May 7th 1868, by
It admits of no controversy, that the city is armed with ample authority to remove from its streets and thoroughfares every obstruction or impediment to their free use-as such by the public, unless legalized by the authority of law, and whether that is the case in the instance in hand, is the question now for determiiiation.
On the 18th of May 1863, an ordinance was passed by councils, directing the proper authorities, among other things, to remove-
From the bill we learn, that the company claims to restrain the city, on the ground that pursuant to the Act of 10th May 1850, the Commonwealth sold and conveyed to them all that portion of the Columbia Railroad, lying between the foot of the inclined plane on the west side of the Schuylkill, and its intersection at Vine and Broad streets, at the north line of the city; and they aver in their bill, that “ one of the leading motives inducing the complainants to purchase the said bridge (over the Schuylkill) and railroad, and to pay a large sum therefor, was in consideration of the right of continuing the connection which had long theretofore been made, and in use between the said railroad so purchased, and the railroad so built by the city ; so that they the plaintiffs could, in their cars, and without transhipment, deliver coal (in which traffic they were chiefly engaged), lime, lumber, and other freight along Broad street, and by means of the Southwark railroad, to the Delaware river, and to the Philadelphia, Wilmington and Baltimore Railroad.” And they further aver, “ that the said purchase was made, and a large portion of the said consideration-money paid upon the faith of the existence and continuance of the said right.”
It will be perceived from this, that the plaintiffs do not proceed on the ground of any express contract on the part of the city to maintain this road for their benefit as assignees of the portion of the state road which they purchased, but rather on the ground of an equitable right, resulting from the previous use of it by the ■state, and the disadvantage it would be to them to be cut off from the warehouses and depcits established on Broad street along the line of the city and Southwark railroads, and from the Broad street connection with the Philadelphia, Wilmington and Baltimore Railroad. Treating the city as a party capable of acting and being bound by contract, or estoppel, in the absence of the former, we must look to the latter alone as the foundation of the plaintiffs’ claim.
We inquire, therefore, first; has the city done any act which
The road in question was built exclusively at the expense of the city, on one of its main streets, over which the state did not exercise sovereign power to devote it to the use of a railroad, and of which we are not shown she ever attempted the exercise in this connection. In March 1831, the state resolved to complete, as soon as practicable, a railroad, “ beginning at the intersection of Vine and Broad streets, at the city of Philadelphia, and thence extending to the end of the canal basin at Columbia, in the county of Lancaster, a distance of eighty and three-fourths miles,” twenty of which, at the Philadelphia end of the line, to be finished first and equipped. The object of this undertaking was the completion of the cherished project of the state, to construct a great line of improvement by canal and railroads between the Delaware river at Philadelphia and the Ohio at Pittsburg. In the accomplishment of the main object, secondary and subordinate purposes very clearly appear, one of which was to benefit Philadelphia by furnishing greater facilities for trade and intercourse between the city and surrounding country, and as early as the completion of the twenty miles would permit. Another was to provide for conveying that trade into the heart of the city, the policy of the state being not to incur the expense or difficulty of entering with their road into the city limits, definitely fixing its terminus at the intersection of Vine and Broad streets on the north line of the then city. We are bound, I think, to consider the second proviso of the act in the light of this view of the legislature. It reads thus:—
“ And provided also, That before the canal commissioners shall contract for any part of the railroad between the western shore of the river Schuylkill, and the intersection of Vine and Broad streets, the mayor, aldermen and citizens, by their proper authorities, shall engage to construct and continue the railroad from the intersection of Vine and Broad streets, to Cedar street;” and the city was further authorized to make other connections with the state road by other railroads besides that on Broad street with the right applicable to all such “ to charge and receive the same tolls as may be charged on the Pennsylvania Railroad according to distance.” It seems too evident for controversy, that this proposition, when agreed to and complied with, at the sole cost of the city, would constitute as complete an ownership in the city of the road so built, as could be conceived of under any grant of a franchise to any company whatever. The proposition was accepted by the free resolve of the city, and the road was in due time constructed, at its own1 expense, over a street in the undisputed jurisdiction of the city, and the tolls authorized to be taken were received by the.city and placed in its treasury. It was therefore
It has been argued interchangeably, sometimes, that this undertaking was in consideration of the building by the state of the Philadelphia and Columbia Railroad; sometimes, in consideration of the construction of a road to the west side of Schuylkill; and sometimes, in consideration of the' state’s fixing the terminus of
their line of road at the intersection so often mentioned. There is nothing in the act to give countenance to these theories. The. state had unconditionally, and alone by the exercise of her sovereign will, determined on building a railroad between Philadelphia and Columbia, and under the same impulse fixed its eastern terminus. The canal commissioners were invested with no authority to change the legislative resolve in regard to either of these particulars, whether the city assented or not. They might delay contracting for building the end of the line until that determination was ascertained. What course the state would have ultimately pursued, if the city had refused, it is not necessary to speculate about. In view of the great advantages to be derived from the completion of the contemplated road to the city, in securing the vast trade of the interior and the West, and of the Ohio and Mississippi rivers and tributaries, no thought of any but one result could have entered the legislative mind in regard to what the city would do. The state, therefore, invited it to undertake to continue the road which she had resolved .to build, into its limits at its own cost and for its own benefit. Neither contract nor sovereign authority was exerted to produce the result. It was produced solely in view of the contemplated advantages expected to be derived from the construction and use of the entire line undertaken by the state. To suppose the inducement to have been the construction of a railroad to the west side of Schuylkill, would be scarcely less than to ignore the intelligence of the city and legislature both.
I freely concede that the acceptance of the proposition by the city and its execution, implied that the cars from the state road should have the right of passage over it on the terms of paying toll as long as the state desired its use. This was the original design. This, of course, while it constituted the city road a portion of the line of the state road, did not constitute it a part of that road. It was an independent road in every other respect, if the cost of construction and the right to its earnings could make it so. It was constructed solely under the inducement of the advantages to be derived from the state railroads, and no other. The city was willing for that, and figuratively speaking, might be desirous to open its gates to the vast and varied commerce of the interior and boundless West, promised by the completion of the state road, and hold quite a different opinion in regard
We have conceded that the city was bound to maintain its Broad street railroad, as long as it was needed and used for the purposes of its original construction. This is not' to be doubted. But in 1849 the legislature passed an act to avoid the inclined plane on the west side of the Schuylkill, and to construct a new road to supersede the old thence into the city. The new road was built, and it carried the state railroad, the Philadelphia and Columbia Kailroad, into the city across Market street bridge, and down that street by and with the consent and co-operation of the city authorities, into the very heart of the city, and there it remains. This severed all connection between the state and city roads. The latter was no longer possible to be used in the purposes of its creation. The city was therefore undoubtedly released from its further maintenance for that purpose; and that that purpose was, as I have already more than once said, to extend the state railroad into the city, is palpable on the face of the Act of Assembly of March 1831, and of the resolves of the city authorities and acts of the canal commissioners referred to in.the plaintiffs’ bill, of which, by the recital thereof, the plaintiffs cannot well claim to have been ignorant. I cannot therefore see anything in which the plaintiffs were invited to place their confidence and faith that the city was bound, or would maintain its railroad on Broad street for their use and convenience. The object and purposes of its construction were subserved and notoriously ended. It was thenceforth an independent road, the property of the city; and as nothing like a contract relation existed between the plaintiffs and the city in regard to its maintenance, and as it was an independent road in the outset, subject only to a running connection and use by the state, I am utterly at a loss thus far, at least, to discover any equity on the part of the plaintiffs to interfere with the city in exercising its rights of proprietorship in the road, and to remove it if it chooses.
Is there anything in the Act of 10th of May 1850, authorizing the sale of that portion of the state railroad from the foot of the inclined plane to'the intersection at Vine and Broad streets, which changes this aspect ? By § 39 of the act, the canal commissioners
This act was the authority and warrant of the canal commissioners to make the sale, and what to sell. They could not amplify it. Private agency could go no farther, and official agency is never more liberally expounded. As to such, the rule is strict construction. This is elementary law. The property designed to be sold is very explicitly described in the Act of Assembly, namely, all that part of the Philadelphia and Columbia Railroad east of the inclined plane — the real estate, and all the old materials on that portion of the road, rendered useless by the change of the road. There is not a word about rights or privileges in the city road to be found in the act. The state did not, and could not in common honesty, claim any. She had no claim to it by virtue of expenditures or by contract, and she offered none for sale. The only right she had was in its serviency, which had ceased. The conveyance by the canal commissioners to the plaintiffs, refers itself to the authority of the Act of Assembly, and that was necessarily the measure and extent of title which was to pass by the conveyance. The plaintiffs deceived themselves if they expected more. The word “ appurtenances” used in the'deed was not sufficient to pass any interest in the city railroad as insisted upon. One entire railroad will not pass by the word “ appurtenance” to another railroad, any more than one tract of land would pass as appurtenant to another. But the words of the conveyance exclude all room for cavil on this point. After describing the subject of the grant, the words are, “ together with all the railroad tracks, turnouts and sidelings and appurtenances thereunto belonging or appertaining, * * * from the foot of said plane to the said intersection,” at Yine and Broad streets. Thus, is the conveyance confined to the road built by the state, and the privileges and appurtenances within these limits. By no reasonable construction can it operate beyond. This renders unnecessary a discussion of the nature of an appurtenance, and what usually passes by this term. On that subject, however, I may refer to an excellent illustration of it in Blaine’s Lessee v. Chambers, 1 S. & R. 169.
If these views be correct, and we think they are, the city had the undoubted right to determine on removing and actually to remove the rails of its road from Broad street. It cannot be maintained that property built by the city for its corporate use may not be removed when the interests of community demand it, such as market, engine houses and the like, and I perceive no differ
It was rather faintly pressed that the proposition in the Act of the 16th of March 1831, to the city to engage to construct and continue the railroad from the intersection of Vine and Broad streets, down Broad to Qedar street, and accepted, was as an agreement to maintain it there. This is a position which is not at all maintainable. In the collocation of the words used, “ continue” so obviously means to “ extend,” that argument is not required to refute the position. See Webs. Dic. ad verb. “ continue.”
The complainants insist that the city should be enjoined as prayed in this bill, because in 1865 they expended several thousand dollars in repairs on the city road. A ready and complete answer to this is, the public are not to be deprived of their rights by encroachment. Buildings erected on public grounds or on highways acquire no right either on account of time or expenditures: 16 S. & R. 390; 2 Watts 23; 9 Casey 202; 2 Harris 186; 3 Barr 202; 3 Phila. Rep. 368. Besides this bill was then pending, and no equity for expenditures could arise under such circumstances. But this position seems inconsistent with the position taken by the plaintiffs themselves in January 1863. In the report of the president to their board on the 12th of that month, it is stated, that with a view to remove the coal trade entirely from Broad street, the company had entered into a joint agreement with the Pennsylvania Railroad Company, and the Philadelphia, Wilmington and Baltimore Railroad Company to construct what is called the “ Junction Railroad,” on the west side of the Schuylkill from the foot of the inclined plane to the Baltimore Railroad at Gray’s Ferry, and that it was expected to be completed in the month of June 1863. This was the state of facts when the
An argument has been made by the plaintiffs against the city, based upon the Act of 23d of March 1866. But that act, so far as it has any applicability to them, is a private act, which has neither been pleaded nor put in evidence. I do not regard any portion of it as a public act, in the proper understanding of that idea; but certainly the 3d section, which gives countenance to the argument, relating exclusively as it does to the Reading Railroad Company, is private, and should have been pleaded, if relied on: Welford on Eq. PI. p. 2. A section in a public statute, relating only to private partieseis to be regarded as a private act: Dwar. on Stat. 3 and 4. But considered in any light, no implication necessarily arises that the plaintiffs were intended by the act to be allowed damages against the city on account of its removal of the rails from the city railroad. That the company might be entitled to damages for the removal of rails from Broad street, west of the intersection at "Vine and Broad streets, is another matter, and not before us, and to this doubtless the provision was intended to apply, and not to what it obviously would have been unjust to extend it to. It is hardly to be presumed that the state intended to confer upon the plaintiffs a right in terms so equivocal, and of such questionable justice. A corporation takes nothing by construction. All powers not conferred in a direct and unmistakable manner, are withheld: Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 339. We discover nothing, therefore, in this act which at all interferes with the matter in controversy in this bill, or which should preclude action by the city authorities.
Another ground insisted on by the plaintiffs in argument and in their bill, is that if the city road is removed, they will- be cut off from warehouses, founderies, manufactories, coal, lime and lumber yards on Broad street and Washington avenue, and from their connection with the Southwark railroad and the Delaware river. These form several charges in the bill, but as the right to maintain these connections is denied in the answer, and as our reply is the same in regard to all, we think it more convenient to group them together. I need only say, so far as the Southwark rail
Again, it has been contended that the ordinance of the 18th May 1863, for the removal of the city railroad, is repealed by the subsequent ordinance of the 11th November 1865, on account of repugnancy of its provisions with the former. The city does-not so understand it. Its law officer, the city solicitor, presses this case to a final determination, and informs the court that he does so under resolutions of the councils. This negatives the implication of a repeal. But all this ceases to be of consequence, if the plaintiffs have no right to the relief prayed, and we think they have not. These ordinances concern only the city, or persons having a legal right in the city road, and we think this is all that need be said on this point.
And lastly, it was strenuously insisted that this controversy was res adjudicóla; that we are bound by the decision in this case, made at Nisi Prius, and reported in 11th Wright 325, granting the preliminary injunction referred to in the outset of this opinion against the city, all the judges having sat and heard the case as adsessors. I grant that this ought to be the rule where all the judges have heard and are unanimous on the merits of a base. That was not so in this case. There were two dissents, and there thus being a bare majority against the city, it was a good reason why it should demand a full hearing after answer and proofs, without being precluded by opinions expressed on the preliminary motion. One of the judges in the majority then, has on further reflection and argument, yielded the opinion then entertained, and agrees with the dissentients on that occasion ; and one brother, who has since taken his seat on this bench, alSo concurs with them. Thus; four judges out of six, who first and last heard the ease, are of opinion against the plaintiffs. In this state of the bench, it seems to me it would be manifestly unjust that the city should be bound by that preliminary adjudi
Now, May 7th 1868. Let the entry be made in accordance with the decree.