220 Pa. 585 | Pa. | 1908
Opinion by
This is a bill in equity praying for an injunction to restrain the respondent company from constructing a railroad siding, later a lateral railroad, over certain streets of the borough at grade. When the case was here before on an appeal from a decree refusing a preliminary injunction, it was held, reversing the court below, that under the prayer of the supplemental
It is argued for the appellee, with much force and ability, that the settled policy of the law which finds expression in the decisions of the courts and in statutory regulations dealing with grade crossings, has no application to a lateral railroad, and that this question was not fully considered when the case was here before on an appeal from a preliminary injunction. The question is now squarely raised, and it must be determined whether a manufacturing company, having availed itself of the provisions of the Act of May 5, 1832, P. L. 501, under which it had undertaken to construct a lateral railroad, has a right to lay its tracks over a public street at grade without municipal consent, which in the present case has not been obtained. Under the first of the five questions propounded in the argument of learned counsel for appellee the proposition is rather ingeniously stated to be whether the lateral railroad act prevents a lateral railroad from crossing a public street at grade. This proposition might be answered in the negative
• Again, it is the opinion of this court, that the Act of June 7, 1901, P. L. 531, is broad enough in scope and purpose to apply to a lateral railroad crossing a public highway at grade. &.s indicated by its title, the act relates to railroad crossings of highways, and was intended to regulate, alter and abolish grade crossings. In the first section of the act the purpose is stated to be that all crossings, hereafter established, whether of highways by railroads or railroads by highways, shall be above or below the grade thereof. This language is sufficiently comprehensive to include all kinds of railroads, and since it is intended as a protection to life and property and is a safeguard against dangers to the traveling public, there does not seem to be any good reason why it should be given such a construction as to partially defeat the purpose of its enactment. The purpose of the act was to prevent the crossing of highways by railroads or of railroads by highways at grade. The dangers incident to the operation of a lateral railroad are similar in kind and may be in degree to the dangers incident to the operation of a steam railroad. The learned court below has made a careful analysis of many sections of the act of 1901 for the purpose of showing that its provisions relate to chartered companies for general railroad purposes enjoying the right of eminent domain. It is true that
The third proposition advanced by the appellee is that even conceding the act of 1901 applies to lateral railroads, it cannot be held to apply in a case where the right to construct was confirmed by the court prior to the time when the act went into effect. This position confuses the naked authority given to construct a lateral railroad with the actual construction of the crossing. The act of 1901 applies to all crossings hereafter established, and this language has reference to the time when the crossing is actually established on the ground and ready for construction, or in fact constructed, and not to the time when a lateral railroad may have been authorized by a decree of the court under the act of 1832 to construct such a railroad. The general authority to construct a lateral railroad does not establish a crossing within the meaning of the act of 1901.
The fourth point is also without merit. It has already been indicated that the act of 1832 did not give the right to appropriate the streets of a municipality to the private use of a lateral railroad, and it necessarily follows that if the statute did not give such power, the right to make such use of a public street can only be obtained by municipal consent, and without such consent the right does not exist. Nor do we think this is a case for the application of the doctrine of estoppel or laches.
Decree reversed, bill reinstated and the record remitted with direction that the injunction be made permanent.