18 Pa. Super. 524 | Pa. Super. Ct. | 1901
Opinion by
This case does not differ in any of its controlling facts from the case of Larimer, etc., St. Ry. Co. v. Larimer St. Railway Co., 137 Pa. 532. There as here, the older corporation sought to restrain the younger corporation from building a street railway upon a street covered by the charter of the former. In that case both corporations applied for municipal consent which was granted to the younger and refused to the older. In this case both applications for municipal consent came up at the same time, and while it does not appear that the application of the older corporation was formally refused, it is admitted that it was not granted and that the application of the younger corporation was granted. This, in effect, was a refusal of the application of the older corporation. Speaking of the rights of the older corporation, and of its standing to invoke the aid of a court of equity, Mr. Justice Ceaek, who delivered the opinion of the court, said, “Although the unauthorized occupation of a public street by a railway track may be regarded as a nuisance per se, which will be enjoined, chancery will not restrain an act which affects the whole community, at the suit of a private citizen or a corporation, unless the plaintiff can make out a case of special damage : Sparhawk v. Union Pass. Railway Co., 54 Pa. 401; and it is difficult to see how the complainants may be said to have suffered special damage, when they have shown no right whatever to the occupancy of the street for the purposes of their incorporation.” The bill was dismissed for the reason that the plaintiff, although the older corporation, had not obtained municipal consent, and therefore had no special right in the street which was in danger of immediate and irreparable injury by the threatened action of the
We are referred to the Act of June 19, 1871, P. L. 1361, as authority for inquiring into the rights and franchises of the defendant company. But before such investigation may be made at the instance of a private citizen or another corporation, it must be alleged that the private rights of such individual or the rights or franchises of such corporation are injured or invaded or are threatened with injury or invasion by the other corporation. We have endeavored to show that this essential prerequisite to the exercise of the jurisdiction conferred by the act of 1871 does not exist in the present case. And if this be true it would seem equally plain that the plaintiff is not entitled to invoke the restraining power of a court of equity in aid of the quo warranto proceedings instituted by the attorney general in the name of commonwealth. If the bill had been filed by the attorney general an entirely different question would be presented.
In explanation of the order about to be made, it should be stated that at the argument in this court, the parties agreed in writing that the cause might be considered and disposed of as upon final decree.
The decree of the common pleas is affirmed and the bill dismissed at the cost of the appellant.