1 A.2d 672 | Pa. | 1938
This appeal is by the Commonwealth of Pennsylvania from the dismissal of its bill and amended bill in equity, brought ex rel. the Attorney General, against the Delaware Division Canal Company and other named defendants, for a decree of forfeiture revesting in the Commonwealth full and complete title to the Delaware Division Canal. As an alternative to this remedy, the Commonwealth, in its amended bill, asks for a decree requiring *56 the canal company to restore the canal to navigable condition and to resume its operation as a waterway.
The Act of April 21, 1858, P. L. 414, which was declared constitutional in The Sunbury and Erie Railroad Company v.Cooper,
In the present proceeding the Commonwealth is endeavoring to enforce a forfeiture of the title to the entire canal, on the ground that, by the Act of 1858 and the Commonwealth's conveyance pursuant thereto, the title of the Sunbury and Erie Railroad Company through whom the defendant, the Delaware Division Canal Company, derived its title, was upon the express condition that the canal be forever maintained as a public highway. Alternatively the Commonwealth claims that if it is not a condition of the conveyance, but only a covenant that the canal be maintained as a public highway, then it should be decreed that the canal company restore a navigable canal. Joined with the canal company as defendants are the Lehigh Navigation Coal Company, the lessee from the canal company of certain of the lands appurtenant to the canal, the Philadelphia and Trenton Railroad Company, a Pennsylvania Railroad Company subsidiary, to which the canal company has sold a part of the canal property, and the Pennsylvania Railroad Company. The City of Philadelphia has intervened claiming an interest to protect the water supply of Philadelphia. The Delaware Valley Protective Association has filed a brief, amicus curiæ under Rule 61, in support of the Commonwealth's claims.
The contentions of the defendant are that the original grant under the Act of 1858 was not subject to any condition, the restrictive terms being only a covenant, and that, in any case, the Act of May 17, 1901, P. L. 261, authorizes the discontinuance of the use of the canal for transportation purposes. The court below found in defendant's favor on each contention and dismissed the bill. This appeal followed. *58
In considering the questions here involved, the facts found by the learned chancellor and approved by the court below will not be reversed in the absence of manifest error, and are to be given the same weight as the verdict of a jury: Houghton v.Kendrick,
The first question in the case concerns the correct interpretation of the Act of 1858, and the deed of May 19, 1858, from the Commonwealth to the Sunbury and Erie Railroad Company, the predecessor in title of the canal company, since we must determine whether the provision in the act and deed that the canal shall remain a public highway forever, is a condition subsequent, the breach of which would cause a forfeiture, or a covenant, the failure to perform which would give to the injured party, in some circumstances, a right to an action for damages.
The Restatement of the Law of Property, section 45, commento, says: "When an otherwise effective conveyance contains a mere statement of the use to which the land conveyed is to be devoted, or, of the use, in consideration of which, the conveyance is made, such statement alone is not sufficient to cause the estate created to be an estate in fee simple subject to a condition subsequent." To the same effect see T. W.Phillips G. O. Co. v. Lingenfelter,
In the case of Columbia Railway, Gas Electric Company v.State of South Carolina,
Viewing the present case in the light of the foregoing authorities, we are of opinion that the obligation contained in the deed of 1858, executed in pursuance of the act of the same year, is but a covenant, and not, as contended by the Commonwealth, a condition on the fee. What we have is a conveyance, for a valuable consideration, of an absolute title in fee simple, as contained in the language thereof, to-wit: ". . . all the property thereto belonging, or anywise appertaining, and all the estate, right, title and interest of this commonwealth therein, . . ., unto the Sunbury and Erie Railroad Company aforesaid, their successors and assigns . . . forever." Nowhere in said act or deed can there be found any express or implied terms whereby we could say that the reasonable intent of the parties was to create a condition on the fee. Nor is there any clause of reëntry or words of any sort indicating such intent.
Moreover, the Commonwealth is deprived by the Act of 1901, supra, of both remedies it seeks in this proceeding. The act provides, "That any person, corporate or otherwise, vested with the franchise of constructing, maintaining and using, for purposes of transportation, canals or other artificial highways, may, at any time, convert a portion or the whole of the water supply theretofore used for such highways to the uses of domestic manufacturing and commercial purposes, and may to *61
this end, from time to time, lease, sell or convey the whole or any portion of the same." Language could hardly be more definite, and when we remember that at the time this act was passed canals for transportation purposes were obsolete, it is easily seen why the legislature in such broad terms released all such companies from carrying out that feature of their charters. Other acts authorizing the abandonment of particular canals had already been passed: Act of June 2, 1870, P. L. 1318; Act of May 7, 1889, P. L. 104; Act of March 16, 1899, P. L. 9. Without abandonment it is impossible "to convert . . . the whole of the water supply theretofore used for such highways" to domestic, manufacturing and commercial uses: cf.Sharon Iron Co. v. City of Erie,
The Commonwealth argues that the Act of 1901 is not applicable to the canal company, a corporation specially created before the adoption of the present Constitution, because it does not hold its charter subject to the provisions of the Constitution. We take the opposite view, because on October 1, 1931, the canal company by proper corporate action accepted the provisions of Article XVII of the Constitution, and on October 8, 1931, filed a certified copy of such action in the office of the Secretary of the Commonwealth. The Article, in section 10, provides that: "No railroad, canal or other transportation company, in existence at the time of the adoption of this article, shall have the benefit of any future legislation by general or special laws, except on condition of complete *62 acceptance of all the provisions of this article." The canal company thereby became entitled to take advantage of the provisions of the said Act of 1901.
The Constitution in Article XVII deals specifically with general or special laws enacted after 1874, benefiting railroads, canals, or other transportation companies in existence at the time of its adoption. Obviously section 10 thereof prescribes the basis upon which the canal company might avail itself of the benefits of the Act of 1901. All that is required is that the terms of the Constitution be, in fact, accepted. The canal company duly accepted those terms, and, although acceptance was long delayed, is entitled to the resulting benefits, in this case the right to abandon operation of the canal for transportation purposes.
The Commonwealth suggests, however, that if the provisions of the Act of 1901 were available to the canal company, the Act of 1931, supra, empowering it to convey a part of the canal to the Commonwealth not to be further used for transportation purposes was unnecessary. Such is not the case. The sole purpose of the Act of 1931 was to comply with the terms of section 513 of the Administrative Code (Act of April 9, 1929, P. L. 177), which is as follows: ". . . a department, board, or commission, shall not accept any gift of real estate, or of any interest in real estate, without specific authority from the General Assembly so to do." Pursuant to this requirement the Act of 1931 authorized the Commonwealth "acting through the Department of Highways [to] acquire, by gift, all or any part" of the lands of certain canal companies. Consequently, the fact that the Act of 1931 was enacted is no indication that the canal company cannot by accepting the terms of the Constitution have the benefit of the Act of 1901.
The Commonwealth contends further that the Act of 1901 is unconstitutional in that it grants powers prohibited by Article XVII, section 5, of the Constitution, which provides: "No incorporated company doing the *63
business of a common carrier shall, directly or indirectly, prosecute or engage in mining or manufacturing articles for transportation over its works; nor shall such company directly or indirectly engage in any other business than that of common carriers, or hold or acquire lands, freehold or leasehold, directly or indirectly, except as shall be necessary for carrying on its business. . . ." Canal companies are common carriers (Article XVII, section 1), and, so long as they remain such, they must not engage in another business to which they could give transportation advantages in preference to competitors who do not control transportation facilities. But where, as here, the business of common carrier has been discontinued, there is no reason why such company may not be devoted to whatever other legal use it may be adaptable. Indeed, here the canal company has from its inception had the right, within limits, to sell water. It did not lose its franchise to do so by accepting the terms of the Constitution:Blauch v. Johnstown Water Co.,
The Commonwealth is not entitled to a forfeiture of the canal company's title, or to compel it to restore the canal to a navigable condition. Needless to say, however, this does not give the canal company warrant to permit the canal to become a source of contamination or an annoyance to near-by residents. It must at all times maintain it in such manner as not to become a public nuisance: Delaware Division Canal Co. v.Commonwealth,
After the Commonwealth filed its bill in this case, and before the case was heard by the chancellor, the Act of July 2, 1937, P. L. 2778, was passed. It declared forfeitures of Commonwealth grants of public works, canals, etc., "where the conditions, covenants or terms of such grants have been or shall hereafter be breached" and authorized the Attorney General to institute appropriate proceedings to enforce the provisions of the Act; ratifying any and all pending proceedings. Thereafter, by stipulation of the parties, the Commonwealth amended its bill to include, among other things, an averment of the passage of this act. The contention is that upon refusal to restore the canal to a navigable condition, the Commonwealth, pursuant to the terms of the act, was entitled to a decree of forfeiture. The act has no application here for the reason that there has been no breach of any condition or covenant of the act or of the deed of 1858. As already said, the Act of 1901 authorized the defendant canal company to convert "the whole of the water supply theretofore used for such highways" to commercial uses, which of course meant abandonment of the canal for navigation.
The City of Philadelphia petitioned to intervene, desiring protection of its water supply from the Delaware. Intervention was refused by our order of May 23, 1938, without prejudice to the city's right to raise the questions presented in its petition in any future proceeding. There is no threat to the city's water supply in the canal company's present user. If at any time its supply is thereby appreciably impaired, it will have its remedy by appropriate proceeding.
All the assignments of error are overruled, and the decree of the court below is affirmed, at the costs of appellant. *65