Commonwealth v. Pennsylvania Railroad

78 Pa. Super. 389 | Pa. Super. Ct. | 1922

Opinion by

Trexler, J.,

The Pennsylvania Railroad Company is indicted for maintaining a public nuisance in that it has reduced the water area of the Allegheny River by an artificial fill and has diverted and changed the channel thereof so that the waters of said river and the ice and debris, carried thereon during high water, are forced with increased violence and velocity to the western bank thereof, thereby endangering the lives and properties of the inhabitants of the first ward of the City of Parker.

The railroad runs along the east bank of the river and at the place where the fill was made the railroad described a curve. The company by filling up part of the river, eliminated the curve and straightened its tracks. The extent of the encroachment upon the river was about forty feet in width and about a mile along the river bank, tapering from the widest part to nothing. The court gave binding instructions for the defendant.

We may start with the proposition that the State has the right to appropriate the bed of a stream. The stream is a highway and is the property of the State, over which it has dominion. The State has the right to delegate to its selected agent the right of appropriation which it possesses: Monongahela Bridge Co. v. Kirk, 46 Pa. 112. What, if any, were the rights conferred upon the defendant to take part of the bed of the stream for railroad purposes?

The Pittsburgh, Kittanning & Warren Railroad Co. subsequently acquired by the defendant, was incorporated by an Act of Assembly, 4th of April, 1837, P. L. 345. By the supplement of April 15, 1851, P. L. 1852, page 720, said company was authorized to construct a road from Pittsburgh to Kittanning. By Act of May 8, 1854, P. L. 648, the company is empowered in as full and perfect manner as possessed by the Commonwealth to construct its road along and over any navigable river, watercourse or highway, or in the construction of its road to use so much of the channel of said river, watercourse or highway or to change same as may be necessary for such purposes providing no interruption shall be given to the ascending or descending of said river or watercourse. The Act of Assembly, March 17, 1869, P. L. 12, section 1, provides that any railroad incorporated under the laws of this Commonwealth may straighten, widen, deepen, enlarge and otherwise improve the whole or portion of their lines of railroad whenever in the opinion of the board of directors of such company the same may be necessary for the better securing the safety of persons and property and increasing the facilities and capacity for the transportation of the traffic thereon. “The Act of 1869 is to be read as a supplement to all charters granted by special laws before the General Act of 1849”: Marlor v. Phila., Wil. & Balt. R. R., 166 Pa. 524. It is evident that the elimination of the curve was for the benefit of the patrons of the road. We feel that the acts of assembly above quoted are authority for the work that the company did in the matter. The authority conferred upon the railroad company carried with it the right to select the location and to locate the road between the terminals therein set forth and subsequent legislation gave the authority to change the location and straighten the track. The bed of the river was available by express legislative grant for the original location of the road. The conferring of the right to occupy the bed of the stream was a recognition that such occupation was required for the construction of the road, and it was in fact so used. The right to straighten, necessarily carries with it the original power to occupy the stream. It is not shown that the act of the railroad company interfered with the navigation of the river.

It remains for us to inquire whether subsequently state or federal legislation in any way affects the case. In the Act of June 25, 1913, P. L. 555, it is provided that any person or corporation is forbidden to change or divert the course, character or cross stream of any stream or body of water without the consent or permit from the Water Supply Commission of Pennsylvania in writing previously obtained. It appears that the permit was granted to the company for the present fill in the Allegheny River and that therefore as far as compliance with the Act of 1913 is concerned the company has done its duty. There is, however, an allegation that the defendant has exceeded the limitations prescribed in the permit granted. The Act of 1913 is a regulatory act. We held, when this case was before us in 72 Pa. Superior Ct. 353, that notwithstanding the act, an indictment could nevertheless be had for a common law nuisance in a stream. However, for a violation of the provisions of this act, in not obeying the orders of the commission, the criminal provisions of said act afford the remedy. See Ensworth v. Com., 52 Pa. 320.

The Act of Congress, March 3,1899, Federal Statutes, volume 6, page 805 (authority for construction of bridges, dikes, dams, etc. — plans) provides that it shall not be lawful to construct any bridge, dam, dike or causeway over or in any navigable river of the United States until the consent of Congress for the building of such structure shall have been obtained and until the plans for same shall have been submitted to and approved by the chief of engineers and by the" secretary of war. It appears that the defendant conformed to the act of Congress and holds the certificate of the secretary of war that the work was done in substantial compliance with the terms of the permit.

In view of the opinion we have expressed as to the right of the defendant to nse part of the stream for straightening its tracks, it is useless for us to discuss the other questions presented. The assignments are overruled and the judgment is affirmed.