148 Pa. 621 | Pa. | 1892
This bill was filed in the court below to restrain the defendant company from rebuilding the elevation and extension of its toll bridge described in the bill, in a southeasterly direction from the southeasterly bank of the Susquehanna river.
It appears that the bridge of the defendant company had been frequently threatened with destruction from ice and high water, and, upon several occasions, prior to 1875, had been injured to a considerable extent. In the year 1875, the larger part of the bridge was swept away by a flood. In rebuilding it the safety of the structure itself required it to be elevated. This was accordingly done with the consent of the council of the borough of Pittston, and of a number of the property owners more immediately affected by the change. This elevation of the bridge rendered it necessary to construct an elevated approach thereto some 300 feet in length in the borough of Pittston. This approach crosses two public highways, but in such manner as not to interfere to any appreciable extent with the public travel upon
In the year 1885, the approach referred to was destroyed by fire, and when the defendant company came to rebuild they were confronted with this bill in equity, filed by the attorney general on behalf of the commonwealth, at the instance of certain parties who objected to its construction in the same manner as heretofore.
The case has been so exhaustively discussed, both by the learned court below and the master, that little remains to be added. The two controlling charges in the bill, and the two points pressed upon the argument, were that the acts complained of were ultra vires the corporation, and that they amounted to a nuisance. The master found against the commonwealth in respect to both; the court held that the structure was not a nuisance, but that it was in excess of the powers of the corporation. For reasons, however, which we need not state here, but which are entirely satisfactory, the court declined to grant an injunction, and dismissed the complainant’s bill.
We would not hesitate to affirm the decree, without more, upon the opinion of the learned president of the court below, but for the reason that we do not agree with the proposition that the defendant company had no power to make this extension. The grant of the power to construct the bridge carried with it the right to elevate it to a sufficient height to avoid the danger of ice and floods. The fact that it had been injured several times from such cause, and finally almost wholly swept away, is conclusive evidence that the original construction was too low. In rebuilding it the company had the right to elevate it in such manner, and to such a height, as in their judgment would obviate the danger referred to. The original construction did not exhaust the power of the company in this respect. It might not relocate the bridge, for the power to do that was exhausted by its original location, but it could change the elevation of the bridge to the extent that experience showed it to be necessary. The right to elevate it carried with it by necessary implication the right to construct reasonable and proper
The commonwealth has moved with a leaden heel in this matter, and while the great delay does not bar her right, it is not without weight in considering the character of this construction. Had it been the public nuisance which she now alleges it to be, it is hardly likely so long a time would have elapsed before anyone complained of it. The further fact that those that are now most active in pressing this case, or their predecessors in title, assented to the original construction, is not without weight.
The decree is affirmed, and the appeal dismissed, at the costs of the appellant.