Danville, Hazleton & Wilkesbarre Railroad v. Commonwealth, 73 Pa. 29

Danville, Hazleton & Wilkesbarre Railroad v. Commonwealth

73 Pa. 29 | Pa. | 1873

*36The opinion of the court was delivered, July 2d 1873, by

Mercur, J.

The Wilkesbarre & Pittston Railroad Company (to whose rights the plaintiff succeeded) was incorporated under the Act of 15th April 1859. The fifth section of said act provides, “that this company shall hereby have the rights and privileges and be subject to all the restrictions of the act regulating railroad companies, passed the 19th day of February, A. D. 1849.” This language is sufficiently comprehensive to subject it to the general railroad law to which it refers. It is contended, however, by the plaintiff, that inasmuch as the fourth section of said act declares “ that said company shall have all the rights and privileges enjoyed, for the settling and obtaining the right of way, as now enjoyed by the Sunbury and Erie and Pennsylvania Central Railroad Companies,” that this extends to, and includes, the mode of settling differences between township authorities and a railroad corporation, when the latter has taken possession of a public road. We cannot concur in this construction of the statute. We do not think “settling and obtaining the right of way” was designed to include the rights of the public in a public highway. That language is evidently designed to be restricted to the settlement and acquisition of that private property which, the Constitution says, the legislature shall not invest any corporate body with the privilege of taking for public use, without requiring such corporation to make compensation to the owners thereof, or give adequate security therefor before such property shall be taken. The statutes referred to designate the manner in which the right of way over private property may be acquired by these corporations. The said fourth section of the Act of 15th April 1859 must be held as referring to the right of way over private property only, and not extending to public property. Hence, we discover no error in the first and third assignments. The second assignment presents the important question in the case. The thirteenth section of the Act of 19th February 1849, 2 Br. Purd. Dig. 1221, pl. 39, declares “if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the original road.” The plaintiffs’ railroad was located between the east bank of the Susquehanna river and Blue Hill. In the construction thereof, along the base of said hill, it became necessary to occupy so much of the public road, for a distance of 875 yards, as to hinder, obstruct and make dangerous the travel over the same. A change of the site of so much of said public road became necessary. Before occupying this road, the plaintiff constructed a new road, in lieu thereof, over the hill, and opened it for public use. This new road, however, was not con•structed on the most favorable location, and in as perfect a manner *37as tbe original road. It so continued for more than a year after the old road was obstructed, and down to the time of finding this indictment — subsequently, and before the trial, the plaintiff partially widened the public highway along the track of .said railroad, upon the most favorable location; but did not reconstruct the same in as perfect a manner as the original road. The defendant contends that this omission by the plaintiff to reconstruct a public road, makes the appropriation of the old road illegal and subjects the company to an indictment therefor. The indictment, therefore, does not charge the plaintiff with neglecting or omitting to reconstruct a road in lieu of the one occupied by the railroad, but with obstructing and stopping up the old public road. The effort is to convict the plaintiff for obstructing the old road by reason of its failing to construct a new one. Can this be done ? In support of the affirmative, the case of Reg. v. Scott, 3 Q. B. 858 (43 E. C. L. R.), has been cited. It is true an indictment was there sustained against the engineer and other persons, acting on behalf of th.e Manchester and Leeds Railway Company, for obstructing a road before constructing a new one in lieu thereof; but that is based upon the language of the statute. After authorizing a railroad corporation to make obstructions in public or private roads for the purpose of their undertaking, the statute expressly declares “ before any such road shall be so cut through, taken or injured as aforesaid,” the company shall cause a good and sufficient road to be set out and made instead thereof. The making of the new road was therefore a condition precedent to the right of the corporation to break ground in the old road. In ruling the case, Lord Denman, C. J., said, “ the company have not done what the act legalizes only on a condition which they have not performed.” So in Reg. v. The Great North of England Railway Company, 8 Q. B. 314 (58 E. C. L. R.), it was held, in an opinion given by the same chief justice, that a corporation aggregate might be indicted for misfeasance or nonfeasance under the‘same statute, in not conforming to the powers conferred on the company by Act of Parliament. The language of our statute is entirely different. It nowhere' declares that the making of a new road shall precede the taking possession of the old one. It gives an unconditional power to a railroad company to construct its railroad upon a public road, but commands what the company shall thereupon do. The legislature authorizes the original highway to be changed to another form of highway. The Act of February 19th 1849 gives to all railroad corporations, subject to its provisions, the right to take possession of such portions of any public road, as come within the line of its track. When the construction corps strikes a public road, it is not obliged to pause and seek for an agent of the Commonwealth to whom payment must be made, or adequate security be tendered before breaking ground. The statute has provided *38the character and extent of the compensation which it shall render to the public, consequent upon taking a public road. Legislative wisdom has not said that payment shall precede the taking. The power of the legislature to authorize the building of a railroad upon a public road is indubitable: Phila. & Trenton Railroad Co., 6 Whart. 25; Green v. Borough of Reading, 9 Watts 382; Henry v. Pittsburg & Allegheny Bridge Co., 8 W. & S. 85; O’Connor v. Pittsburg, 6 Harris 189 ; Mercer et al. v. Pittsburg, Ft. Wayne & Chicago Railroad Co. et al., 12 Casey 99. To the Commonwealth belongs the franchise of every highway within its limits as a trustee of the public. Every public road therein exists by force only of the Commonwealth’s authority. So every railroad has its franchise by grant from the state: O’Connor v. Pittsburg, supra. As the statute then authorized the plaintiff to appropriate so much of the public road as was necessary for its purposes, and the portion taken did not exceed the width fixed by law, it follows that the taking, in pursuance of law, cannot be a public nuisance: Fletcher v. Auburn & Syracuse Railroad, 25 Wend. 463; Drake v. Hudson River Railroad, 7 Barb. 508; Harris v. Thompson, 9 Id. 350. In this case the court well said, “ it is a legal solecism to call that a public nuisance which is maintained by public authority.” In People v. Law et al., 34 Barb. 502, the court said that taking a street or highway for the purpose of a railroad is taking it for public use, is settled by repeated adjudications and can no longer be regarded as an open question. A structure authorized by the legislature cannot be a public nuisance. A public nuisance must be occasioned by acts done in violation of law. A work which is authorized by law cannot be a nuisance: Rex v. Pease, 4 Barn. & Ad. 17; Commonwealth ex rel. Attorney-General v. Pittsburg, Fort Wayne & Chicago Railroad Co., Pittsburg Legal Journal, January 2d 1858, Vol. 5, No. 35. We think, therefore, the learned judge erred in holding the conviction good under the first count of the indictment. The second count was not pressed, besides the act therein charged appears to have been done within the limits which the plaintiff was authorized to appropriate to its use. The second assignment is therefore sustained. This necessarily sustains the fourth and fifth assignments. Whether the plaintiff would have been liable to an indictment, if charged with not reconstructing the road in a reasonable time, does not arise under this indictment, and we therefore do not express any opinion in regard to it. We hold this conviction is contrary to the whole spirit of the statute which authorizes a railroad company to lay its tracks upon a public highway, therefore

Judgment reversed and judgment entered in favor of the defendant below.