212 Pa. 491 | Pa. | 1905
Opinion by
The Bells Run Railroad Company was incorporated under the Act of April 4,1868, P. L. 62. The road to be constructed by it is from a point on the Dent’s Run Railroad, in Elk County, to a point on the Philadelphia and Erie Railroad, in Cameron county, and is about fourteen and one-half miles in length. After the railroad had been constructed to the southern line of the lands of the appellees, and the company had failed to secure a right of way over these lands, it tendered the appellees a bond, in accordance with the act of assembly, to secure the payment of all damages sustained by them in the taking of their land for railroad purposes. They thereupon filed this bill, averring that the charter of the company had been obtained solely for private use and benefit, and not for any public use or for the transportation of persons and property generally, and prayed for a decree that the company be declared not a corporation for a public railroad, that it does not have the right to take the property of the appellees under its alleged right of eminent domain, and that it be restrained from doing so. On the bill and answer and affidavits filed by the respective parties the preliminary injunction prayed for was awarded, from which there is this appeal.
The court below found that the company had complied with all the requirements as to the location of its line, and that the same had been validly located, adding, however, “ But the question raised by this bill is, whether the charter of the defendant company confers upon it the right of eminent domain.” This is not a correct statement of the question involved in this proceeding. If it were, there could be but one answer to it, for the company has clearly conferred upon it the. right of eminent domain. The question is whether, possessing such right, it is attempting to exercise the same for
After the appellant had surveyed and located the route of its road from one terminus to the other, and had completed six miles, up to the line of appellees’ lands, it was halted by them for the reason given. As evidence of its right to continue its road through their lands it presented its letters-patent, authorizing it, upon securing them for damages, to occupy their lands, and this right cannot be interfered with, if it was about to be exercised for the purpose for which it had been conferred. If, on the other hand, under its right of eminent domain, the company is about to take private property, not for a public, but for a private use, the appellees are entitled to relief by injunction to be awarded under the act of June 19, 1871, for the charter of the company cannot be perverted to accomplish objects for which it was not granted. But conferring, as it does, the right of eminent domain upon the appellant, which has surveyed and located the route of its road and built three-sevenths of it, the burden of showing that the company is exercising franchises that it does not possess is upon those alleging that it is attempting to do what it is not authorized to do—'-constructing a railroad for purely private purposes. If this clearly appears, it will be regarded as a perversion of the commonwealth’s charter, which will not be permitted. - In the two cases on which the court below relied as authority for issuing its injunction—MeCandless’s Appeal, 70 Pa. 210, and Edge wood Railroad Company’s Appeal, 79 Pa. 257—this clearly appeared. In the first case we said the railroad was “ clearly intended solely for the use ” of the mill and machinery of Rhodes, and in it “the public could have no advantage whatever.” In the second it was clear that the road was intended to carry the coal of the Hampton company, and “ nothing else.” Does it clearly appear that this road is to serve only a private use ?
The averment of the bill that the appellant was incorporated for private use, and is not intended for any public use, or for the transportation of persons and property generally over the
We do not, as a rule, interfere with the interlocutory action of the court below “ unless clearly erroneous and immediately injurious to the appellant:” Western New York & Pennsylvania Railway Company v. Buffalo, Rochester & Pittsburg Railway Company, 193 Pa. 127. This case is within the exception to the rule and calls for our interference. The decree is reversed and the preliminary injunction awarded is dissolved, the costs on this appeal to be paid by the appellees.