205 Pa. 70 | Pa. | 1903
Opinion by
The defendant is a street railway corporation organized under the general acts of 1887 and 1889; it obtained the consent of the commissioners of North Versailles township to run on a public road in the township leading from Wilmerding to Walls station. The township is one of the “ first class ” under the Act of April 28, 1899, P. L. 104. In laying out the route of its railway it adopted the township road mentioned; this takes it on and over the road through plaintiff’s land which abuts on the road 707 feet on one side and 545 feet on the other; he objected to it going through at all; it claims'the right to go through without his consent and that it is not answerable to him for damages. Plaintiff then filed this bill to restrain the company from constructing its railway on the road through his
In his opinion filed the learned judge of the court below held, that a township of the first class under the act of 1899 and those supplementing it in 1901, is as regards public roads, not essentially different from cities and boroughs and has the same power over its highways as the latter have over their streets and alleys, and like them is exempt from answerability for damages for improvements on or under the highways; and while the right to authorize street railways in townships of this class is not expressly given by the statute, it is fairly to be implied, because the public convenience and necessities of the citizens of the one are practically the same as in the other; and he cites as legislative recognition of such necessities, the provisions in the township classification acts, giving the municipality power to lay out, open, grade streets and require payment therefor by property benefited, to require abutting owners to pave and curb sidewalks, to establish a system of sewerage and to assess the cost on property benefited, to erect waterworks and supply water, to maintain fire engines and to do, other acts which cities and borough are authorized to do. That in all respects townships of this class are completely assimilated to boroughs. If water and gas companies are not bound to pay damages to the abutting owners for laying their pipes, he asks, why should a street railway be considered an additional burden and be answerable to him in damages?
The answer and the only answer is, no statute has relieved it from such liability, no decision of the courts of this commonwealth has held that it was not liable. This is conceded by the learned judge and he says: “ The question is one of first impression so far as we have been able to discover.” In holding that a railway companjr is not answerable for imposing such a burden on the property owners we are met first by section 8, article 16 of the constitution : “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”
By the legislation concerning it a township of the first class was not turned into a borough or anything resembling one, any more than that legislation turned it into a city of the first class. It is settled law, that abutting owners on streets and alleys in cities and boroughs have no claim for damages by reason of the appropriation of the surface or subsurface for public improvements to the advantage and benefit of all the inhabitants; it is much easier to say that such is the settled law, than to give a
Boroughs are very ancient municipal organizations, with well defined powers, privileges, duties and liabilities. We inherited an aptness and desire for their organization from England. In our earlier colonial history the large area of territory was divided into counties of such immense extent that it took several days traveling on horseback to reach the county seat; these again were divided into townships, some of them the size of our present counties ; then from special causes, such as trading posts, ferry approaches or heads of river navigation, settlers became grouped in villages or towns and from these last came a demand for local government specially adapted to their needs; so they severed from the larger territorial government of the township and erected the borough municipality. It conveyed the idea, adopted from England, of a compact settlement, as
Then came the.act of 1863 which authorized the inclusion of farm lands adjoining a town or village in a borough, but at the request of the parties owning them the boundaries should be run so as to exclude them. But in all the subsequent legislation there is no departure from the original idea, that to erecta territory into a borough it must have as its base a town or village. The act of classification does not attempt to create a hybrid borough, neither township nor borough; it obviously intends to preserve the old township organization with all its powers and duties except where it expressly enacts otherwise. The preamble states : “ Whereas, in those more populous townships which are in large measure devoted to residential purposes, there is need of a form of municipal government having greater powers than are now possessed by the local governments of townships under the existing laws.” It then declares that townships having a population of at least 300 to a square mile shall be townships of the first class, and that all existing laws relating to townships except as modified by that act shall continue in force. Then the powers which such township ought to possess but which it did not have under the old organization are particularly specified as heretofore referred to; nowhere in the act is it intimated, that as to existing roads and highways, have the commissioners any other or greater power than theretofore existed as to the imposition of an additional servitude, such as street railways. Nor could such servitude have been imposed by the legislature without at the same time providing compensation to the abutting owner for his property