Opinion,
Me. Chief Justice Paxson :
It is conceded that the appellant company is a corporation chartered by act of assembly in 1866, and that it has the right, under its charter, to occupy any of the streets of Easton and South Easton with its road ; that said company has constructed, and has for many years maintained, a railroad upon Third street, in Easton, for the purpose of carrying passengers over the same; that there is nothing in its charter which prescribes the kind of rail to be used; that when originally constructed, in 1867, the flat rail was laid, and that the same was used continuously until November, 1888, when said company took up its track on Third street, and re-laid it with T rails, to a point at the southerly terminus of the street, near the entrance to the county bridge across the river Lehigh, and made a similar change in the rails on its road along Fourth street and Northampton street; that at the time of this change there was no ordinance of the city prohibiting the use of this kind of rail, and, if not conceded, it was certainly proved clearly, that the purpose of appellant company to reconstruct its track with T rails was known to the city engineer, the members of the highway department, and the city councils, and formed a subject of discussion at the highway department; that no objection or remonstrance was made thereto by the city, or by any authorized agent thereof; that the city engineer was called upon by the company to furnish it with cross-section grades of the street, in order that its tracks might be built to conform thereto; that he complied with this request, and his action in doing so was formally approved by resolution adopted concurrently in both branches of city councils on November 2, 1888; that on June 17, 1889, the city councils passed an ordinance, the first section of which provided as follows: “ That it shall be the duty of all passenger-railway companies to conform to the surveys, regulations, and gradients as they are now or may be hereafter established by law. They shall submit all plans, courses, styles of rails, and the manner of laying the same, either as to repairs, extension, or construction of such railway, to the highway department, for their approval and sanction, *518which shall be obtained before they proceed to make such repairs, break ground, or occupy any of the streets, avenues, or alleys within the limits of the city.” Without going into tedious detail, it is sufficient to state that in June, 1889, upon the rebuilding of the county bridge over the Lehigh river, the street approach was lowered and widened to meet the changes of the bridge; the track of the company from the bridge to the northern side of Washington street was taken up without notice to the company, by the contractor in charge of the work; that the city refused to re-lay the track, and, after several days had elapsed, the company, on June 29th, proceeded to re-lay it; that, a few-days before the track was so re-laid, a notice from the commissioners of highways was served on the company not to re-lay said track with T rails; that on the morning of Monday, July 1st, the city, through its officers and agents, proceeded to tear up the track which had been thus re-laid. The company then filed this bill against the city, its mayor, officers, and members of its highway department, praying for an injunction to restrain them from any further interference with its road; a temporary injunction was granted; the track was re-laid; the case proceeded to final hearing; and it now comes up upon appeal from the final decree of the court below dismissing the plaintiff’s bill.
The contention of the city is that it has the absolute right to control the kind of rail to be used by the company, the manner of laying it, and also the repairs to the track. The company contends, on the other hand, that by its charter it has the right to lay down any rail in its discretion, suitable for the purposes of its road, which does not interfere seriously with the rights of the citizens to use their streets; that they are not to be held to the rail first adopted, because first used, but may take advantage of any improvements in railroad construction; and that the T rail which they have adopted, from its small size, and the manner in which it is laid, interferes with the public use of the streets as little as the flat rail formerly in use, while it is far cheaper and more economical. The master took a vast amount of testimony as to the merits of the respective rails, ninety-nine witnesses having been examined on this point alone, and found as a matter of fact that the T rail used by the company was one suitable for the purposes of a *519street-passenger railway; that the burden imposed on the street by the use of the T rail, both as to the inconvenience of the traveling public and encumbrance to the highway, was no greater than would have been occasioned by the use of a flange or flat rail; and that he cannot find that the use of a T rail imposes upon the municipality a greater burden in keeping the street in repair than does a flat or flange rail. The learned judge below practically reversed the master upon all these findings of fact, and dismissed the bill. While this matter is not of much importance, in our view of the case, it is only fair to the master to say that his findings are fully sustained by the evidence. As now presented, however, it must be disposed of upon other principles.
The bill was filed by the appellant company to re strain the city and its officers from “ obstructing, taking up, removing, or otherwise interfering with the plaintiff’s railway track on South Third street, in the city of Easton or elsewhere, or in anywise obstructing or interfering with plaintiff in the exercise of its franchises.” The company has alleged and proved the commission of certain acts which it contends were unlawful, and which resulted in the tearing up of its track, and an interference with its franchises, traffic, and business. There is no manner of dispute as to what the city has done, and it remains to determine whether such action was lawful, and performed in a lawful manner. If unlawful, it is very plain that the decree below must be reversed, and the injunction must go.
We have very decided views in regard to the course pursued by the city officials. There was a dispute between them and the appellant company as to the kind of rail to be used. It was a dispute not unlikely to arise, under such circumstances. It presented a fair subject for contention, and the law provides adequate and orderly ways of settling such differences. The question here is, not what were the merits of this controversy, —upon that subject we are not now called upon to express an opinion,—but were the city officials justified in deciding this question, both as to its law and its facts, and then carrying their decree into effect by an act of brute force ? Could the officials of the highway department, after seeing these rails laid down months before, and making no objection thereto, sud*520denly decide that it was an unlawful structure, and proceed to abate it with a strong hand? Conceding that the city had .rights in this matter which the company were bound to respect, it is equally clear that the company had rights which the city officials were bound to respect. It is true a municipality may, with the strong hand, abate a public or commón nuisance, which endangers either the health or the safety of its citizens. This much was decided in Klingler v. Bickel, 117 Pa. 326" court="Pa." date_filed="1887-10-31" href="https://app.midpage.ai/document/klingler-v-bickel-6238734?utm_source=webapp" opinion_id="6238734">117 Pa. 326. But no one contends that this road was a nuisance of this character, if a nuisance at all. Nor is there any analogy between this case and that of the obstruction of a public highway by an unauthorized person. It was a track laid down upon the streets, under the authority of chartered rights, and if the kind of rail used was not the best for the interests of the city, yet it was put down in entire good faith and by authority of law. We cannot assent to the proposition that the company is bound by its charter to the same kind of rail in use when the charter was granted. There is neither reason nor law to sustain it. Such a construction would deprive the company of the benefit of any advance in railroad science, and would prevent the adoption of a better. rail, even if the same were advantageous both to the company and to the city. There was nothing in the case to justify the conclusion that this track as laid with the T rail was a public or common nuisance, which the highway department could forcibly and of its own will abate. The learned judge below appears to have felt the force of this, for, after a discussion of the facts, he makes use of this language: “ Under such circumstances, the plaintiff had no right to call upon the master, and has no right to call upon the court, oh a motion for an injunction, to decide the question of nuisance or no nuisance;” citing New Castle v. Raney, 130 Pa. 546" court="Pa." date_filed="1890-01-06" href="https://app.midpage.ai/document/city-of-new-castle-v-raney-6239635?utm_source=webapp" opinion_id="6239635">130 Pa. 546. In this he was entirely right, yet the question naturally suggests itself, if the master and the court below had no right to decide a question of nuisance or no nuisance upon a motion for a special injunction, what .right had the chief commissioner of highways and his assistants, who are not presumed to be learned in the law, to decide for themselves, without any proceeding before them, that this track as laid was a common nuisance ? If they did not so decide; if in point of fact the track was not a common nui*521sanee, they had no right to tear it up; they were merely trespassers and rioters, and liable civilly and criminally as such. We aro emphatic upon this point, because we do not wish to be misunderstood. There is a growing disposition in this commonwealth, especially on the part of corporations, private as well as municipal, to take the law into their own hands, and settle controversies by force, instead of appealing to the courts to redress their wrongs and enforce their rights in an orderly and peaceable manner. Instances are not rare, and are of recent occurrence, where bands of men have stood confronting each 'other, some of them with arms in their hands, in the assertion of supposed rights. The public peace has been threatened in this manner, sometimes resulting in loss of life. It is well that it should be known that such persons, whether representing individuals, private corporations, or municipalities, are simply rioters, and answerable to the criminal law for their conduct. It is a serious mistake to suppose that municipal officers are above the law, and can enforce civil rights, or perform even police duties, in their own way, in disregard of the forms of law. The officers of a municipality, from the mayor down to a police officer, are as much bound by the law as a private citizen, and have no license to transgress the law in the enforcement of the law.
The defendants have no right in this proceeding to ask this court to settle any question affecting the rights of the city in the matter in controversy. They have not filed a cross-bill, nor have they applied to this court or any other court to adjust the differences between the city and the appellant company. They have no prayer for relief. On the contrary, they have assumed to decide the delicate questions involved for themselves, and to enforce their decision by the strong hand. This cannot be permitted. We are of opinion that their acts were unlawful, and that the plaintiff is entitled to the relief prayed for.
The decree is reversed, and the bill reinstated; and it is ordered that the record be remitted to the court below, with directions to issue an injunction as prayed for; the costs to be paid by the appellees.