215 Pa. 597 | Pa. | 1906
Opinion by
The substantial question in this case is one of remedy. On the admitted facts it is beyond dispute that the defendant is acting without legal authority. It entered upon and occupied with its tracks the streets adjacent to the plaintiff’s property by the consent of the councils of the city of Pittsburg expressed in an ordinance passed November 30, 1881. The consent as shown by the ordinance was given on the clearly expressed and continuing conditions, inter alia, “ that the said
A railroad company occupying a public street without authority by legislative grant in clear words or by unavoidable implication constitutes a public nuisance and may be enjoined at the suit of a private citizen specially injured : Penna. R. R. Co.’s Appeal, 115 Pa. 514. On this principle a railway company already occupying a street may question the right of another company seeking to put its tracks on the same street: Germantown Pass. Ry. Co. v. Citizens’ Pass. Ry. Co., 151 Pa. 138. An abutting landowner may enjoin the construction of a street railway where the right of way has not been fully acquired: Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., 167 Pa. 62. Or where the proposed line passes through several municipalities and all have not granted consent: Penna. R. R. Co. v. Electric Ry. Co., 179 Pa. 584; Hannum v. Ry. Co., 200 Pa. 44.
These authorities establish that except for the ordinance giving the consent of the city of Pittsburg, the acts of the defendant company would constitute a public nuisance which the complainant or any other citizen specially injured could require to be abated. But a consent upon condition, and the condition broken, is no consent at all. The breach makes the continued use as unlawful as if the condition had never been performed at all.
It is strongly urged that as the condition was made by the city of Pittsburg, and may be repealed or waived by the city, it alone can take advantage of the breach. Regarded as a contract or agreement between the railroad company and the city, this may be conceded, and it maj^ for present purposes be further conceded that a private citizen cannot in his individual
In some of the earlier cases effort was made to stretch the act to confer on private parties the authority previously exercised by the commonwealth to inquire into the abandonment or forfeiture of franchises, but it was held that the act did not confer on the individual the general authority of the commonwealth but that under it the inquiry must be restricted to the existence of franchises as shown by the charter: Western Penna. R. R. Co.’s Appeal, 101 Pa. 399. Hence the terms of the grant in the charter were usually spoken of as the test of the validity of the corporation’s action, and so far as the grant is concerned that is still as it always has been, the conclusive test. But it was never decided or intended to be that the failure of the grant could not be shown either from the charter itself or aliunde. Thus in the case last cited it was held that the complainant might show from the charter that the franchise had lapsed or expired, and the cases on passenger railways cited supra rest on proof outside of the charter that other legal requirements for the validity of the challenged action were want
The right of the complainant in the present case, therefore, does not rest on any claim to enforce the ordinance of the city of Pittsburg. But the ordinance is an existing fact material to the validity of the defendant’s action which without it would be a public nuisance enjoinable on the suit of anyone specially injured. If complainant could have shown that the ordinance had been repealed the whole defense would have failed. By showing that the ordinance though not repealed granted a privilege only on condition, and that the condition has been broken, complainant shows that the defendant’s action is without a present complete legal justification. For the purposes of this suit that is all that is necessary.
The city of Pittsburg is not interested in the present question. It may modify or altogether repeal the conditions of its consent in the ordinance. If it should do so the status of complainant in the present suit would be changed, but there would still remain the question of her right to damages at law, and perhaps other questions which we need not consider now.
The decree is reversed at the costs of the appellee, and the injunction directed to be awarded as prayed.