Gaw v. Bristol & Bridgewater Railroad

196 Pa. 442 | Pa. | 1900

Opinion by

Mr. Justice Bbown,

The appellee, the Bristol and Bridgewater Railroad Company, was incorporated under the act of assembly of April 4, 1868, for the purpose of constructing, maintaining and operating a railroad in the county of Bucks. The articles of association designated, as required by the act, “ the places from and to which the road is to be constructed, maintained and operated,” as well as its length, “ as near as may be.” The proposed road, as located by the company, passes for a distance of about 1,250 feet over the land of Henry L. Gaw, Jr., fronting on the north side of the Frankford and Bristol turnpike road, in Bristol township. He filed a bill in the court below setting forth the proposed taking of his land by the railroad company, and, for reasons therein stated, prayed that an injunction be granted, restraining the defendant from constructing its railroad on Iris property and that the court would examine and ascertain whether the company did, in fact, possess the right or franchise to construct the said railroad upon Ins land, and, if not, that an injunction might issue to prevent the injurious acts complained of. It is unnecessary to recite, hi detail, the allegations of the bill and the denials and averments of the answer. We need refer only to such as are material to an intelligent consideration of the question before us. The Philadelphia and Bristol Passenger Railway Company, incorporated on January 8, 1896, under the provisions of the act of May 14, 1889, undertook the construction of its railway upon the route designated in its articles of incorporation, and in doing so, occupied for 1,250 feet, that portion of the Franldord and Bristol turnpike road in front of Gaw’s property. Under proceedings instituted by him, the company was enjoined from so occupying that part of the turnpike road, which, with other portions of its proposed route, was then abandoned. Subsequently, on December 8, 1897, a charter was granted to the Bristol Passenger Railway Company, under the provisions of the act referred to, for the purpose of constructing a street railway along what had been the route, at the eastern end, of the Philadelphia and Bristol Passenger Railway Company, the latter company extending its road no farther than the east bank of the Neshaminy creek, which is west of appellant’s property. Between the eastern terminus of the Philadelphia and Bristol Passenger Railway and the Bristol Passenger Railway there is no connection. The Bristol and Bridgewater Railroad Company, the appellee, as stated, undertook to, and did, locate its road on private property, north of these two termini and between them. Appellant alleging that this railroad company was seeking to evade the decree of the court below, which had enjoined the Philadelphia and Bristol Passenger Railway Company from occupying the turnpike road, by constructing its railroad on private property, for the purpose of allowing the two passenger railway companies named to practically be connected through it, the injunction, which the court below refused, was asked for, and the single question before us is, whether the same was properly denied. The learned judge, who awarded the injunction in the first instance against the Philadelphia and Bristol Passenger Railway Company, found, among other facts, the following in the case now before us: “ The evidence does not sustain plaintiff’s allegation, that the Bristol and Bridgewater Railroad Company and the Bristol Passenger Railway Company were incorporated for the purpose of continuing and extending the line of the Philadelphia and Bristol Passenger Railway Company over his [Gaw’s] lands, or to evade the decree of the court above referred to, enjoining the last mentioned company from constructing, maintaining and operating its railway over his [Gaw’s] lands and the lands of others, and that the charter of the Bristol and Bridgewater Railroad Company, defendant, was secured for the purpose of constructing, maintaining and operating a street passenger railway of the Philadelphia and Bristol Passenger Railway Company, over that portion of its route where it was declared by the decree of the court that it would be illegal to construct and operate the same over the lands of plaintiff and others, and that the said charter was not secured for the purpose of constructing, maintaining and operating a railroad as contemplated by the act of April 4, 1868.” We have carefully reviewed the evidence upon which this finding is based, and are persuaded that it was fully justified.

But a single question is raised on this appeal, and that is, the right of the appellee to construct its road, as located, by virtue of the right of eminent domain. On the argument, other questions were discussed by counsel, but they do not now fairly arise and need not be considered. The learned judge in the court below was of the opinion, and so held, that the company appeared to be proceeding regularly to possess itself of its roadbed, by virtue of power conferred upon it by the act of assembly under which it was incorporated, and that in the absence of proof that its action was taken for the purpose of evading and defeating a former decree of the court, or to do some illegal act, equity could not interfere with the exercise of the statutory rights which it possessed. No other view could have been properly taken. The appellant invoked the act of June 19, 1871, and prayed that the court would examine and ascertain whether the defendant did, in fact, possess the right or franchise to do what it had undertaken. That act makes it the duty of the court in which proceedings are had to examine, inquire and ascertain whether the corporation complained against does, in fact, possess the right or franchise to do the act from which the alleged injury to private rights results. The court, having examined the charter of the appellee and the powers and rights conferred upon it by the Act of April 4,1868, instantly discovered that what was being done was within the express powers and franchises conferred. The company sought to do nothing that it was not specifically authorized to do by the act which gave it life, and it is a novel doctrine that a court of equity can be appealed to for its decree to restrain the doing of that which, by the express terms of the statute, is declared to be lawful. The appellant, probably believing that the railroad company was undertaking to exercise powers which it did not possess, had a right, in the language of Black, C. J., in Commonwealth v. Erie and Northeast Railroad Company, 27 Pa. 339, to demand of the corporation that it show the words of the legislature conferring the powers about to be exercised, and that, failing to do so, it must give up its claim. If such a call had been made upon the appellee — and, by the proceedings now under review, it was practically made — the response would have been, and is now, that it is written in the act of assembly that every power sought to be exercised was conferred upon it, and that it did nothing, and undertook to do nothing, beyond the powers so given. This was the material question before the court below, as it properly stated, and is the material question now before us, and approving what it did, we affirm its decree, refusing the injunction, and dismiss the appeal at the, cost of the appellant.