144 Pa. 150 | Pennsylvania Court of Common Pleas, Lancaster County | 1891
Dissenting Opinion
dissenting :
A re-argument has been ordered in this case, and it has now been heard before a full bench. Justice Green and myself dissented from the judgment on the first hearing: See Groff’s App., 128 Pa. 621; and, as the majority of the court adhere to the views then expressed, I desire to place upon the record the reasons why I cannot unite with them.
Aside from the merits of the case, I would affirm this decree on the ground of the complainants’ laches. This bill was not filed until after the contracts for the construction of the turnpike road were entered into and half of the work done. They saw the work going on day by day; it was before their eyes, and they did not file their bill until the defendants had expended about nine thousand dollars on the road. This delay, under all the authorities, ought to have been fatal to any application for an injunction. In Orne v. Fridenberg, 143 Pa. 487, opinion filed herewith, we refused, by a unanimous decision, to restrain a violation of building restrictions on the ground of laches. The authorities upon this point are so clear and so numerous that I may well be excused from a further reference to them. It is
I would refuse the injunction for the further reason that the complainants have not suffered irreparable injury, nor are they threatened with any. The only injury of which they complain is that they are compelled to pay a few pennies of toll when they travel over this three and a half miles of turnpike. It may amount to, perhaps, from one to five dollars per year. As an offset to this, they have a good macadamized road at all seasons, in place of a road which the master finds is almost impassable much of the year. In addition, they are relieved from the payment of the taxes necessary to keep the road in order, which the master finds are the full equivalent of the tolls paid. Where, then, is the irreparable injury which justifies the exercise of the extraordinary power of injunction ?
It is a familiar rule in equity that a chancellor will never grant an injunction, when by doing so he will inflict a greater injury than the one sought to be redressed. In such case, the unbending rule is, as the authorities all show, to leave the parties to their remedies at law. It is a grave mistake to suppose a court of equity will always enforce a legal right. It will only do so, where there is a strong equity, an irreparable injury, and the absence of an adequate remedy at law. We have seen the trifling character of the injury, and the inexcusable delay in invoking the aid of chancery: what is the injury which this decree inflicts upon the defendants ? They have expended about twenty thousand dollars in the construction of this little piece of road. Of all the inhabitants of that township, these plaintiffs are the only ones who complain; and we have the right to assume that all the others are satisfied to pay their tolls, and glad to have a passable road to travel. This injunction practically destroys the capital of the company. The complainants can now use the road free of tolls which their neighbors have made at this large expense. Moreover, they are relieved of their share of the annual expense of keeping it in order. It may be considered a thrifty operation to delay the filing of their bill until the turnpike was secured, and thus gain these considerable advantages over their neighbors, but I confess I am unable to see any equity which commends this case to our favorable consideration. There are cases where the equity powers of the court, judiciously
But I would affirm this decree upon the merits. The Bird-in-Hand Turnpike Company, appellee, was chartered under the act of ,1874, to construct a turnpike of about three and a half miles in length in Lancaster county. The termini are given, but not the route to be taken. It is an admitted fact that between the termini there was an old country road, and that said termini were both on this road. It further appears from the plan submitted that this road is almost as straight as a surveyor could run a linea single deflection, so slight as to be barely discernible, appearing upon it. The company occupied this road, macadamized it, thus converting it into a turnpike, and erected gates for the purpose of taking toll. I may here be excused for making a reference to the master’s findings of fact, as they are practically ignored in the opinion of the court: 128 Pa. 621. I quote from his report:
1. “ That the old Philadelphia road, in the summer season, when not rainy, was a good road, with easy grade, with but few exceptions.
2. “ That at other seasons, from the late fall until some time in the spring, a period running from four to six months, the road was at times almost impassable, if the period was rainy, by reason of the soft and miry character of its bed, when the road would be badly cut up; and then, when the ground would be frozen, was hard, rough, and very difficult to travel over.
3. “ The road is located in one of the most thickly populated parts of Lancaster county, and has a large amount of travel and hauling over it from all surrounding points. The Pennsylvania railroad has a prominent station and warehouse at Bird-in-Hand, close to its eastern terminus.
4. “ The line adopted for the pike is very nearly direct between the termini, is on the bed of the old Philadelphia road, and along its entire route interferes with no private property.
5. “ Draft No. 2 and the evidence shows it to be .the only feasible, reasonable, and practicable route between the termini. Any other route would have diverged either to the north or to the south. The character of the surrounding country on the south is hilly near the creek, soft, and the hills steep. Near the eastern terminus it would meet the railroad, where there is a
6. “ The change in the road from a highway to a turnpike will not work great and irreparable injury to the plaintiffs and others using said road. The pike gives a good and substantial road, ready for all uses, in all seasons of the year. It works no injury or damage to any one. The only change the turnpike makes is the substitution of tolls for taxes, and thus throws the burden of maintenance upon all who use it, without regard to residence, while as a public highway that burden must be met by the inhabitants of the township through which it passes.
7. “ The change in the old road, from a public highway passing through a rural district to a turnpike, makes no change in the use of the road. The turnpike will be used for the- same purposes and by the same modes of intercommunication as the old Philadelphia road had been.”
These findings of fact have not been shown to be erroneous; on the contrary, they are fully warranted by the evidence.
The opinion of the court holds that there is no express power in the charter to appropriate the old road, and that no such power is to be implied. It is conceded that no authority is given in terms by the charter to occupy the road, nor do I see how it is possible under the act of 1874 to insert such a clause. The most that can be expressly granted under that act is the power to construct a turnpike road between designated termini. It is fair to assume that said act authorizes and was intended to authorize the construction of such roads in the manner they have hitherto been constructed in this commonwealth. A turnpike is merely an ordinary country road, macadamized and rendered fit for travel at all seasons. I have knowledge of many turnpike roads in the counties around Philadelphia, where they are perhaps more numerous than in most other sections of the state, and they were all laid upon the beds of public roads. The pamphlet laws are full of charters granted by the legislature for the last one hundred years, and in very many instances no power is expressly given to occupy a public road. For obvious reasons, such grant was
What, then, is the effect of a power to construct a turnpike between designated termini ? Upon whom is the power devolved to locate the route ? Is it the directors of the company, or the Court of Common Pleas of Lancaster county ? The state has fixed the terminal points; for, although this charter was taken out under the act of 1874, its effect is precisely the same as though it had been granted directly by the legislature: Cochran v. Arnold, 58 Pa. 399. The termini are in the road; the most direct and the only practicable route, as found by the master, is upon its bed. To deny it the right to so locate it, is to deny it the right to build it at all, and to destroy its franchise. It is not, and ought not to be required to do impossible things, or anything that is not practicable, and whenever we speak of what is practicable, we must take into view the character of the thing proposed. It will not do to measure a little turnpike road, three miles and a half long, which is being constructed by a few farmers in an attempt to better a very bad piece of road, by the same standard which we apply to a great railroad
This court has decided in numerous instances, so numerous that the principle is so familiar as scarcely to need a reference to the cases, that where the state grants a charter to a railroad company, has fixed the terminal points, but not the route, the board of directors of such company may locate the road, and, when not restrained by the charter, may occupy a public road or street; and such discretion is not reviewable, except for a gross abuse. It is sufficient to refer to Commonwealth v. Railroad Co., 27 Pa. 339; Cleveland etc. R. Co. v. Speer, 56 Pa. 325. If an implied power exists in a railroad company to take a public road, I am at a loss to understand why it does not exist in the case of a turnpike company, especially when, as I have endeavored to show, the very object of such a charter, in nearly every instance, is to macadamize a road already in existence.
A point was made at the argument, and pressed with much vigor, that this company had taken a valuable county bridge, on the line of its road, appropriated it to its own use, and charges tolls thereon. This hardly rises to the dignity of an argument. The company has not taken the bridge, nor has it ever attempted to charge bridge toll; and I doubt even their right to include it in the mileage for which tolls are charged. But even if this right be conceded, the toll for each person passing over it would not probably exceed the sixteenth part of a penny, not sufficient to keep it in repair. If it is destroyed by any accident, the turnpike company must either rebuild it, or wholly abandon its property and franchises. The county does not complain of this “ outrage,” for obvious reasons, and I do not see that the appellants have any occasion to.
The building of this turnpike has not changed the use of the county road. It is still open for travel for carriages and teams,
It is to be presumed, when the legislature granted the power to construct this road, it intended to give all the power usual in such cases, and which has been exercised from time immemorial. That I am not mistaken as to the extent of that power, or at least the common understanding of it, will appear from the fact stated at bar, and not denied, that in nearly all of the thirty-seven turnpike charters granted under the act of 1874, and in the same terms, the roads have been constructed on public roads then in existence. The representatives of nine of these companies have joined in the request for this re-argument. If this judgment is to stand, these corporations must be seriously embarrassed. In every township in the state there can always be found one man to oppose all public improvements. It is not necessary that he should hold lands adjoining the road, or any real estate whatever. He need not even be a taxpayer. It is sufficient that he travels the road once a year with his mule, to invoke the extraordinary powers of a court of equity.
In view of the attenuated thread of equity which runs through this case, the delay of the complainants in filing their bill, and the great mischief which this injunction will work, I would have affirmed the decree of the court below, and left the complainants to their remedy at law.
Mr. Justice Green noted his concurrence in the foregoing dissenting opinion.
Lead Opinion
Opinion,
The re-argument and further consideration have failed to change our views, and we therefore adhere to the opinion and judgment heretofore filed in this case.
