221 Pa. 454 | Pa. | 1908
Opinion by
In compacting the ninety-one assignments of error which here confront us into five questions, and very clearly and concisely stating these, the learned counsel who argued the case for appellant has saved us both time and labor which otherwise would have been unprofitably expended. We shall confine ourselves to these questions, observing the order in which
1. In reversing the decree this court directed that the plaintiff’s bill be reinstated, and an injunction awarded, with leave
2. May a railroad be lawfully constructed as a branch, when the branch is proposed to be laid along a street which for more than 2,500 feet is already occupied by an existing railway ? The reference here is to the occupancy by the defendant company of part of Edgmont avenue on which the Chester Traction Company had a line of street railway. From an examination of the map furnished us, it clearly appears that the 4,000 feet on Edgmont avenue over which defendant’s extension was projected, .and upon which are the tracks of another company, is the nexus which links all the extensions of the defendant’s road in the city of Chester with the defendant’s chartered route. A break at that point, which must result if appellant’s
3. Can a street railway company make use of the tracks of another railway to connect its chartered route with the
4 and 5. These questions relate to the effect of the abandonment by the defendant company of that part of its chartered route which led to Elwyn, and the substitution therefor of the line to Media. The court below found as a fact that the abandonment of the part of the chartered route here complained of, was pursuant to authority derived from the stockholders of the company; that the consent of the townships through which the chartered route led was duly granted, and that the action of the company and the consent of the several municipalities were duly certified to the secretary of the commonwealth. We may add that the evidence shows acts of acquiescence and ratification on the part of the city of Chester — not here complaining — quite as conclusive. The proceedings taken to effect a variation from the chartered- route being found regular, and the acquiescence of the municipalities affected being shown, it does not rest with the plaintiff to call in question the propriety or necessity of the deviation, or the sufficiency of the defendant’s action in this regard. The deviation from the chartered route in this case was determined upon evidently by considerations of public convenience. The defendant company had at least the right to the benefit of such presumption, in the absence of anything appearing to the contrary. In Penna. Railroad Co. v. Street Railway Co., 176 Pa. 559, we held that: “ The occasion for such divergence and its extent, are questions of location, and the decision of them primarily is within the discretion of the railway company. If the variance from the charter route is greater than is necessary, or the charter route itself is open to objection, the commonwealth alone can be heard to make it in the interest of the general public.”
This proceeding was under the Act of June 19, 1871, P. L. 1360. The act authorized no inquiry in such cases except as to the charter right to do the act complained of. Here, the de
The assignments of error are therefore overruled, the appeal is dismissed at the costs of appellant, and the decree is affirmed.