213 Pa. 36 | Pa. | 1905
Opinion by
The appellee is a railroad company incorporated under the Act of April 4, 1868, P. L. 62. In addition to locomotive engines it uses electricity as a motive power, which is carried to motors on the cars through a third rail. After locating the route of its road over the land of plaintiff it was unable to agree with him as to the amount of damages which he sustained, and, to secure the payment of the same, a bond was filed and approved by the court of common pleas. After its approval he undertook, by force, to prevent the construction of the railroad upon his property, but, on a bill filed by the company, was perpetually enjoined from so interfering with it. When he subsequently discovered that it intended to operate its road by electricity as one of its motive powers, he filed this bill, under the provisions of the Act of June 19, 1871, P. L. 1360, alleging that it did not possess the right or franchise to so operate its road, and, if permitted to do so, he would be injured in his
The Act of February 19, 1849, P. L. 79, was not passed for the incorporation of railroad companies, but for the regulation of those that might thereafter come into existence by special acts of assembly creating them. Up to that time no general law had been passed providing for their incorporation. Such an act, providing for their formation and regulation, was passed April 4, 1868, P. L. 62,' and under it the appellee was incorporated. This act provides that each company incorporated under it “shall be entitled to exercise all the rights, powers and privileges, and be subject to all the restrictions and liabilities of the act regulating railroad companies, approved the nineteenth day of February, one thousand eight hundred and forty-nine and the several supplements thereto, as fully and as effectually as if said powers were specially incorporated in said charter.” The charter of the appellee authorizes it to construct, maintain and operate a railroad for public use in the conveyance of persons and property. The road cannot be operated nor its franchises exercised without motive power ; but nothing is stated by the legislature about the kind to be used. The act is silent upon the subject, and, in the absence of a direction in the statute creating the appellee that any particular power is to be used, the kind to be adopted must be left to the judgment of those operating the road. In occupying the land of the appellant for railroad purposes the appellee took exclusive possession of it, and, in operating its road upon it, the appellant, who is excluded from it, has had
Turning to the act of 1849, to the provisions of which the appellee is subject, there is no limitation found upon the kind of motive power that is to be used by railroad companies. By the second section of the act they are authorized “ to purchase, receive, have, hold, use and enjoy goods, chattels and estate, real and personal, of what kind and nature soever, as may be necessary or conveniént to the procuring, owning, making, maintaining, regulating and using their railroad, the locomotives, machinery, cars, and other appendages thereof, and the conveyance of passengers, the transportation of goods, merchandise and other commodities.” By section 18 it is provided “ that upon the completion of any railroad authorized as aforesaid, the same shall be esteemed a public highway for the con
Rut it is contended that the powers conferred by the statutes on the corporations which they create must be construed in the light of conditions existing at the time they were passed, and, in the present case, as electricity was not known as a motive power in 1849, and even in 1868, the appellee has no right to use it and must be confined to the then known motive powers for railroads. If this doctrine were to prevail, the rails of railroads would still be confined to the strap rail, nailed upon wooden stringers, with snake-heads not infrequently forced up through the floors of the cars, instead of the present heavy steel rails insuring the absolute safety of the running of cars ; pigmy locomotives, burning only wood, would still haul a few light cars at a slow pace on uncertain schedules, instead of the present massive engines which, with safety and at speed not dreamed of fifty years ago, carry long trains of cars filled with passengers and freight; and the old hand brake would not be supplanted by the air brake. These and many other appliances and devices utterly unthought of in the days of the legislation under which our present railroads came into being, could not be used.
In the absence of a limitation upon the power of a railroad company to use any appliances, or of a prohibition as to the use of any particular one, it is the duty of the company to use what, in the light of its observation and experience, is
In Millvale Borough v. Evergreen Railway Co., 131 Pa. 1, the road of the railway company was originally built and operated as a narrow gauge steam railroad, and it was contended that it could not widen the same to a broad gauge. Of this contention it was said: “It might as well be argued against the proposed change of gauge that because a particular kind of rail was in vogue, and was actually adopted and used by a railroad company at and after the time of the construction of its road, it could never adopt another, but was concluded by its first choice, upon the theory of an exhaustion of its power. It will be seen at once that such an argument is entirely fallacious and untenable. Instead of such being the law, we have always held that railroad companies not only have the right, but are by law bound, to make use of the latest and best inventions and appliances tending to promote the comfort and safety of the public. This is notably the case in the matter of spark-arresters, and is equally applicable to couplings and other contrivances. The writer remembers when the strap rails, laid upon longitudinal stringers and fastened down with spikes, were in common use on steam railroads, and he also remembers that snake-heads at the end of the rails resulted from this method, occasioning frequent accidents and loss of life. When the T rails came into use, it became the undoubted legal duty of the old companies to abandon the flat rail, and use the new one, and any company failing to perform this duty would very quickly have received forcible and emphatic admonition ■to that effect both from juries and courts.”
In Halsey v. Rapid Transit Street Railway Co., 47 N. J. Eq. 380, the question of the right of the railway company to use electricity as a motive power was raised, and Van Fleet, V. C., in delivering the opinion of the court, said : “ The right of the defendant to use electricity as its motive power is clear. The defendant was organized under a general statute, authorizing
Another case that may be cited is Wilmington City Railway Co. v. The Wilmington Railway Co., Court of Chancery of Delaware, 46 Atl. Repr. 12, where it is held: “ It would seem that when the broad term, ‘ city railway,’ is used, the term must be taken to mean only what is essential to the definition of the term, and obviously no particular motive power is essential. Whenever a statute specifies a motive power to be used, the expression of that power may be construed to exclude any other. The general rules of construction seem to me to require this. But, when an exclusive right is given in
We have, it is true, as is contended by the appellant, designated railroads organized under the act of 1868 as steam railroads : Potts v. Quaker City Elevated R. R. Co., 161 Pa. 396. But this designation has been adopted only as a natural one to distinguish such railroads from street passenger railways, and in no case in which it has been used is there any intimation as to the limitation upon the power of a railroád company in the adoption of its motive power. With this .question now before us, we are clear that the appellee is not prohibited from using electricity as a motive power, and if, in its judgment the same ought to. be used for the most efficient exercise of its right to operate its railroad, it may be used.
The decree of the court below is, therefore, affirmed, and this appeal dismissed at the cost of the appellant.