5 Pa. Super. 65 | Pa. Super. Ct. | 1897
Opinion by
A proper determination of the power of a turnpike company
The obstruction of a turnpike is a public nuisance, for which indictment will lie: Northern Central Ry. Co. v. Com., 90 Pa. 300. In Lancaster Turnpike Co. v. Rogers, 2 Pa. 114 it was said that when the company ceased to usé a building erected in part on the turnpike as a toll house, it ceased to be there for a lawful purpose, and became a public nuisance. The chief, if not the only, difference between a turnpike and a common highway is that instead of being made at the public expense in the first instance, it is authorized and laid out by public authority, and made at the expense of individuals in the first instance and the cost of construction and maintenance is reimbursed by a toll levied by public authority for the purpose: Commonwealth v. Wilkinson, 33 Mass. 175; N. C. Ry. Co. v. Commonwealth, supra. “ It is the theory of the authorities that tolls are allowed the turnpike company to reimburse it for constructing and keeping the road in repair for safe and convenient use and that tolls are the equivalent of taxes: ” Elliott on Roads, 53 and cases there cited. This is only another method of taxing the public for these purposes: Geiger v. P. & R. Turnpike Road Co., 167 Pa. 582.
In the case of McClenachan v. Curwen, 6 Binn. 509, decided in 1802, it was held that the commonwealth had a constitutional right to authorize a turnpike company to lay out a road through the private ground of the citizens without making compensation for the soil, this upon the theory that such compensation was originally made in the six per cent allowance for roads in each purchaser’s particular grant. See also Plank Road Co. v. Thomas, 20 Pa. 91. This has been remedied by later constitutional provisions and legislation, but the fact that the landowner
Furthermore, the statute prescribes the manner in which the road shall be constructed; provides for the appointment of viewers by the court to ascertain whether it has been done in a “competent and workmanlike manner according to the true intent and meaning of the act,” before the company shall be licensed to erect gates and collect tolls; authorizes proceedings for throwing open the gates if the road is not kept in proper repair; fixes the rate of tolls; and reserves to the legislature the power to alter the same. All this is utterly inconsistent with the idea that the right of way acquired by the company is its mere private property. This being the nature of a turnpike it would seem that a statute authorizing a company incorporated in accordance with its provisions to construct and maintain a public highway of this nature between the points designated in its charter would by necessary implication give the right to take land for the purpose, especially when it provides as carefully as does the act of 1874 for securing compensation to the owner of the land so taken.
But the right does not arise by implication alone. Section 30 of tbe act of 1874 authorizes the directors of such corporation “ to appoint, agree and contract with such engineers, superintendents .... as they may think necessary to construct such road,” (clause 1) and “ with their superintendents, engineers,
“ The general rule,” says Mr. Justice Read, “ undoubtedly is, that charters of incorporation of private companies are to be construed strictly in favor of the commonwealth — so are grants to any persons, but they are to be construed reasonably. It is very clear that when the purpose of the franchise is the performance of a public act the grant is to be interpreted so as to enable the act to be done: ” Monongahela Bridge Co. v. Kirk, 46 Pa. 112. But the right claimed does not depend alone on a construction of the last qu'oted provision of the act of 1874. The sixth section of the general law regulating turnpike and plank road companies, approved January 26, 1849, P. L. 10, clearly gave the right to take the laud of private individuals for the roadway: Plank Road v. Thomas, 20 Pa. 91. And while this section was not reenacted in hsec verba in the act of 1874, as was the portion of the ninth section relative to entering upon contiguous lands, this does not furnish conclusive proof that the legislature intended to abrogate the right which it gave-As we have seen, it is a right without which the execution of the purpose for which the company is incorporated would generally be impracticable if not physically impossible; this is a public purpose; adequate provision is made for securing compensation for the land taken; and the act of 1874 expressly
We have thus passed upon the only question raised or argued by counsel, but there is a question of practice which we do not feel at liberty to ignore.
This is an appeal from two orders of the court below; the first approving a bond of the defendant company given for injuries that may be sustained by the appellant in consequence of the taking of his land by the turnpike company in the exercise of its asserted right of eminent domain; the second appointing viewers to assess such damages. The appeal was taken after the time appointed for the meeting of the viewers but before they made their report. The approval of the bond and the appointment of viewers were but successive steps in condemnation proceedings which are not yet ended. When they reach final judgment an appeal will lie in which the legality and regularity of the proceedings from the beginning may be reviewed, but the statute does not contemplate a separate appeal from each interlocutory order, as these undoubtedly are. The case might be different if the approval of the bond was an adjudication of the company’s right under its charter to take land for its road; but it is not. If the company had the right the bond was an essential prerequisite to the exercise of it, but if it has not such right under its charter the approval of the bond against the appellant’s objection did not give it and was
The appeal is quashed, the appellant to pay the costs.