56 Pa. Super. 384 | Pa. Super. Ct. | 1914
Opinion by
The only right or authority the Keystone Telephone Company of Philadelphia had to construct, under the highways of the city, its underground conduit system, in which to carry its cables and wires, and operate its telephone service is derived through its contract with the city. The terms of this contract are clearly set out
By the contract it is provided, that “All work to be done under this ordinance, both in the construction of the plant and in the maintenance and carrying on of the business under the same, shall at all times be subject to the ordinances of the city, now in force or which may be hereafter passed, and not inconsistent with the provisions of this ordinance relating to the construction, maintenance, extension, taxation, etc.,” and further, “The laying, construction, and maintenance of all wires, electrical conductors, conduits, tubes or cables shall be under the supervision of the chief of the electrical department and subject to his approval, and the same shall be laid under the rules and regulations of the Board of Highway Supervisors,” and by another section it is provided, that, “If in the laying of water or gas pipes, sewers, or other municipal work, it shall become necessary to change the location of any of the conduits, manholes or other structures, they shall be shifted or altered at the cost or expense of the owners, to such places as shall be directed by the Board of Highway Supervisors.”'
The duty or authority of the city to eliminate dangerous grade railroad crossings is not challenged by the plaintiff in this action, and in effecting these important
There was not any contract relation between the plaintiff and defendant. The shifting of the conduits was decided upon by the city authorities, and these were removed and replaced under the' direction and supervision of the Board of Highways Supervisors of the city. The city was the moving party in securing the elimination of dangerous grade crossings, which were a continuing menace to the safety of the public, and the elevation of the tracks could not be enforced by the city, so that it wisely contracted with the railway company to the advantage of each, and the ultimate protection and convenience of the travel on the streets. This work was done under the joint supervision of the city and the railway company, and it could not be urged with reason that if the work had been done by the city alone, the telephone company could claim to be paid by the city for the expenses it incurred in doing the necessary work to have the grades and levels for its conduits conform to the new street conditions, and unless the city would be liable in an action against it, this defendant is not hable.
The rules of the Board of Highway Supervisors, and the ordinances of the city, by which the construction of its conduits was authorized, provided that “It shall at all times be subject to the ordinances of the city,
As stated by Stewart, J., in Scranton Gas & Water Co. v. Scranton, 214 Pa. 586, It is the reasonable discretion of the municipal authorities that determines the extent of the change in the streets required to meet public necessities; and to that change whatever it may be, short of an abrogation or annullment of the company’s right to maintain its system of pipes in the public streets, the company must conform at its own cost and expense. The same principle was announced in Springfield Water Co. v. Railway Co., 45 Pa. Superior Ct. 516, by Head, J. The act of changing the grade was then, in every essential feature, a municipal act, and the defendant company was but the hand through which the necessary physical work was performed.
The judgment is affirmed.