77 Pa. Super. 495 | Pa. Super. Ct. | 1921
Opinion by
The question is whether Lancaster County is liable to assessment by the Public Service Commission in a pro
Lancaster County appealed. It expresses no dissatisfaction with the proposed improvement, but complains that the order is not reasonable and in conformity with law because, so it says, the highway was properly constructed and safe for travel before the railway was con- ■ structed overhead, and as the dangerous conditions on the highway resulted from the railroad construction, the railroad company should now be required to pay the entire cost of the improvement.
The pertinent power of the commission is conferred by section 12, article V, as amended by the Act of July 17, 1917, P. L. 1025: “The commission shall also have exclusive power, upon its own motion or upon complaint, and after hearing as hereinafter provided, of which all the parties in interest, including the owners of adjacent property, shall have due notice, to order any crossing aforesaid, now existing or hereafter constructed at grade, or at the same or different levels, to be relocated or altered, or to be abolished, according to plans and specifications to be approved, and upon just and reasonable terms and conditions to be prescribed by the commission.
“In determining the plans and specifications for any crossing herein mentioned, the commission may lay out, establish, and open such new public highways as, in its opinion, may be necessary to connect said crossing with any existing highways or to make said crossing more available to public use; and may abandon or vacate such highways or portions of highways, as, in the opinion of the commission, may be rendered unnecessary for public use by the construction, relocation, or abandonment of any of said crossings.
“The compensation for damages which the owners of adjacent property, taken, injured or destroyed, may sustain in the construction, relocation, alteration, or abolition of any such crossing specified in this section, for
To support its contention the county contends that when the bridge was constructed.over the highway about 1876, section 13 of the General Railroad Act of February 19,1849, P. L. 79, was applicable. It provides: “That if any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location, and in as perfect a manner as the original road: Provided, that the damages incurred in changing the location of any road authorized by this section, shall be ascertained and paid by such company, in the same manner as is provided for in regard to the location and construction of their own road.” Appellant says that as respondent company succeeded to the rights of the company that originally built the railroad bridge, it is subject to the liability imposed by section 13 of the Act of 1849 and to indictment for its violation upon the authority of decisions like Commonwealth v. Railroad Co., 35 Pa. Superior Ct. 416. It also contends that “The commission erred in not finding that the proceeding be
We cannot agree with appellant’s contention that changing the abutments of,the bridge is incidental within the provisions of the Public Service Company Law
The only remaining contention requiring notice is that the county is not a municipal corporation “concerned” or “interested” in the improvement within the meaning of the statute. The learned counsel for the county in their printed brief say, “If there ever was a case in which the entire expense of relocating the overhead bridge and its abutments and track work should be ‘borne and paid’ by the public service corporation, it is the case at bar.” But the duty of deciding that in the first instance has been conferred upon the commission; it has made the apportionment; and no reason has been furnished to us for disturbing it; we think the order is reasonable and in conformity with law. The reconstruction of the crossing results in substantial local improvement; it was formally requested by hundreds of residents of the county; the highway is straightened by the removal of the two curves; the grade of the hill is reduced to eight per cent; the overhead clearance is increased; a clear span of 48 feet results; the obstruction to view theretofore existing is removed.
In Paradise Township v. Pub. Ser. Com., 75 Pa. Superior Ct. 208, we held that a township may be concerned or interested within the meaning of the statute and therefore liable to assessment, and no reason has been suggested to us for holding otherwise with regard
,We see no basis for the criticism of the order that the county is required to pay to the railroad company on the certificate of the commission, etc. By its order the commission retains complete control of the work and the payment therefor as contemplated by the 12th section of article 5. See also Schuylkill County v. Public Service Commission, 77 Pa. Superior Ct. 504.
The order is affirmed, the costs of the appeal to be paid by appellant.