Larue v. Oil City Street Passenger Railway Co., Appeal, No. 271

Appeal, No. 271 | Pa. | Oct 7, 1895

Opinion by

Mr. Chief Justice Sterrett,

This appeal is from a preliminary injunction granted on bill and affidavits, and afterwards “ continued until final hearing on the merits.” The bill, filed by the commissioners of Venango county against the defendant company, its president and directors, substantially avers that the county of Venango owns a certain bridge, over Oil creek within the corporate limits of Oil City, which was erected by the then borough of Oil City, under a special act of assembly, and was afterwards purchased by said county in pursuance of another special act; that the defendant railway company has commenced to construct its railway upon said bridge for the purpose of running its cars over the same after having been refused permission by plaintiffs to do so; that said bridge is not of sufficient strength for that purpose, and, in consequence of its insufficiency in that regard, there is great danger of serious accident to life and property from such use of the bridge, etc., and prays that the company, its officers and agents may be restrained from running street cars on the bridge, from making any alterations, changes or additions thereto, and also from obstructing the plaintiffs in their control and management thereof and doing such work as they may deem necessary thereon, etc.

It is unnecessary to refer at length to the special legislation under which the bridge in question was originally built and afterwards maintained as a toll bridge until it was sold by the borough of Oil City to the county of Venango. The details of that legislation will be found in the act of February, 1865, P. L. 729, supplement thereto of March 10, 1865, P. L. 731, and general laws for the protection of bridges, etc., which were made applicable to said acts. By the second section of the supplement the town council of the borough was authorized “ to collect toll from all persons except foot passengers, using ■said bridge, until the proceeds arising from said tolls will liquidate the bonds ” that were issued to pay for the construction of the bridge. As required by the act of 1870, P. L. 997, under which it was purchased by the county, the bridge was declared “ free of all tolls for all purposes thereafter.” By that purchase, the county became the owner of the bridge as fully to all intents and purposes as if it had been erected by the county under the general law relating to county bridges. The burden of maintaining the bridge was thus shifted from the borough to the county at large. As was said in Berks County v. Reading City, etc. Cos., 167 Pa. 118, the county thus became liable for its safety as a part of the public highway; and in consequence of the duty thus cast upon the county, it is clothed with the powers necessary to enable it to regulate the public use of the bridge so far as its own protection and the safety of •those using it may require. The county cannot close it against ■the public as an owner might close his house. It is bound to keep it open and in good repair, etc.

There appears to be no question as to the validity of defendant company’s charter. So far as they had the power to do so, the proper “ local authorities ” of the city within whose limits the bridge is located appear to have given their consent, in due form, as required by the constitution ; and, so far as the streets designated in its charter are concerned, the company’s right to proceed with the construction and operation of its road, with due regard to the rights of the general public therein, is not questioned by anyone, as the case is now presented. But, that ■does not give the defendant company the right to exclude the public from the use of the bridge which forms a link in the street or highway on which it is erected, or to so use the bridge as to render it unsafe for public travel. If the bridge is either of insufficient strength or of insufficient capacity to accommodate the general public travel and also defendant company’s ■cars and cannot be so strengthened or enlarged as to do so, it is very clear that neither the city nor the county at large is bound to provide the defendant with a suitable viaduct or other means of crossing Oil creek at the point in question. It may be that there are kindly disposed municipalities who gratuitiously open, grade and pave streets, and bridge streams for the accommodation of street railway companies, but they are certainly under no legal obligation to do so. As the case is now presented, the evidence tends to show, what is practically conceded, that unless the bridge in question is materially strengthened and enlarged, it is neither safe nor of sufficient capacity to accommodate both the general traveling public and the defendant company.

If that is found to be so, the question will be whether it is practicable to so enlarge or strengthen the bridge, or both, as to safely and conveniently accommodate all parties concerned. If it is found to be practicable to do so, and the parties litigant cannot come together and agree upon a proper mode of accomplishing that result, the only remedy appears to be something similar to that suggested in the supplemental opinion and decree in Berks County v. Reading City, etc. Cos., 167 Pa. 118.

In view of what has been so well said on the general subject by our Brother Williams, in the case above referred to, we think that further elaboration is neither necessary nor desirable. The case goes back for further hearing and final decree, and sufficient has been said to indicate the course to be pursued in case the controlling facts are found to be as now suggested by the record.

We are not prepared to say there was any error in continuing the preliminary injunction. The appeal is therefore dismissed, and it is ordered that the record be remitted to the court below for further proceedings. Costs to abide the result of the final decree.