170 Pa. 249 | Pa. | 1895
Opinion by
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
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,
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.