Manufacturers Natural Gas Co. v. Birmingham & Brownsville Macadamized Turnpike Road Co.

243 Pa. 458 | Pa. | 1914

Opinion by

Mr. Justice Elkin,

We cannot agree with the learned counsel for appellant that the court below was without jurisdiction of the subject matter of this controversy, or that the modification of the decree of 1892 so as to permit the use of Welsbach burners was an abuse of discretion by the court below. This is especially true in view of the stipulation of counsel when the case was submitted, which, provided, inter alia, as follows: “Should the court be of opinion that the decree should be modified to the extent here suggested, or in any other manner, it is submitted to the court that it amend the decree of 1892 to such'an extent as may be deemed just and proper under the circumstances — each party reserving the right of exception and appeal.” The parties clearly contemplated the submission of the matters in controversy between them to the Court for decision, and neither party can now be heard to say that the court did not have the power to decide simple questions of fact, and the legal rights of the parties depending upon those facts, when it was. expressly stipulated that all of these matters should be submitted to the court.

The only part of the decree about which we have any doubt is that which imposes upon the borough the additional cost of maintaining the street lights equipped with Welsbach burners. In this connection it must be remembered that the gas company forced the issue which resulted in this litigation, and that the decree will have the effect of largely reducing the volume of gas necessary to be furnished for street lighting purposes. This is a direct benefit to-the gas company and it would seem inequitable’to impose additional burdens on'the borough for changes made at the instance and for the benefit of appellee. It may be that the introduction of Welsbach burners will furnish better lights to the borough than those formerly in'use, but the borough did not ask' for the change, and there does not seem to be' any justification -for imposing upon the borough the additional cost of maintaining the new kind of burners, installed at the instance and primarily for the benefit of the gas company. We are, therefore, of opinion that the decree should be modified so that the’ additional cost of maintaining the Welsbach burners over the expense, of maintaining the old street lamps should be borne by the . gas company. In all other respects the decree should be affirmed, unless the court below should be of opinion that under the circumstances the decree should be modified ás to the number of street lights to be furnished -with gas. The record will be remitted so that the court below can modify the decree in accordance with the views herein expressed.

Decree affirmed subject to such modification as the court below may think proper to make in accordance with the suggestions contained in this opinion. The record will be remitted for this purpose.

Costs of this appeal to be paid equally by the parties.