160 Pa. 367 | Pa. | 1894
Opinion by
The People’s Natural Gas Company was incorporated under the act of 1885, P. L. 29, known as the Natural Gas Act, for the purpose of supplying natural gas to the citizens of Pittsburg for use as fuel. The city had given its permission to the company to occupy the streets: with its mains and service pipes, and had undertaken to impose certain modes and restrictions upon it in the manner of conducting its business that have since been held to be unauthorized by law, and therefore without force or ■effect: Appeal of the City of Pittsburg, 115 Pa. 4. Pending the litigation over this • subject, the company began laying its mains into the city, and in July, 1886, entered upon Forbes street in the city for that purpose. The appellees, who are the owners of lots on said street, then began proceedings by bill in equity, to restrain the company from laying its gas main under the sidewalk in front of their premises on Forbes street. Relief was asked on two grounds. First, because the ordinances of the city of Pittsburg had not been complied with by the
The first question, and a controlling one, is whether the proceedings on the application for the appointment of viewers in this case can be sustained. It is urged that this question has already been passed upon by this court in a per curiam opinion disposing of the appeal by this company from the decree of the court below requiring a bond to be given as a condition precedent to the dissolution of the injunction restraining the laying of the gas main under the sidewalk in front of the premises of the plaintiffs. [McDevitt’s Ap., 6 Cent. R. 885; 7 Atl. R. 588.] It is probable the per curiam was written under the impression that the property affected was suburban. The question then raised was over the power of the court to impose the condition. While it might have been unnecessary, it could not be said to be error to require the giving of the bond; since the plaintiffs were alleging that they had suffered, or would suffer, direct injury in the disturbed condition of a sidewalk which it was their duty to keep in repair, and a consequential injury to their land abutting thereon. For whatever damage the company might do in the laying of its gas main, it was liable, and the chancellor had the power to require security to be given in advance for the payment of the amount when properly ascertained. Bejmnd the question raised by the appeal and decided by this court, the case is not authority. Upon that question, its authority is un
The act of 1885 confers the right of eminent domain on companies formed for the transportation of natural gas. In the exercise of this right they may enter upon private property or upon public streets or highways. If the entry is upon private property the company must try “ to agree with thé owner as to the damage properly payable for an easement in his or her property, if such owner can be found and is sui juris.” Failing to agree with the owner, the corporation must tender him a bond to secure the payment of damages; and if this is refused, must apply to the court of common pleas of the proper county to approve the sufficiency of the bond. After this has been done, viewers may be appointed by the court to assess the damages proper to be paid to the property owner “ for the easement appropriated by the company.” If the entry is upon a public street in a borough or city, the corporation must first procure the consent of the municipality, expressed “ by ordinance duly passed and approved.” So long as the gas main follows the street, the entry upon and occupation of the street is under the authority of the municipality. Whenever it leaves the street and enters the private property of an individual, then the dut} to negotiate with the owner arises; since entry upon and occupation of private property must be under authority derived from the owner. Forbes street was a city highway, and subject like all other streets in a city to urban servitudes for the benefit of the public. In land taken for a highway in the country, the easement acquired by the public is only for the purposes of a way over the surface. For all other purposes the land may be occupied by the owner so long as the public easement is not disturbed. We accordingly held in Sterling’s Appeal, 111 Pa. 35, that the maintenance of a pipe line under such a highway imposed an additional servitude upon the land. It may be a very slight one, but to some extent it abridges the rights of the landowner in the soil. Our brother Steiuiett said in that case: “ As to streets and alleys in cities and boroughs, there are reasons why a different rule to some extent should prevail.” These reasons are obvious. The necessity for drainage; for a water supply; for gas for purposes of light
But it is contended that the sidewalks are not a part of the street, and that in laying its pipes under the sidewalk the gas company has entered private property by virtue of its power of eminent domain and must treat with the owner for the damages it may have done. This contention cannot be sustained. The act of 1874 gives to cities the power “To cause to be graded, paved or macadamized any public street, lane or alley or parts thereof which is now or may hereafter be laid out and opened in any of the said cities .... and to regulate, grade, pave and repave, curb and recurb, the said footways or sidewalks; ” and to make regulations concerning the deposit of lumber, building material or other articles “ on any of the said footways, sidewalks or other portions of the said streets or alleys.” The street includes the whole of the land laid out for public use as a highway. The city determines how much of it shall be devoted to a cartway and how much to a footway, and regulates the grading and paving of both. The separation of one from the other by a line of curbing is for the security of that part of the public that passes along the streets on foot and for no other purpose.
The municipality has the same control over the sidewalks that it has over the carriage ways: Livingston v. Wolf, 136 Pa. 533.
The learned judge of the court below took the same view of this question and affirmed the defendant’s first point, which asked an instruction that the “ defendants have the same right
The first assignment of error is sustained. Also the 4th, 5th, 7tli, 8th, and 9th assignments.
The judgment is reversed and the order appointing viewers is set aside.
Sterrett, C. J., dissents.