222 Pa. 48 | Pa. | 1908
Opinion by
This bill was filed to enjoin the appellee from closing an alleged private grade crossing. The court below in its findings of fact none of which are excepted to by the appellants, goes back to the situation in the lifetime of William McKinney, their grandfather, who, in 1850, conveyed to the appellee a strip of land four rods in width for the construction of its railroad. Over this strip there was at that time a private road laid out by McKinney, and, after the construction of the railroad, it was kept open with the consent of the appellee for his use as a means of access to and egress from his property, consisting of several hundred acres of land. In 1851 the appellee constructed a crossing at grade on the line of this private road over its track on the land purchased by it from McKinney, and maintained the same at its own cost and expense continuously until November 7, 1906. From 1855 until November, 1906, this private road and crossing were continually used and traveled over by the general public. William McKinney died in July, 1860. All of his lands were devised to his sons, John and Robert, and the latter, the father of the appellants, became, by deed in proceedings in partition, the owner in fee of the lands adjoining the strip conveyed by his father to the railroad company. On June 12, 1882, Robert conveyed in fee to the appellee a strip of land on the north side of its railroad about 100 feet in width, adjoining that previously conveyed to it by his father, and containing 5.336 acres. In his deed to the appellee he reserved to himself, “ his heirs and assigns forever, the right to have, keep open, use and enjoy a wagon road over and across the Pennsylvania railroad and the premises hereby granted, .... the said road crossing hereby reserved to be constructed by the said railroad company at their own expense, at the grade of the said railroad as constructed.” On the same day the appellee agreed in writing, in consideration of the aforesaid deed to it and in view of the provision or reservation
While every private right of the appellants will be protected from encroachment by the appellee, the right which, in this proceeding, they allege is being interfered with must clearly appear. Its existence must be free from all doubt. What we are asked to protect is an alleged private right of way upon the roadbed of a railroad company over which 300 trains pass almost daily. The settled policy of the state is humanely against such a crossing, and we shall not be astute to discover error in the legal conclusion of the learned court, following unchallenged findings of fact, that the ancestor of the appellants had parted with the right which they now claim as his heirs.
The fee over which Robert McKinney’s right of way passed was in the appellee by conveyances from him and his father. It resisted the laying out of the public road, which embraced the right of way within its limits. Without the consent of the appellee, and in the face of its opposition, the public road
If Robert McKinney had signed his name to the petition for the appointment of viewers to lay out the public road and had not objected to its being laid out over his private right of way, doubt could hardly be entertained that he intended that right to be extinguished whenever the public road was actually opened. Iiis name appeared upon the petition, and it was presumptively his signature. The court acted upon it as such in appointing the viewers. A son, one of the appellants, testified that it was in the handwriting of another son, William, now deceased, but under an admission that William had transacted some business for his father. The statement is made by counsel for appellants in their brief of argument that there is not a word in the record to show that Robert McKinney had the least knowledge of the proceeding for the laying out of the public road. This is inconsistent with what appears from the records. The viewers reported that they had met for the discharge of their duties, “ pursuant to legal notice.” Presumptively this means that Robert McKinney had been notified of their meeting. That he knew they had been appointed and that the road as laid out by them would embrace within its limits his private right of way conclusively appear from a part of their report, the correctness of which the appellants have not questioned. It is as follows : “ The undersigned further report that they endeavored to procure from owners of land over which the road passes releases in writing from all claims to damages that may arise from opening the same, and having failed to procure such releases, we report that the benefits to be derived by the landowners from said road passing through their land will exceed the damages, and we annex a plot or draft of road laid out stating the courses and distances and noticing briefly the improvements through which the same passes.” Robert Mckinney was one of the owners of the land over which the road passed, and from him,
“ 5. By participating in an act, the purpose and effect of which were to increase the burden of the railroad company, by forcing upon it the responsibility of a public crossing at grade, instead of a mere private crossing at grade, Robert McKinney renounced and abandoned his private easement in said road and crossing and the same was thereby extinguished. There is no question of damages or compensation.
“ 6. The Pennsylvania Railroad Company, in making its contract with the borough of North Braddoclcfor the building of the viaduct and the vacation of the public road and crossing, had good reason to rely upon the proceeding in the court of quarter sessions, at No. 3, September sessions, 1884, as evidence of Robert McKinney’s abandonment of his private easement in said road .and crossing . and the heirs of Robert McKinney should not, at this late day, be heard to deny it.
“ 7. The vacation of the public road and Bessemer Grade crossing by the Borough of North Braddock, by ordinance of November 6, 1906, approved by the Burgess, November 7,
The most that can be said of appellants’ claim to an existing private right of way over the roadbed of the appellee, is that it is involved in doubt, and for this reason alone the bill ought to have been dismissed. Grade crossings are constant perils not only to those using them, but to those upon trains passing over them, liable to be wrecked by collisions. Such crossings, whether private or public, ought in all cases to be done away with, and equity will protect a right to use them only when such right is so clear that a chancellor must recognize it. No class of cases calls more strongly for the application of the rule that all doubtful questions must be resolved against an injunction.
Appeal dismissed and decree affirmed at appellants’ costs.