Millcreek Township v. Erie Rapid Transit Street Railway Co.

216 Pa. 132 | Pa. | 1906

Per Curiam,

It is found by the court below that the defendant company with the consent of the road authorities of the plaintiff township laid its tracks upon the south side of the highway and has operated on them as a street passenger railway since 1901. Further, that the consent of the said authorities was with a reservation of the right to require the company “ at any time to remove its tracks from the side of said road to the center thereof,” and that the road authorities in pursuance of this reserved right have directed the company to so remove the tracks. The defendant having failed to obey the direction, this bill was filed, inter alia, for a mandatory injunction to make the removal. The answer of defendant set up among other things that it had not been able to secure the consent of the property owners on the north side to the change of the location of the tracks to the center of the road.

It is conceded that the franchise to build the road could not be exercised until the consent of the township authorities had been obtained, and that such consent, having been given on condition, was ineffectual without performance of the precedent condition. The consent of the abutting landowners on the south side of the highway was also a legal prerequisite to the location of the tracks on that side without regard to any agreement the township and the company might make, and had the company failed to obtain such consent its grant would not have been available, for failure of performance of a condition precedent, even by reason of its impossibility, defeats the grant. But in the present case the condition was performed, the consent obtained and the road constructed and operated for more than three years in compliance with all the legal requirements. The obligation to move the tracks to the middle of the road, though valid and binding, was part of a condition subsequent, as to which the rule is different. Impossibility excuses failure of performance, and defendant has set up a legal impossibility in the refusal of the property owners to consent and the absence of any legal means of compelling consent.

The learned judge below made a careful decree enjoining the performance of certain car service prayed for, and ordering the defendant to remove its tracks from the south side to the center of the road “as soon as it may lawfully be done.” This was all that the appellants were entitled to ask.

Decree affirmed.