Northern Central Railway Co. v. Harrisburg & Mechanicsburg Electric Railway Co.

177 Pa. 142 | Pa. | 1896

Opinion by

Mr. Chief Justice Sterrett,

It is unnecessary to consider all the questions presented by this record. Such of them as are worthy of notice have been referred to, at least briefly, by the learned president of the common pleas in his opinion, findings of fact and conclusions of law sent up with the record. The general and controlling question, however, is, whether a company chartered under the street railway act of May 14,1889 (P. L. 211), has the right to construct, maintain and operate its road across the lines of a steam railroad company, without the consent and against the protest of the latter, at a point where its roadway is not crossed by a public highway ? The answer to this question must, of course, be sought for in the expressly granted or necessarily implied powers and authority with which the street railway company has been invested by the law under which it was created and subject to which it continues to exist. If the right referred to cannot be found therein, it necessarily follows that the question must be answered in the negative.

Section 1 of the act of 1889 provides: “ That any number of persons, not less than five, may form a company for the purpose of constructing, maintaining and operating a street railway on any street or highway upon which no track is laid, or authorized to be laid or to be extended under any existing charter, with the privilege of so much of any street used or authorized to be used under any existing charter, as is hereinafter provided, for public use in the conveyance of passengers, by any power other than by locomotive; and for that purpose may make and sign articles of association, in which shall be stated .... the streets and highways upon which the said railway is to be laid and constructed.” etc.

Section 4, authorizing extensions and branches, declares that “ the act of the company authorizing any extension or branch shall distinctly name the streets and highways on which said extension or branch is to be laid or constructed.” It also provides that “ no extension or branch shall be constructed on any street or highway upon which a track is laid or authorized under any existing charter, except as thereinafter provided.”

Section 14 authorizes the “use of such portion of the track of any other company, already laid down, as may be necessary to construct a circuit upon its own road at the end thereof.” The length of track, to be thus used, “ only with the consent of the local authorities of the city, borough or township, in no event, shall exceed five hundred feet of single track.” It also prescribes the mode in which compensation for such use shall be made, etc.

The next section declares: “ No street passenger railway shall be constructed by any company incorporated under this act within the limits of any city, borough or township without the consent of the local authorities thereof, nor shall any street railway be incorporated hereunder which shall not have a continuous route from the beginning to the end, forming a complete circuit with its own track, excepting the five hundred feet to be used under section fourteen.”

Section 17 authorizes the occupation and use of turnpikes, not exceeding sufficient width for two tracks, and requires that compensation for such use shall be first made, to the owner or owners of such turnpike or turnpikes, in the mode prescribed in section 14 aforesaid.

With the exception of above mentioned restricted and qualified rights, to use a small section of another company’s track in forming a circuit, and to occupy and use longitudinal strips of turnpikes, etc., street railway companies chartered under said act are certainly not, in express terms, invested with any other power or authority in the nature of eminent domain. Indeed, the specific grant of these qualified rights is strongly indicative of legislative intention to withhold from such companies every other power of eminent domain. This conclusion is further fortified by the provisions intended to restrict them to established streets and highways as the location of their main lines, extensions and branches. As we have seen, their right to construct, maintain and operate street railways is specifically limited to existing streets and highways. The names of the streets and highways selected by them must be stated in each company’s articles of association. In the recorded action of the company, exercising the branching power, etc., authorized by the act, it must also “ distinctly name the streets and highways on which said extension or branch is to be laid or constructed.” In brief, in the selection or adoption of the route, either of their main line, or of any extension or branch thereof, they are expressly confined to established streets or other avenues in cities and boroughs, and to public highways in townships, subject to such further restrictions, even as to them, as are specified in the act. Outside of and beyond the restricted power and authority, as to selection and adoption of a route etc., thus granted, they are not invested with any other authority in that regard, except such as may be necessarily implied. Without ignoring the well settled rules applicable to the construction of charters, it is impossible to reach any other conclusion than that the legislature, in this carefully drawn and well guarded act, intended to withhold from companies chartered thereunder everything in the nature of a roving commission under which they might assert the right to locate, construct and operate street railroads wherever they pleased.

It was successfully contended in the court below that the authority, given in section 18 of the act, “to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise,” is general in its application and confers an unqualified right to cross a steam railroad anywhere without regard to whether there is an established street or highway crossing at the same point or not. This is a grave mistake. As we have seen, location, construction and operation of street railways are authorized only on established streets and highways. Section 18 is evidently predicated of that fact, and hence the authority therein granted is necessarily applicable only to crossings at points where the railroad is crossed by a street or highway. . In other words, it refers only to crossing at a point where the street or highway, on which the street railway is located, crosses the steam railroad. To hold otherwise would not only be contrary to the manifest intention of the legislature, but it would involve the constitutionality of the eighteenth section.

As to the property on which the alleged trespass was threatened, the learned trial judge found that, “ at the place of crossing, plaintiff has a right of way sixty feet in width, and an adjoining strip of land twenty feet wide which was acquired by deed;” and, in sustaining plaintiff’s 18th and 19th exceptions to his previous rulings, he further found that said twenty feet wide strip of land is owned by it in fee, that prior to filing the bill defendant company attempted to cross plaintiff’s land and right of way at the point in question, and that plaintiff had reason to apprehend that such attempt was imminent, etc., but, in view of the facts, as he found them, he held as matter of law that plaintiff’s right of way and ownership in fee of said strip of land were immaterial; that the right to cross plaintiff’s railroad, etc., at an elevation of about twenty-two feet above the surface of its tracks was conferred upon the Harrisburg & Mechanicsburg Electric Railway Company by section 18 of the act, and then said: “ The long narrow piece of land referred to, which is held in fee is essentially part and parcel of the railroad, just as much so as the easement which it adjoins, and the right to cross it is as clearly given as is the right to cross the easement.” For reasons already suggested we think he was clearly wrong in this. Aside from the ownership in fee of the twenty feet wide strip, the plaintiff has a substantial property interest in its right of way which the defendant is bound to respect. While that interest cannot be called a fee, it is a species of title that has some of the incidents of an estate in land. As was well said by our Brother Mitchell in Railroad Co. v. Reading Paper Mills, 149 Pa. 18, “Such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure including necessary foundations, and to deal with it, within the limits of railroad uses, as absolutely and as unconditionally as an owner in fee. There was no such easement at common law. ... It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cessor of the use for railroad purposes. But whatever it may be called, it is in substance an interest in the land special and exclusive in its nature and which may be the subject of special injury . . . . , and therefore within the rule which governs the application of equitable relief.”

There is also manifest error in the 10th finding of fact, viz:

“ So far as the evidence has disclosed, the building of defendant’s railway and the running of cars thereon will not injure or affect the operation of plaintiff’s railroad, or inflict upon plaintiff any actual damage. There will be no increase of danger, from accident or other cause.”

Aside from. the unauthorized occupation of plaintiff’s property by spanning the same with an overhead bridge or viaduct, one hundred feet or more in length and about twenty-two feet above its tracks, at a point where there has never been an overhead or grade crossing of any kind, it is impossible to reach the conclusion that such a superstructure, with electric cars running thereon at frequent intervals, will not result in a greater or less increase of danger to plaintiff company, its patrons and employees. To what extent the danger, from accident or other cause, would be increased, would of course depend very largely on the degree of care and skill exercised in the construction and maintenance of the bridge and in the operation of the street railway thereon, but that, under the most favorable circumstances, there would be an appreciable increase of danger, no one can doubt.

It follows from what has been said that plaintiff had standing to resist the threatened invasion of its rights by the Harrisburg & Mechanicsburg Electric Railway Co., one of the defendants, and, upon the facts shown by the pleadings and proofs, it was entitled to the relief prayed for.

The decree dismissing the bill is accordingly reversed, and the perpetual injunction, specially prayed for, is now granted against the Harrisburg & Mechanicsburg Railway Company, with costs to be paid by said company; and, as to the other defendant, the bill is dismissed.