218 Pa. 269 | Pa. | 1907
Opinion by
No material fact in this case is in dispute. The Northern Coal and Iron Company was incorporated by Act of April 27, 1864, P. L. 627. In 1873 it was consolidated with the Plymouth and Wilkes-Barre Eailroad and Bridge Company. The new company retained the name of “Northern Coal and Iron Company ” and acquired all the property, rights, franchises and privileges of the Plymouth and Wilkes-Barre Eailroad and Bridge Company, which was incorporated by Act of April 12, 1859, P. L. (1860) 857. By its act of incorporation and a supplementary Act approved March 14,1865, P. L. 444, it was invested with all the rights and privileges and subjected to all the restrictions of the general railroad Act of February 19, 1849, P. L. 79, except those contained in the 18th section of said act. It was authorized to construct a railroad from the Susquehanna and Lehigh Railroad and operate the same as a public highway for the transportation of passengers or freight from a point at or near the intersection of the Susquehanna and Lehigh Eailroad and the North Branch canal in Wilkes-Barre or Hanover township, Luzerne county, to a point in Plymouth township on the Lackawanna and Bloomsburg Eailroad at or near the “ Boston ” coal breaker ; to build a railroad bridge across the Susquehanna river '; to connect its railroad with any other railroads then built or thereafter to be constructed, and to build lateral branches, not exceeding three miles in length, from' either terminus, or from any point on the line of its main road. The railroad and bridge which it was authorized to build were constructed prior to May 4,1871, the date of the incorporation of the city of Wilkes-Barre, which
The appellant does not seem to question the right of the ap
By the act of 1859, incorporating the Plymouth and Wilkes-Barre Railroad and Bridge Company, the right is given to con
If, at the time the Plymouth and Wilkes-Barre Railroad and Bridge Company was incorporated, it had been authorized to construct its main line through the city of Wilkes-Barre, with a right to extend branches from the same at any point, such a right would have carried with it the right to cross streets in constructing a branch, for without such a right the right to construct a branch could not have been exercised. It would, therefore, have, been inferentially conferred by the legislature, but would have been as valid as an express grant. “ The right of a company, therefore, to build a railroad on the street of a city depends, like the lawfulness of alt its other acts, upon the terms of its charter. Of course, when the power is given in express words, there can be no dispute about it. It may also be given by implication ; for instance, if a company be authorized to make a railroad, by a straight line, between two designated points, this implies the right to run upon, along or across all the streets or roads which lie in the course of such line : ” Commonwealth v. Erie & North-East Railroad Co., 27 Pa. 339. “ It does' not admit of a doubt, in this state, that a railroad company may use a public.street or highway when authorized by its charter expressly or inferentially: ” Cleveland & Pittsburg Railroad Co. v. Speer, 56 Pa. 325. “ The Act of the 19th February, 1849, P. L. 83, entitled c An act regulating railroad companies,’ contains no express authority for crossing the tracks of another company. It gives a general authority to lay out and construct a railroad between designated termini. It follows that the right to cross, when absolutely necessary, follows by necessary implication, otherwise the grant, in some instances, would entirely fail, as, for instance, where another railroad lies between its termini. In such case, if it could not cross, it could not build its road : ” Paxson, C. J., in Perry County R. R. Extension Co. v. R. R. Co., 150 Pa. 193.
When the main line of the Plymouth and Wilkes-Barre Rail
Though the streets of the appellant may, without its consent, be crossed by the tracks of the appellee in constructing its branch, it would have been better if plans for the construction of the same had been first submitted to the municipal authorities and approved by them, for by such a course, though the appellee was not bound to take it, the present controversy might have been avoided. Disputes may hereafter arise between the appellant and the appellee growing out of alleged abuse by the latter of the corporate right which it is now exercising. If the same should ever be abused, courts will restrain the abuse. At present no such abuse appears.
The injunction awarded by the court below is not in disregard of any of the rights of the public. The decree is that the appellant be restrained from interfering with the appellee in the erection of suitable elevated structures with clearance of not less than fourteen feet above the streets, and from interfering with such temporary use of the same as may be necessary in building such crossings, and as will not prevent the
The appeal is dismissed and the decree below affirmed at appellant’s costs.