225 Pa. 147 | Pa. | 1909
Opinion by
The complaint of the borough of Olyphant is that the court below refused to enjoin the appellee from laying additional railroad tracks across Dunmore, Moosic and Bell streets — public highways within the municipal limits. By the Act of March 24, 1870, P. L. 554, the appellee, whose corporate title at that time was “The president, managers and company of the Delaware and Hudson Canal Company,” was authorized to locate and construct a railroad from a point in the town of Olyphant, in Luzerne county, to the city of Carbondale, in the same county. The second section of the act conferred upon the company all the power, authority and privileges given in the tenth section of the railroad Act of February 19, 1849, P. L. 79, and all damages in the location and construction of its railroad for right of way and land or materials taken were to be secured and assessed in the manner provided by the act of 1849 and the several supplements thereto. At that time the borough of Olyphant was not incorporated. As a town or village it formed a part of the township of Blakely in Luzerne county. In 1870 the appellee began the construction of a single track between the terminal points named in the act, and the same was completed in 1871. It traversed the section in controversy in this case. What are now Moosic and Dunmore streets were, in 1871, public roads in Blakely township. By a decree of the court of quarter sessions of Luzerne county the town of Olyphant was incorporated as the borough of Olyphant on December 18, 1876. In 1886 the appellee built an additional track between the same terminal points. This track was laid across the streets in question at grade without objection. In 1906, in pursuance of action by its board of directors, the appellee proceeded to lay two additional tracks for the purpose of making its road one of four tracks, with necessary switches and sidings, from Carbondale south to and through the borough of Olyphant. The third track had been laid across Dunmore street, and the third, fourth and part of a fifth for switching purposes had been laid across Moosic street when the present bill was filed. Before laying these
If the act of 1870 conferred upon the appellee the power to locate and construct its road from a point in the village of Olyphant to Carbondale, there went with that power the right to cross the township roads, and when such roads subsequently became municipal streets upon the incorporation of the borough of Olyphant, the right of the appellee to continue to cross them remained unimpaired: and if the appellee was empowered to locate and construct its road through and across territory which afterwards became the site of the borough of Olyphant, no streets laid out and opened by that borough can interfere with the rights which were conferred upon the appellee by the act of 1870,- for the site of the borough was selected with all those rights resting upon it, to exercise which municipal consent is not now needed: Northern Coal and Iron Co. v. Wilkes-Barre, 218 Pa. 269.
The right of the appellee with which the appellant would interfere was clearly conferred by the act of 1870. It is authorized to locate and construct a railroad between designated termini, and that it might construct the said road it was expressly given the power of eminent domain as conferred upon railroad companies by sec. 10 of the act of 1849. Under a claim of title, acquired either by purchase or condemnation, it is in possession of a strip of. land nowhere of a less width than sixty feet. Though it was a foreign corporation at the time the act of 1870 was passed, the power conferred upon it by our legislature is to be judged by the same
It is urged that the act of 1870 is unconstitutional in that its title fails to give notice of the power of eminent domain conferred upon the appellee or of its right to connect with the Jefferson railroad at Carbondale. Its right to connect with the Jefferson road is not involved in this proceeding, and the same is true of its power of eminent domain, for, as stated, the court has found that it is in possession under a claim of title of all the land it needs for its additional tracks; but if the sufficiency of the title in giving notice that the power of eminent domain is conferred by the act is to be regarded as a question before us, we have no doubt that it meets the constitutional requirement. The purpose of the act, as disclosed in its title, was to authorize the appellee to construct a railroad. Such.a road cannot be constructed without acquiring land for its construction, and it is a matter of common knowledge that, as a rule, railroads are constructed over land acquired under the power of eminent domain, without which they could not be constructed. This power was germane to the construction of. the appellee’s road, and notice of authority to construct it ought reasonably to have led to an inquiry into the body of the bill.
Though the appellee has acquired a right of way sixty feet in width between the terminal points named in the act of 1870, counsel for appellant contend that it cannot now use this right in laying additional tracks, because it exhausted its power to construct a railroad when it laid the first track. Section 10 of the act of 1849 is a quasi part of the charter of the appellee and must be so regarded in passing upon its powers involved in this proceeding. By that section it was empowered “to lay down, erect, construct and establish a