Penna. R. v. Diem, 128 Pa. 509

Penna. R. v. Diem

128 Pa. 509 | Pennsylvania Court of Common Pleas, Lancaster County | 1889

Opinion,

Mb. Justice Williams :

This case presents a question which is both interesting and *520important. The tracks of the Pennsylvania Railroad through the village of Gap in Lancaster county are upon the slope or side of a hill. Prior to 1885 the company undertook the improvement of its line, and the village of Gap was one of the places where it was sought to reduce its grades. For this purpose the tracks were put upon a new location further down the face of the hillside, and the road-bed was dropped still lower by means of a considerable excavation. The Newport road crossed the tracks as originally located at grade. The new tracks were twenty-four feet northerly from the old, and the excavation left a perpendicular bank on the upper or southerly side nine feet high. The site of the Newport road was thus occupied and removed by the railroad company, and the road made impassable. The railroad company proceeded at once to supply the place of the piece of road thus occupied by them, by building an overhead crossing at a convenient point near by, and connecting the Newport road with it. The new road with the overhead crossing has been in use by the public for several years. The supervisors of the township now propose to excavate an approach to the new tracks on the line of the Newport road, and so open a grade crossing for public use. This bill was filed to prevent such action on their part. It avers in substance that it became necessary to change the site of the Newport road, in consequence of the improvement of the railroad track; that such change was made by the company at its own cost; that the new or substituted road is and has been for some time in actual use by the public; and that the proposed action of the supervisors would interfere with the safety of trains upon the railroad, and open to the public a crossing that would be both difficult and dangerous, without any legal authority therefor.

The important facts are not in controversy. The answer concedes and the master finds that the railroad company built a new road with a safe overhead crossing to take the place of the old road; that the new road is, and has been since its construction in use by the public, and that the crossing at grade now proposed would be dangerous. The master was of opinion however, and so reported, that the plaintiff’s right to the relief sought depended upon the answers to be given to two questions. These he stated and answered as follows :

“ 1. Has the Pennsylvania Railroad Company the right, if *521it shall find it necessary, between Philadelphia and Columbia, to change the site of any portion of any turnpike or public road, to cause the same to be reconstructed forthwith at its own proper cost on the most favorable location, and in as perfect a manner as the original road ? ” This question he correctly answered in the affirmative, holding that the company had the power in a proper case to take possession of a public road, and upon such taking to reconstruct it on other ground. The second question is, “2. Does the construction by the company of its new road-bed across the Newport road at Gap in the manner described, fall within the provisions of the act of assembly .authorizing such change of site ? ” This he answers in the negative, upon the ground that a crossing can under no circumstances justify a railroad company in changing the site of a public road, but that the public road must be carried over or under the railroad, where a crossing at grade is not practicable, without regard to the difficulty or cost of such work, and without reference to the public convenience or safety. The proposition is maintained that the right to change the site of a public road can be exercised only when the bed of the road is occupied longitudinally by the tracks of the railroad.

This is our question. The legislative provision on which it depends is in these words: “ That if said railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense on the most favorable location, and in as perfect a manner as the original road.” The question then in every case is whether a change of the public road is necessary. This is left by the statute to be determined in the first instance by the railroad company. The circumstances out of which the necessity must arise are not enumerated. Whether a longitudinal occupancy of the road-bed for any distance however small will create a necessity, or whether nearness to the public road, a deep excavation across it, a cutting away of the hillside under it upon a diagonal line to a depth of nine or ninety feet, will justify the removal and reconstruction of the road, is a question to be settled in the exercise of a sound discretion by the railroad company. Unless the power thus committed to the company is abused, or used without due regard to the public interests, it is conclusive *522of the question. If it is abused, such misuse of it may De restrained or redressed through the courts. Ordinarily the necessity grows out of the appropriation longitudinally of a portion of the public road for the tracks of the railroad, but we cannot say that this is the only way in which a necessity can arise. Nor is the necessity which presents itself in any given case to be an insurmountable one, in order to justify the reconstruction of the road. It is difficult to set any limits to what is possible to engineering skill and money in this age of marvels.

The question in any given case is not what is possible, but what is reasonably practicable. In the case before us, it appears by the findings of the master that the railroad company encountered the following difficulties in determining what to do with the Newport road. To make a crossing at grade would require a through cut eight feet deep at the side of the railroad, to be continued back from the road fully two hundred feet. At a distance of one hundred feet from the railroad this cut would be five feet deep on one side with a bank twelve feet high on the other. The descent along its whole length would be at the rate of seven and a half feet in a hundred. It would cross the tracks on a diagonal line, the tracks being on a three and a half degree curve. Both the curve in the railroad and the cut for the public road would contribute to make the crossing dangerous to the public and inconvenient to the railroad company. To cross by' an overhead bridge would require a structure three hundred and thirty feet long with a grade of fifteen feet in a hundred. An underground crossing would require an excavation under the tracks fifteen feet in depth, with an approach from the south of six hundred and fifty feet, and one from the north of three hundred and seventy-five feet, with an average grade of eight feet in a hundred. The company decided that neither of these was reasonably practicable, but that it was necessary, in view of all the circumstances, to remove the road a short distance and re-construct it on better ground, with better grades and with an overhead crossing.

This was done. If this was an unauthorized exercise of power, the objection should have been made before the new road was laid out by the court and the work of re-construction completed by the railroad. It might be raised in a proper way even now, but until it is raised and disposed of in an orderly *523and legal manner, the decision of the railroad company must stand. The supervisors are proposing on their mQtion and by their own authority to restore the crossing which has been supplied. They would overrule the decision of the railroad company on the question of necessity which the act of assembly left to it for determination, and proceed to undo what it has done in the premises, without the aid of legal process or the judgment of the courts. This will not do. The supervisors may as well open a grade crossing at any other point on the line of the railroad, without authority, as to do it here. The railroad company necessarily appropriated a part of the Newport road in the improvement of its tracks. It decided that it was reasonably necessary to remove or re-construct that part of the road. They sought and obtained the authority of the Court of Quarter Sessions of Lancaster for laying out and opening the new road. They did the work of re-construction at their own cost and built a safe overhead crossing at a convenient point. The public took possession of the re-constructed road and has used it for several years. These proceedings have the effect of informally vacating so much of the old road as is thus supplied, and there is no power in the supervisors to revise and reverse all that has been done and restore the supplied crossing.

The cases cited by the defendants in error are not in point. Penna. R. Co.’s App., 93 Pa. 150, was a case in which a railroad company sought to justify the appropriation of a street without direct legislative authority therefor. The same is true of the Penna. R. Co.’s App., 115 Pa. 514, and the rule was stated to be that the legislature may authorize a railroad company to lay its tracks in a public street, but that without such authority it has not the right to appropriate the highway in that manner. The precise question now decided is not, so far as we are aware, considered in any of our own cases, nor has the research of counsel brought to our attention any decided ease in which it is ruled.

The decree is reversed, and the preliminary injunction restored at the costs of the appellees.

Mr. Justice Mitchell dissented.