Pennsylvania Railroad Company's Appeal

| Pa. | Feb 10, 1880

Lead Opinion

Mr. Justice Gordon

delivered the opinion of tne court, March 1st 1880.

About the right of the Lombard and South Street Passenger Railway Company to have its tracks on Dock street there is no dispute. It had occupied this ground from the year 1863 by virtue of a charter granted to it by the legislature of this Commonwealth. As between itself and the Pennsylvania Railroad Company it had the prior right, and that company, the present appellant, can justify its conduct, in entering upon and removing the appellees’ tracks, only by the exhibition of a better right — some superior authority. Such right and authority it claims by virtue of the Act of March 12th 1873, Pamph. L. 253. Upon the construction of this act the result of this controversy depends. By the first section thereof, the Pennsylvania Railroad Company was authorized to'construct a double track railroad upon the easternmost thirty feet of Delaware avenue, in the city of Philadelphia, as relocated between Queen and Washington streets, and as widened between the north side of Dock street and Christian street, with such connections with its Delaware river extention and turnouts as may be necessary. This section gives this company no power to go beyond the line of Delaware avenue at the northern or Dock street end of its route, for there it had neither connections nor turnouts. Were this all the defendant had to show for its right to enter upon Dock street and the appellees’ franchise, the case would be a short one, for here is no warrant whatever for the assumption of such powers. But it is said that such authority is found, if not by direct grant yet by necessary implication, in the second section. That part of this section, which is material to the point under discussion, reads as follows : “And the said company is hereby further authoi’ized to take and hold, in fee-simple, such ground and property, near and convenient to said avenue or streets, as said company may deem necessary for depot and other railroad purposes.”

Now, it is said, as power is here given to take and hold ground and other property, near or convenient to said avenue or streets, for depot and other railroad purposes, it must necessarily have the right to use the adjacent street and intervening franchise in order to gain access to its depot or other property. This may be so, but this plea o-f necessity is so frequently used to cover infractions of both public and private rights that, prima facie, it is suspicious, and must be closely scrutinized, especially where it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now of universal acceptation, that all acts of incorporation, and acts extending corporate privileges, are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken or withheld. This rule is to be held in all its rigor where the attempt is so to construe a corporate grant as to interfere with a previous grant of the same kind: Packer v. The Railroad Co., 7 Harris 211. It is true that a franchise is property, and, as such, may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of things-, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity, such as this, to be used as an excuse for the interference with, or extinction of, previously granted franchises would be to subject these important legislative grants to destruction on a mere pretence, in fact, at the will of the holder of the latest franchise.

Now, the appellant admits that it has entered upon, and, for its own uses and purposes, has destroyed part of the plaintiff s road, but it attempts to justify its action in that it was necessary for it so to do in order to reach its depot on Dock street. But the question recurs, how came it that this warehouse was placed in such a position that it became necessary to enter upon and cross Dock street in order to reach it? The answer is found in the testimony of Mr. Kneass, the assistant of the president of the railroad company. He says, the whole block, from Walnut to Dock, and from Delaware avenue to Water street, excepting some stores fronting on Dock street, at the corner of Water street and at the corner of Delaware avenue, was purchased for the use of a freight depot, and the offices necessarily connected therewith. But we learn from the evidence of Mr. Trautwine, whose ability as an engineer no one doubts, that .a practical entrance to this depot might be made either at the corner of Delaware avenue or at a short distance north of it. This, of course, would avoid any interference with the rights of the appellee, but the appellant did not purchase, or take, as it might have done, the property on the corner of Dock street and Delaware avenue, and so was obliged to enter upon, with its tracks, and cross Dock street in order to reach its warehouse. The reason why this property was not purchased or taken, is explained, by the witness first above mentioned, to have been that the necessities for that property were not imperative and the price therefor not satisfactory. He also says, further on, that the reason for not purchasing this property was one of economy merely. We thus discover that this necessity, by which the unlawful acts of this company, appellant, are sought to be excused is one of its own making — a matter af economy. It is cheaper to use Dock street, and the appellees’ franchise, than to buy the property above mentioned. A defence more weak, or one more barren of equity, could scarcely be imagined. Moreover, though a franchise may be property such as a corporation, vested with the power of eminent domain, may take for its own uses, a public street or highway is not such property. It is a public franchise and cannot be violated except by direct legislative grant: Commonwealth v. Erie and North East Railroad Co., 3 Casey 339; Cake v. Philadelphia and Erie Railroad Co., 6 Norris 307. But for the invasion of Dock street the appellant has shown no legislative grant; its structures upon that street are merely nuisances ; hence, it follows, that the plaintiffs’ tracks were protected from disturbance, if for no other reason, because they were upon ground dedicated to public use, and upon which the appellant had no right to enter.

The decree is affirmed, the appeal is dismissed, and the appellant ordered to pay the costs.

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Dissenting Opinion

Mr, Justice Paxson

delivered the following dissenting opinion.

The decree of the court below, which this court affirms, is mandatory, and requires the appellant company to remove their railroad tracks from Dock street west of Delaware avenue. It further enjoins the appellants from constructing or maintaining their said railroad on or across the bed of complainants’ (appellees’) railway on Dock street.

So far as t'he use of Dock street is concerned the city of Philadelphia is the only party having a right to object. The city makes no objection, and this portion of the decree has nothing to support it.

The effect of the remainder of the decree is to deprive the Pennsylvania Railroad Company of the use and enjoyment of its large freight depot on Dock street, in the city of Philadelphia; that is to say, the company is enjoined from using its track connecting the depot with their road, and are commanded to take up and remove said track. As this depot is the place where an enormous traffic centres, and the improvement itself is one of vast importance to the commercial interests of the city of Philadelphia, wc naturally look to see what inexorable rule of law it is that so suddenly and so rudely disturbs the large business of the city. The right should be very clear, and the injury to the complainants both serious and irreparable to justify such a decree.

The appellants laid their track on Delaware avenue, and built their depot on Dock street, under the authority conferred by the Act of 12th March 1873 (Pamph. L. 253), entitled “An act to authorize the Pennsylvania Railroad Company to occupy certain portions of Delaware avenue, in the city of Philadelphia, for railroad purposes, and make connections therewith, and to acquire property near or convenient to the said avenue for depot and other railroad purposes,” it was enacted as follows :

“ Whereas, for the purpose of increasing the business facilities and commercial advantages of the city of Philadelphia, the said city has, by ordinances, authorized the widening of a portion of Delaware avenue to the width of eighty feet, and has by a resolution of its councils, authorized the, Pennsylvania Railroad Company to occupy the easternmost thirty feet thereof, as relocated .and widened, for railroad purposes. Now, therefore,

Sect. 1. “ Be it enacted, &c., That the Pennsylvania Railroad Company be, and is hereby authorized to construct a double-track railroad upon the easternmost thirty feet of Delaware avenue in the said city, as relocated, between Queen and Washington streets, and as widened between the north side of Dock street and said Christian street, with such connections with its Delaware river extension and turnouts as may be necessary.

Sect. 2. “ And the said company is hereby further authorized to purchase, take and hold in fee-simple, such ground and property near or convenient to the said avenue or streets as the said company deem necessary for depot and other railroad purposes.” The remainder of the section provides for the modes of assessing the damages for property taken where the parties cannot agree upon the price.

Here is a grant of express power, as clear as language can make it, to construct the road on Delaware avenue; to purchase or take “ ground and property near or convenient to the said avenue, as the said company may deem necessary for depot and other railroad purposes.” The power to erect a depot near or convenient to their road being expressly given, the power to connect said depot with their road follows by necessary implication, even were the right to do so not expressly recognised in both the preamble and body of the act. And it matters not whether the depot is upon Delaware avenue; it is within the act if it is near or convenient thereto. It follows, therefore, that the argument that the depot can only be entered by a track from. Delaware avenue is without support. The appellants had the right, under the Act of Assembly, to select such ground as in their judgment was suitable for a depot; they were not confined to a frontage on Delaware avenue, and they are.entitled to connect the depot with their road in a suitable manner.

I do not understand it to be denied that the appellants are entitled to connect their depot with their track; but it is alleged that in doing so they cannot occupy any portion of Dock street, nor cross the track of the Lombard and South Street Road.

I have already said that the city does not object to the use of Dock street, and the Lombard and South Street Road, not being owners of the street, have no standing to object. Their objection to the crossing of their track presents another question, upon which they are entitled to be heard.

It is alleged that the crossing of the track of the street railroad is a taking of the franchise of the company (appellee), and that the Act of 1873 does not authorize such taking.

A great deal of learning has been wasted upon this point. A franchise is an intangible thing. It can neither be seen nor handled. When, therefore, we speak of taking a franchise under the right of eminent domain, we mean the taking of the property of a corporation. The invisible, intangible thing is never taken, except as the exercise of its right may be affected by the taking of its property. The track of the Lombard and South Street road was “ property convenient to the said avenue,” within not only the meaning but the precise language of the Act of 1873, and it was as much the right of the appellants to take it, subject to the duty of compensation, as it was to take the property upon which the depot stands. That the property of a corporation may be taken for public use, with any other property, is settled by a host of authorities. Indeed, the principle is not denied.

It is said, however, that there must be a necessity for such taking. Granted. The right of eminent domain rests upon necessity and that alone. Beyond this there is no such right. And of this necessity the sovereignty taking the property must be the judge: Darlington v. The United States, 1 Norris 382. There is no distinction in this respect between individual and corporate property. The same necessity must exist in either case.

The appellants contend that it is necessary to cross Dock street and the Lombard and South Street track in order to enter their depot. The answer to this is that the necessity is self-imposed; that by taking a lot at the corner of Dock and Delaware avenue under the right of eminent domain, and tearing down the buildings, they could, by the use of a reverse curve, have entered one corner of their depot with their cars. Upon this proposition this whole case has been made to turn.

Were it not that this principio has been practically adopted by the court, I would find it difficult to treat it seriously. It amounts to just this, that there is no necessity of taking the property of A. because you might have taken the property of B. In other words, the appellants might have avoided crossing the tracks of the street-road, by taking the lot and pulling down the house at the corner of Dock street. But has the owner of that house and lot no rights ? He could with equal justice and far more reason allege that there was no necessity for taking Ids property. What is there about the track of this street-road that is so sacred that other property must ho taken that it may be preserved ? It is property, merely, and is equally liable as other property to be taken under the right of eminent domain. I will never agree to clothe corporate property with greater sanctity than that of the individual citizen. It must share the same burdens, be exposed to the same risks, and respond in the same manner to the calls of the state.

If, however, the appellants had taken the lot at the corner of Dock street and Delaware avenue, and had thus obtained an entrance to the depot, it would not have been such an entrance as they were entitled to. It would have been an entrance at a corner of the depot and upon a short curve, while every intelligent man knows that to make a large freight depot fully available, the track should be laid as near the middle as possible. Here it was stated by the witnesses and not denied, that a corner entrance would leave “too much space on one side and too little on the other for the convenient handling of freight.” I do not think the legislature which authorized this costly improvement, and the councils of the city of Philadelphia which sanctioned and invited it, intended that their grant should be belittled and defeated by depriving the appellants of the usual and proper terminal facilities. It was not intended to give a depot which could not be used with the usual advantages. As the decree stands, however, it is impossible to use the depot to any extent. Even by the purchase of the lot referred to, it cannot be entered from Delaware avenue. It must be entered from Dock street or not at all. This is not denied by the witnesses, and is apparent from the plan submitted' upon the argument.

How, what is the grievance of the passenger railway company ? It is merely that about eighty feet of their track is cut off at .the east end of their road, and that passengers to reach the horse ears from Delaware avenue must cross the road of the appellants, and that this would decrease their legitimate -traffic. There is no averment in the bill of any injury beyond this. There is no taking of the franchises of the passenger railway company beyond the crossing of its track at grade, nor any averment that the road cannot be operated precisely as before, and without inconvenience.

It is patent that the injury alleged is of the most trifling and inconsiderable character, and can easily be compensated in damages. On the other hand, we have not only the enormous pecuniary loss which the decree must entail upon the appellants, but also the serious interruption to the commercial business of a great city. The appellants have acted in entire good faith, and in my judgment are fully sustained by the provisions of the Act of Assembly. I do not think a chancellor should be on the alert to strike down, for light reasons, great interests, and thereby embarrass, to a great extent, the business of the country. But I do not wish to elaborate, nor have I time to do so. These observations, hastily penned, are filed as containing some of my objections to this judgment. I must also be allowed to express the fear that the clothing of the track of a horse-car railroad with such sanctity that it may not be crossed by a steam road may lead to possible difficulties in the future. Such crossings have been quite frequent in the past, and the tracks of most of the steam roads are crossed by the tracks of the street roads. It is certainly so as to the road of the appellants.