223 Pa. 133 | Pa. | 1909
Opinion bt
In 1892 the Pittsburg and West End Passenger Railway Company, the appellant, having by its charter and an ordinance of the city of Pittsburg the right to operate a street railway over certain streets in the city to the Point bridge, and to cross the same, filed a bill to enjoin the Point Bridge Company, the appellee, from interfering with its right of passage over the bridge. On this bill a decree was made, restraining the bridge company from interfering with the right of the complainant to use the bridge and directing that for the use of it there should be paid $8,000 per annum, payable monthly, with the provisos that, “this right, shall not control for the use of
On October 11, 1906, the appellee presented a petition to
The error into which the court below fell was that, by the decree of 1892, a “franchise” or “right” was granted to the appellant to operate its cars across the bridge. Its right to use the bridge as a part of one of the highways of the city existed independently of any action by the court, and could not have been taken from it by that tribunal. The right belonged to it under its charter from the moment the city of Pittsburg, by the ordinance of March 31, 1879, granted it permission to operate a street railway over certain streets from Fifth avenue and Liberty street to Stone Tavern. When the bridge company in 1892 attempted to interfere with the exercise of this right, the bill was filed to restrain it, and the complainant asked the court to fix and declare what reasonable toll should be, paid in the future. In making the decree prayed for the court but recognized the clearly existing right of the railway company to cross the bridge, which right it not only did not give, but could not have given to the appellant. Under art. XVII, sec. 9 of the constitution that right could have come only from the city, from which it did come, and all that the court did was to impose, at the request of the complainant, the terms for a fixed period upon which its cars should cross the bridge. The words of the decree are, “this rate shall not control for the use of said bridge for a longer period than five years from this date,” and then follows leave to either party to make application during the five years, but not afterwards, for a modification of the decree and for such further order as, “under the circumstances then existing,” might be proper. After the expiration of the five-
After June 1, 1896, the city of Pittsburg having at that time control of the bridge, the appellant failed to make further payments, and, upon appellee’s amendment to its original petition, which, as amended, may be regarded as one asking the court to enforce payment of a balance due it under the decree of 1892, it was decreed that the appellant pay, for the use of the bridge from June 1, 1896, to November 12, 1897, rental at the rate of $8,000 per annum, with interest, amounting to $18,810. In 1898, upon the correct theory that the decree of 1892 was but a substitute for an agreement between the parties as to the rate of toll 'to be charged and paid, an action, which is still pending, was brought by the appellee on the law side of the court to recover the amount due from June 1, 1896, to November 12, 1897. That action is an adequate remedy for the recovery of any sum that may be due for the use of the bridge during the five-year period, and to that remedy, invoked by the appellee, we leave it.
For want of jurisdiction by the court to entertain the petition, the decree upon it is reversed at the appellee’s costs.