34 Pa. Super. 374 | Pa. | 1907
Opinion by
Tbe nature of the proceedings and the issue out of which this appeal arises and the facts pertinent to the issue have been fully and clearly set forth by the learned judge below, and we shall not attempt to restate them. The appellant’s proposition, that it had a right to maintain its pipe, on Ells-worth avenue in the location in which it was laid, which right could not be abridged nor interfered with by the city, without making or securing due compensation, “ except through its sovereign or police powers,” is indisputable under the evidence. To be more explicit, the statutes under which it acquired the right do not expressly provide that it shall be held subject to ordinances thereafter to be passed relative to the location, relocation or relaying of such pipe; nor was the pipe laid under consent granted by the city upon such condition. It is claimed that the right of the city to lay a water main in the same street, while equally clear and incontestable, was not superior, abstractly considered. This, it is argued, is a logical deduction from the general principles enunciated in Westen Saving Fund Society v. Phila., 31 Pa. 175; Baily v. Philadelphia, 184 Pa. 594; White v. Meadville, 177 Pa. 643, at p. 652, and for present purposes it may be conceded. It results from the foregoing that the city could not compel the gas company to remove its pipe from the location where it was lawfully laid, except in the exercise of the right of eminent domain and upon making and securing due compensation, unless it could vouch some other basis for its demand than its mere will to use the same location for its water main. But although in the statutes under which the gas company acquired its right there is no express reservation to the state or the city of the power to require the company to change the location of its pipe, it does not necessarily follow that no such power can be exercised by either under any circumstances. “The right of a private corporation to break up” — and we add, to occupy or use — “the public highways of a municipality in the exercise of a franchise conferred upon them by an act of assembly, is necessarily subject to the reasonable municipal regulations of the district enacted for the common good of all its inhabitants unless specially excluded by the act conferring the right: ” Commissioners, etc., of The Northern Liberties v. The Northern Liberties
We think it equally clear that the occasion justified the exercise of this power, and that the ordinance of 1872 is broad enough in terms to cover the case. The pipe of the gas company could be moved to another part of the street without other loss or damage to the company, so far as the evidence shows, than the cost of removal, which was small. On the other hand, the trial court has found that for a certain distance on Ellsworth avenue it was necessary to lay the water main in the location occupied by the gas pipe. The evidence shows that this location for the water main was not selected arbitrarily, but for practical reasons which amply justified the selection and the finding of the court that it was necessary. The ultimate purpose for which the city determined to use this portion of the sub-surface of the street wras not to increase its revenues from the business of supplying water to the inhabitants of the city, but to promote the public health.- It was part of a plan which was as directly and obviously calculated to promote that object as the construction of a system of sewerage or drainage. It is a mistake to suppose that its action now under consideration is referable only to its power to supply water to the inhabitants of the city and for public uses. It has that power, and it is exclusive, but it also has the power to make regulations to secure the general health of the inhabitants ; and its action is sustainable as a reasonable exercise of that power
The action of the city, to which the defendant objects, being referable to and sustainable by its police power, the constitutional provision relative to compensation for property taken, injured or destroyed in the exercise of the power of eminent domain, has no application. The defendant cannot claim damages or compensation on account of being compelled to render obedience to a police regulation designed to secure the public health and welfare : Scranton Gas & Water Co. v. Scranton, 214 Pa. 586; New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453; Chicago, Burlington & Q. Ry. Co. v. Chicago, 166 U. S. 226, at p. 255. Other cases are cited in the appellee’s brief in support of this proposition.
The decree is affirmed and the appellant to pay the co^ts.