259 Pa. 333 | Pa. | 1918
Opinion bx
This was a bill in equity filed by the Pittsburgh Railways Company, the Consolidated Traction Company, and the Suburban Rapid Transit Street Railway Com-, pany, against the borough of Carrick and five individuals, members of the council of that borough, for the purpose of preventing the defendants from interfering with the operations of the railways company in laying-switches' connecting its tracks in the highway with its car barn. A preliminary injunction was granted, which, upon final hearing in the court below, was dissolved, and the bill dismissed. Plaintiffs have appealed.
The facts, practically undisputed, appear in the findings of the trial judge, substantially as follows: The Suburban Rapid Transit Street Railway Company was incorporated on September 28, 1886, and by various mergers and leases' has become part of the system of the,
In 1905 the borough of Carrick Avidened the BroAvnsville road to a width of sixty feet by adding five feet to each side, and, as part of this improvement and the paving of the street, the plaintiff paid for the paving of the tracks and three and a half feet on each side, at a cost of some thirty thousand dollars or more. When the borough was incorporated the railways company had a car barn in the borough, which was connected by SAvitches with its tracks on the street.
Until a short time ago, the plaintiff company has been running single truck cars upon the road in question, and these have been stored in its car barn. The management lately reached the conclusion that it would be wise to use larger cars, with double trucks, and, therefore, purchased a number of such cars, they being more economical and
It clearly appears from the record that, in 1890, the supervisors of Baldwin Township gave to the street railway company their written consent to construct or lay down on the road “a single or double track railway with the necessary sidings, turnouts and switches, and to maintain, operate and use such railway,” during the term of the company’s charter, and it further appears that, acting under the consent so given, the street railway company constructed its line of railway and operated it on the highway then in the township of Baldwin, for some fourteen years prior to the incorporation of the borough; and that its right to so build and operate was not questioned by the authorities of the borough for some twelve years thereafter, making in all a period of some
In the present case, when the street railway was projected the highway in question was in the possession, and under the control, of a turnpike company, and, according to the testimony of the attorney for the township supervisors, it was an open question rvhetker, under the circumstances, the consent of the supervisors was necessary. But it was considered wiser to obtain their consent, if possible, and accordingly the supervisors met, and discussed the question, and signed a paper giving their consent to the construction of the railway upon the turnpike. They also acknowledged this paper in due form before a notary public. There was no township clerk, and no minute of the transaction was entered upon any township record. It is this feature which affords the only ground for objection to the validity of the grant of authority by the supervisors. The manner in which the consent of so elementary an organization as a township is given, where it is requisite, is not so important as that the fact of its being given should clearly appear. In such cases action should be taken by means of a formal resolution, duly recorded in the minutes of the
In the case at bar, the court below passed over the question of the validity of the grant of authority by the supervisors, upon the ground that the subsequent action of the borough .of Carrick in agreeing Avith the street railAvay company as to the share it would assume in paving the street, Avas ample evidence of the consent of the local authorities to the maintenance of the street railAvay as it then was. The trial judge was, however, of the opinion that the plaintiff company was not authorized to lay tracks outside of the cartway in the street, and that it had no implied right to1 do so. We cannot agree with
It- is suggested that as these rulings were made in steam railroad cases, they are not applicable to street railways. But, in so far as the principle under discussion is concerned, there is room for no such distinction in its application. In Boro. of Pottsville v. People’s Ry. Company, 148 Pa. 175, the principle was directly applied to a street railway.
In dissolving the injunction in the present case, the trial judge cited and relied upon the decision In Breen v. Railway Co., 220 Pa. 612. But the question there decided was essentially different. The railway company there proposed to lay a track on the sidewalk, between the curb line and the property line of complainants, the adjoining property Owners; and it was held that this
The fact that, after the borough was incorporated, it widened the Brownsville road by adding five feet upon each side, has no bearing whatever upon the question under consideration. When the additional ground became part of the highway it was subject to the same uses and purposes as the ground which had been previously occupied as a highway. It added to the desirability of the street, and to the convenience of the public, which made use of it, and the plaintiff company recognized this fact by agreeing to increase the proportionate amount of paving which .it should do. But its rights upon the highway, under its original grant of authority, were not limited to the width of the road as it then stood. It was entitled to share with the rest of the public in the advantages of a widened street. The borough authorities may without doubt exercise reasonable control over the manner in which switches are laid or sidings constructed. The original grant of authority provided that the work of construction, with reference to leaving the highway in good repair, should be done under the direction of the supervisors, who at that time constituted the local authorities in that respect. As was said in the opinion granting the preliminary injunction, the tracks should be laid so as to cause the least possible inconvenience to travel. And, if there be any irreconcilable controversy upon this subject, a court of equity will have jurisdiction to determine what is a reasonable occupancy of the street under the circumstances.
It is not necessary to consider the sufficiency of the
Of the assignments of error, the third to the fifth inclusive, the seventh to the twelfth inclusive, the fifteenth and sixteenth, and the twenty-first to the thirty-third inclusive, are sustained. The decree of the court below is reversed, and the bill is reinstated, and the record is remitted, with directions that an injunction be issued, restraining the borough of Carrick and the other defendants, and their agents and. employees, from interfering with, preventing or obstructing the plaintiffs, in the construction, maintenance and operation of the necessary street railway switches or turnouts, connecting their double tracks on Brownsville road with their property at the southeast corner of Woodlawn avenue and Brownsville road in the borough of Carrick. The costs of this appeal, and in the court below, to be borne by the •appellees. •