161 Pa. 396 | Pa. | 1894
Opinion by
The system of railroad legislation in force in this state is a growth. It has expanded with the development of our resources, and the demand for improved facilities for trade and travel. This will be evident from a cursory glance at the system. In the early history of railroads and other business enterprises each corporation was created, and its powers and duties defined, by a special law passed for that particular purpose. As corporations increased in number and were directed towards production as well as transportation, it became evident that the public welfare required that all corporations of the same class should possess the same powers and privileges, and be subject
Our street railroad legislation has a similar history. At first each company was organized by a special law passed for the purpose. Then came our general system for the organization of street railroad companies as a class. The purpose of their organization was to provide a cheap and convenient mode for the carriage of passengers in the centers of population and business. Their tracks are located upon the surface of the streets and highways. They are required to conform to' the grade of such streets as fixed by the municipal authorities. Their cars were originally drawn by horses in the same manner as the stage and omnibus which they superseded. The street car was simply an improved and enlarged carriage, moving over an existing highway to facilitate the travel upon it. It was accordingly held by this court that the construction of a street railroad track upon a city street, and the use of it for the movement of street cars, imposed no new or additional servitude on the lands
This, with the exceptions of a few provisions for “ Inclined Plane Railways,” completes the system of street passenger railroad legislation as it exists on our statute books. No such demand has yet arisen for a system of elevated passenger roads in our cities as has induced the legislature to enter upon the work of providing for them. We have no express provisions for the location, construction or operation of an elevated street passenger railroad; and we have no machinery adapted to the ascertainment of the damages that the construction of such a railroad might inflict upon lot owners along the streets occupied by it. The defendant company practically concedes all this, and does not deny that as a street passenger railroad company it could not occupy a street already occupied by a surface street railroad company. It asserts however that, as a steam railroad company incorporated under the general railroad laws of 1868, it may elevate its track under the act of 1887, and use its elevated line not for general railroad purposes, but simply and exclusively as a street passenger railroad. This makes it necessary to consider the acts referred to and see just what they authorize.
The act of 1868 is part of our system of general railroad legislation. The first section confers on companies organized under its provisions the power' “ of constructing, maintaining and
The defendant company is then a steam railroad company incorporated as such under our general railroad laws. It must proceed under those laws to acquire a location for its line, and to ascertain, and secure the payment of, the damages which the location and construction of its road will inflict on those over whose lands it is laid. When it has acquired title to its location, whether by purchase or by the exercise of its right of entry under eminent domain, it may build and operate its road as a common carrier of persons and freight, in the same manner as any other railroad may do which is organized under the laws of this state. But it cannot enter upon lands or streets already appropriated to another railroad, except by virtue of
We come next to consider the act of 1887. This also is a part of our system of general railroad laws. It is a supplement to the act of 1868, already considered, and ajoplies only to steam railroads within the meaning of those Words as fixed by the general railroad laws. What was the mischief to be remedied by this supplementary legislation ? It was the existence of grade crossings of city streets by the lines of railroad coming into or passing through the cities of the commonwealth. What was the obvious remedy for this mischief? To elevate or depress the lines, or parts of the lines of such railroads, so that the trains should cross the streets above or below the street grade. The act of 1887 provides this remedy and authorizes railroad companies whose route extends into or through any city in the commonwealth to elevate or depress the line of their road over or under the surface of the streets. The.words are “ may elevate or depress the whole or any part of so much of the line of their railroad as lies within the corporate limits of such city.” This was not intended, and cannot be construed, as authorizing the building of an elevated railroad such as is contemplated by the defendant company; but the elevation or depression of so much of an existing or an authorized line of railroad as may be deemed necessary to avoid grade crossings. A part may be elevated and a part may be depressed; the object being, as stated in the act, to carry the line of a railroad with its passing trains “ over or under the surface of the streets
It will thus be seen that the act of 1887 does not provide for any new class of corporations or of railroad lines, but for the change of grade of the lines of steam railroads in cities, in the interest of public safety and convenience, in the moving of trains into and out of such cities. If the defendant company had a line located in accordance with our general railroad laws, it might elevate or depress a portion of it, under the act of 1887, but it must first have a line before it can elevate it. The act contemplates a line of railroad actually located on the surface over which the company moves or may move its trains across streets at grade, and provides for the elevation or depression of parts of such a line so as to take the trains “ over or under the surface of the streets ” so crossed. It follows therefore that as the defendant company is incorporated as a steam railroad company under the act of 1868, it must locate its right of way and acquire a title to it before the provisions of the act of 1887 can be invoked in aid of the elevation or depression of any pai’t of its line. The permission of the city cannot relieve against this necessity nor can the contract between the defendant and the city seiwe any valuable purpose. The contract was entered into under a mutual mistake as to the character of the defendant and its corporate powers. It was ultra vires on both sides. The defendant assumed to be, and contracted to conduct business as, a street passenger railroad company. The city assumed that it was what it claimed to be, and was authorized to do the business it offered and undertook to do. Each contracted therefore to do what it had not the legal right to perform, and as a consequence neither acquired any rights under the contract capable of enforcement at law.
The view we have taken of this case renders an examination of the other questions raised wholly unnecessary. They are interesting and important, but their decision will be more appropriately made when we re^ch a case that depends upon them. This case does not.
First. We have no statute in this state that authorizes the incorporation of elevated street passenger railroads, and no machinery for use in acquiring a right of way for an elevated railroad overhanging the streets, and surface street railroads upon them.
Second. The appellant is not a street passenger railroad company and cannot acquire the rights and franchises of such company without incorporation under our street railroad laws.
Third. The appellant is a steam railroad company incorporated under the general railroad laws of the state; and as a common carrier of persons and property is possessed of the powers and is subject to the duties imposed on steam railroads by the laws of the state.
Fourth. Among its powers is that of locating, and acquiring title to, a location or route for its railroad in accordance with the provisions of the general railroad laws relating to that subject.
Fifth. It has not exercised this power, and as a consequence it has no route or right of way on which it can lawfully build .a line of railroad.
Sixth. As it has no right of way on the surface on which it can build a line of railroad, it has no line to elevate or depress under the provisions of the act of 1887, and can take nothing whatever under that act.
Seventh. The contract between the appellant and the city •of Philadelphia cannot change the corporate character or powers of the appellant company, nor can the permission of the city give to it the right to build and operate an elevated street passenger railroad overhanging the streets and the surface street railroad lines, in the absence of any legislation whatever authorizing or providing for such elevated structure, and the ascertainment of the damages to be done to lot owners thereby.
Eighth. The erection by the appellant of the structure complained of is therefore unauthorized. It was for this reason .rightly enjoined by the court below, and the decree appealed .from is now affirmed at the costs of the appellant.