Providence & Abington Turnpike & Plank Road Co. v. City of Scranton

175 Pa. 290 | Pa. | 1896

Opinion by

Mr. Justice Green,

The purpose of the contract between the plaintiff and defendant in this case was to relieve the inhabitants of the city from the burden and the annoyance and inconvenience of having a toll gate, and paying toll, over the plaintiff’s turnpike road within the city. The portion of the road lying within the city limits became a part of Market street under the city act of incorporation of 1866, but in consequence of the turnpike having been built long before the incorporation of the city, the road was the private property of the plaintiff which was endowed with the right to erect gates and collect tolls for its use over its whole length. The road, therefore, could not be treated as a street of the city and was not subject to the ordinary municipal control as a street. The right of a turnpike company to erect and maintain toll gates within the city limits where the charter, and the act of 1849, confer a general authority of that character, is fully sustained in the opinion of this court in the case of Conestoga Turnpike v. Lancaster, 151 Pa. 543. The great desirability of getting rid of toll gates within the city limits is fully demonstrated in the opinion in the case of Stormfeltz v. The Manor Turnpike Company, 13 Pa. 555, where Coulter, J., says, “ The constant passage of drays, wagons, carts and other vehicles from one part of a city to another, in pursuit of the business, trade, agriculture and commerce of the country requires that the streets be open. In many places the stoppage to pay tolls would block up and stop the streets, and as the toll gatherer would have to seek shelter from the vicissitudes of the weather, a barrier would at times be interposed with no person at hand to open it.”

Having then before us the fact that the turnpike company might lawfully maintain a toll gate in the city, and, on the other hand, the knowledge that such a gate is a serious injury to the business of the-city and a great annoyance to the citizens, the question arises, is the city powerless, when it proceeds by means of a friendly contract with the turnpike company to remove so great an obstruction to its business and to the convenience of its people ? We do not think so. It is conceded, and is undoubtedly true, that the defendant as one of the cities of the commonwealth could acquire by purchase, or by condemnatory proceedings, the rights and franchises of the plaintiff, and the municipal corporations act of May 23, 1874, P. L. 267, Bright. Purd. 1261, pi. 179, accepted by the city of Scranton in 1877,. does confer the very power essential for the purposes of the present case. The language of section 52 of that act is as follows: “ That whenever it shall become necessary in the progress of the building improvements of any of said cities to grade, curb, bridge, culvert or pave any of the highways used as turnpikes or plank roads, it shall be lawful for councils to agree for the relinquishment of such parts thereof as may be so required from time to time, and if the parties cannot agree, to obtain a jury of view upon such parts to assess the damage the company owning the franchise may sustain by the city using the same for such purposes.” As a matter of course the necessity of using this power is to be determined by the city councils, the grading and paving of the turnpike part of the street clearly embrace the keeping it in repair, and the general powers of councils over the streets and highways within their jurisdiction comprehend all the authority exercised in this instance. Moreover as a mere matter of logical reasoning, if the city may buy or take the whole of the defendant’s road and its franchise, does it not certainly follow that they may by any form of contract which has the consent of the turnpike company acquire the right to use and control a part of the road ? If the company may part with its right over the road by a sale to the city, why may it not part with its right for any other form of consideration?

That is a matter for its own determination. Whether the consideration be much or little, wise or unwise, in the interest of either party, concerns no one but the parties themselves; it cannot affect the validity of the agreement. It might not, in the interest of the company, be advantageous or a matter of pecuniary profit to give up an income of $1,200 a year by surrendering their gate, but that is a matter for their own consideration. If they are satisfied no one else can complain, and surely the courts would not coerce their action in this regard by insisting that they must take some larger emolument merely to give validity to their corporate action in parting with a portion of their road. In point of fact they escape the expense of constant repair which is by no means a trifling matter. On the side of the city the advantage is too obvious to require discussion. The mere relief from the annoyance and burden of having a toll gate on one of their streets is more than ample, when viewed simply as a valuable consideration. And the consequent duty to keep in repair the portion of the road which was a turnpike, but which was also a city street, follows by inevitable inference which did not require the help of a contract engagement. This repair should be done by the city, because, after the contract, the subject of it was no longer a private turnpike, but was exclusively a city street. Hence in no aspect of the case can we regard this transaction as a mere engagement by the city to keep in repair a private turnpike. These considerations eliminate the chief contentions of the learned counsel for the appellant, and also the authorities upon which he relies.

Wilson v. Allegheny City, 79 Pa. 272, has no application because the question there decided, to wit, the right of assessment upon abutting owners, does not arise on this record, and the road continued to be the private turnpike road of the company without any removal of its gates as well after as before the contract between the company and the city. That in the present case there was full consideration moving to the city is already manifest. The other contentions advanced for the appellant are without merit and need not be discussed in detail. We fully agree with the learned judge of the court below in the reasoning and conclusions expressed in his clear and forcible opinion, and might well have affirmed the judgment on that alone. We have thought that some expression of our own might be desirable as the question is perhaps of first impression and of some importance.

Judgment affirmed.