147 Pa. 579 | Pa. | 1892
Opinion by
We dismiss the first and second assignments of error, because we think that the cause of complaint is one that is common to all the plaintiffs, the right under which all claim is precisely the same as to each, the complaint of all is against the same defendant for the doing of acts which affected all alike and in the same manner, the defence set up is common to all the plaintiffs, and the testimony, proofs and decree are alike as to all the plaintiffs. It is not necessary to cite authorities to show that when all these matters concur a bill filed l?y several such plaintiffs against a common defendant is not multifarious.
On the merits of the ease it is not contested that all the powers which the passenger railway company possessed were conferred upon the Traction Co. by the agreement between the two companies made December 27, 1888. It must also be conceded that the Traction Co. had full power, under the act of 1887, “ to lease the property and franchises of passenger railway companies which they may desire to operate, and to operate said railways,” and also “ to enter upon any street upon which a passenger railway now 'is, or may hereafter be constructed, with the consent of said passenger railway company, and make, construct, maintain and operate thereon such motors, cables, electrical or other appliances, and the necessary and convenient apparatus and mechanical fixtures, as will provide for the traction of the cars of such passenger railway, and to enter into contracts with passenger railway companies to construct and operate motors, cables or other appliances necessary for the traction of their cars.” Under the ample powers and rights conferred by the act of 1887 it cannot be doubted that the defendant company had full power and authority to enter into the contract in question with the Central Passenger Railway Co. The authority of the Traction Co., however, to do the acts complained of in this case is denied upon two grounds. One is that the power of the Traction Co. is limited
At a meeting of the directors of the railway company, held December 24, 1888, a resolution was passed, adopting certain branches to the main line, among which was one through High street in both directions. By an ordinance of the city councils, passed February 6, 1889, authority was given to the railway company to enter upon the several streets named, including High street, and to construct, maintain and operate its passenger railways thereon. By another ordinance of the same date the Central Traction Company was authorized to enter, with the consent of the Central Passenger Railway Company, upon any street upon which their railway now is, or may hereafter be, constructed, for the purpose of constructing, maintaining and operating in and upon any or all of said streets and avenues, such motors, cables, electrical or other appliances, and such necessary and convenient apparatus and mechanical fixtures as will provide for the traction of cars. We know of no reason to question the legal efiicacy of any of these proceedings. The adoption of a branch through High street was made by the board of directors of the railway company at a meeting regularly held. The ordinances of the city councils were duly enacted by the proper authorities. Everything done was in strict conformity with all legal requirements, and, in our opinion, sufficed to clothe with authority of law all the acts of the several parties done in conformity with those requirements.
On'December 27, 1888, a formal contract was entered into between the two companies, by which the railway company agreed that the Traction Company might enter upon any and all. highways on which the tracks of the railway Company
This being so, the public is a gainer by the transactions of the two companies, and their interests ought not to be sacrificed, except for plain and sufficient reasons.
The learned master was of opinion that because the railway company had not in point of fact laid a track or tracks upon High street, before the tracks were laid there by the Traction Co., the power to lay them did not exist under the agreement and ordinances, because the act of 1887, under which the defendant company was organized, only gave authority to lay tracks upon any street upon which “ a passenger railway now is or may hereafter be constructed.” The result of the reasoning of the master would simply be that if the railway company had first laid tracks on High street, the Traction Co. could lawfully make the contract in question, and enter upon the street, tear up the tracks previously laid by the railway company* and thereupon proceed to lay the cable tracks. It can hardly be that the question of statutory authority can be made to depend upon such a consideration as that. If it did, it
The act of 1887 does not require any such strained and unreasonable construction. It is only necessary to read the word “ may ” before the word “ hereafter,” in the first section, in its ordinary sense, to understand the propriety of this reading. The master and the learned court below read the word “may” as if it were the word “shall,” and inferred that the word was imperative, and implied that the railway track must have been actually laid in advance of the right to contract for a cable track; whereas, the word “ may ” does not necessarily import anything more than that a railway track may be laid; that is that there is a right to lay it. There is no doubt that the railway company had the right to lay a track on High street, at the time of the contract, and was not restricted as to the kind of track it should lay. Its power did not depend upon the act of 1887, and it is not possible to understand why the Traction Co., with a power to contract for the' laying of a cable track, where a horse-car track was already laid, could not contract to lay a cable track where a horse-car track may be laid. Its right to do so comes within the letter of the act, and it is very plain that the act intended by the words, “ or
The learned court below went further than the master, and held that the railway company had no power to make such a contract as it did, because the contract was a virtual surrender of all the property and franchises of the company to another corporation, which could only be done under express statutory
In the present case those considerations are not applicable, and we are entirely clear, upon the reasoning in all three of the cases, that the act of 1870 does include passenger railroad companies as well as steam railroad companies. The language is very general, and embraces all railroads without distinction. The court below was of opinion that, because it included railroads in other states, it could not have been intended to include passenger railroads in this state. We do not see the force of that inference. The power to contract for railroads in other states is especially given, because it would be necessary to give it by express mention, they being extraterritorial. But surely,
Another objection is made to the application of the act of 1870, because no continuous connection is made between the road of the passenger company, and any road of the Traction Co., and under the proviso of the act such connection is necessary before the act can operate. This raises a question not of construction of the act, but whether companies seeking to make use of it have brought themselves within its terms.
As the Traction Co. has no road of its own, there is much plausibility in this contention, but yet the question still remains whether the plaintiffs are in a position to sustain their bill on this ground. If they have no interest arising from a remediable injury, it is difficult to understand how they can invoke the aid of the law to correct an excessive exercise of power by making the lease or contract in question. If they have done that they are responsible to the commonwealth, but not to a private citizen, who has sustained no special injury for which he is entitled to redress. It has been many times held, and by many different courts, that the use of a public street for purposes of street railroads is hot the imposition of an additional servitude, and does not entitle the abutting landowners along the street to compensation for such use. In the case of Lock-hart v. The Craig Street Ry. Co., 139 Pa. 419, we affirmed the lower court in the following ruling: “ It cannot be doubted at this day that the legislature of Pennsylvania has the power to authorize the incorporation of companies, with power to build and operate railways with horses over the streets of cities, with the authority and consent of the authorities of said cities, as provided by § 9, article xvn of the constitution. And it is too late to say that such use and occupation of the streets impose such an additional burden, or servitude thereon, as renders it necessary to provide for compensation therefor to the owners
In Halsey v. Railway Co., 20 Atlantic Rep. 859, (court of chancery, New Jersey, 1890,) it was held that land taken for a street is taken for all time, and compensation is made once for all, and by the taking the public acquire the right to use it for travel, not onty by such means as were in use when the land was acquired, but by such other means as new wants and the improvements of the age may render necessary; and that the question, whether a new method of using the street for public travel results in the imposition of an additional burden on the land or not, must be determined by the use which the new method makes of the street, and not by the motive power which it employs in such use, It was also held that the erection of poles in the centre of the street and on the sidewalk in front of the plaintiff’s property, with connecting wires, for the purpose of applying electricity as a motive power to propel street ears, was not imposing an additional servitude upon the street, and that the owner had no cause of action.
In Williams v. Ry. Co., 41 Fed. Rep. 556, the court said: “ The operation of a street railroad by mechanical powei', when authorized by law, on a public street, is not an additional servitude or burden on land already dedicated or condemned to the use of a public street, and is, therefore, not a taking of private property, but is a modern and improved use of the street as a public highway, and affords to the abutting property holder, though he may own the fee of the street, no legal ground of complaint.”
All of this is strictly applicable to the facts of the present case. High street was a public street of the city before the defendant’s tracks were laid, and it is so still. Whether the motive power of the cars be horses, electricity or a submerged cable, makes no difference in the use, and no one of these modes of use confers any right of action upon the abutting owner.
In Taggart v. Newport Street Ry. Co., 7 Ry. & Corp. L. J. 385, it was also held that a street railway operated by electricity imposed no new servitude upon the property owner, although poles and wires were erected in the street in connection with the railway. Laying a street-ear track so close to the sidewalk that vehicles cannot stand, gives no ground for action: Kellinger v. Railway Co., 50 N. Y. 206.
It. is claimed for the plaintiffs that their right of free access to their property along High street is interfered with, because vehicles cannot stand between the railway tracks and the curbing without interfering with the cars. But the right of the property owner in this respect is not at all changed. He has the same right, after the tracks are laid and the cars running, that he had before. It is a right which must be exercised in reason, whether there are car tracks on the street or not. In no circumstances does it confer the privilege of obstruction by unreasonable exercise. But the reasonable exercise of the
We do not at all agree with the learned court below, that the occupation of the street by the tracks and motors of the defendant has diminished the value of the plaintiffs’ properties from one third to one half. The testimony to that effect was chiefly the interested testimony of'the plaintiffs themselves,
Upon the whole case, and a review of all the testimony, we are of opinion that the Traction Co. had ample authority, under the act of 1887, to make the contract with the Passenger Railway Co., and that whether the latter company exceeded its lawful authority by becoming a party to the contract is a question of the excessive exercise of power by a corporation, for which it is amenable to the commonwealth, but not to a private suitor, unless he has sustained a private injury, for which he has legal redress. We hold that these plaintiffs have not sustained such injury, and, therefore, have no standing to maintain their bill. We think, however, that in view of all the circumstances, the cosfs should not be imposed upon the plaintiffs, but should be borne by the defendant.
The decree of the court below is reversed, and the bill of the plaintiffs and all proceedings thereunder are dismissed and set aside, but all the costs of the case shall be paid by the defendant.