203 Pa. 176 | Pa. | 1902
Opinion by
The plaintiff has a constitutional right with its road to cross the railroad of the defendant company, subject, however, in the exercise of the right to the control of a court of equity under the provisions of the act of June 19, 1871, Purd. Dig. 780. The 2d section of the act declares that “when such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this commonwealth to ascertain and define, by their. decree, the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed; and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their processes prevent a crossing at grade.” This court has frequently interpreted this section of the act of 1871, and in doing so has clearly defined the rights of the two contesting railroads. In Pittsburg & Connellsville Railroad
We do not think it necessary to take up and consider separately the thirty-nine assignments of error filed in this case. It would unduly and unnecessarily extend this opinion. I.t is to be regretted that the learned trial judge did not, in addition to answering the points, find and state briefly and clearly the facts of the case. Such is much the better practice and the one that should be adopted in cases of this character.
The appellant objects to the decree entered by the court below, and alleges that it does not provide a proper mode of crossing its right of way, one that will inflict the least practicable injury upon the rights of the appellant company; and that a temporary grade. crossing for construction purposes
We are convinced by the evidence in the case that the appellant will need sufficient space for two tracks and one siding, and we agree with its counsel that a proper mode of crossing its road will be by a three-span structure with a vertical clearance of twenty-one feet supported by iron posts on piers resting upon the right of way, as shown by exhibit “ N,” and fully and particularly described in the testimony of A. G. McComb, the civil engineer. Such an overhead crossing may not do the least practicable injury to the appellant, but manifestly it gives to the appellee all the rights and privileges on and over the appellant’s right of way to which it is entitled. It involves the expenditure of more money than the mode of crossing directed by the court below, but the excess is not burdensome nor sufficient to justify complaint on the part of the appellee.
Under the testimony and the finding of facts by the learned trial judge, we cannot say that he erred in granting the ap
It is now ordered, adjudged and decreed that the court of common pleas of McKean county, sitting in equity, modify the decree heretofore entered by it in this case on August 9, 1901, so as to conform to the views expressed in the foregoing opinion, and the decree as thus modified is affirmed. It is further ordered that the appellee pay the costs of this appeal.