210 Pa. 500 | Pa. | 1904
Opinion by
The Glenwood Railroad Company, one of the appellees by resolution of its board of directors duly adopted, resolved that
The learned trial judge finds as a fact that the proposed tracks and improvements were in the judgment of the board of directors of that company necessary to increase the facilities for transportation over its railroad. He also found as a fact that they were so necessary. He further found that “ The Glenwood Railroad Company is a corporation of the state of Pennsylvania, created and organized under the provisions of an act of the general assembly of the said state entitled ‘An act to authorize the formation and regulation of railroad corporations ’ approved April 4, 1868, P. L. 62., and the several supplements thereto, and is possessed of all the franchises and powers conferred by said acts, and particularly by the act entitled ‘ An act to enable railroad, canal and slack water navigation companies to straighten, widen, deepen or otherwise improve their lines of railroad, canals and slack water navigation, and the bridges, aqueducts, piers and structures thereof,’ approved March 17, 1869, P. L. 12.” Thus the incorporation of that company, its organization, its franchises and powers to conduct business and to widen and improve under the act of March 17, 1869, are distinctly established. Owing to the exigency arising from increase in population and a consequent enlargement of business the act of 1869 was intended to remove from railroad companies when the necessity of enlargement or improvement arose, the restriction as to dwelling houses contained in the general railroad act of 1849.
In the case of Dryden v. Railway Co., 208 Pa. 316, Mr. Justice Dean says:
“ In the meantime the business of the railroads had enormously expanded; they wanted more room ; in many cases it was impossible for them to perform the duties enjoined upon them by law and which by their charters they were bound to
Again he says: “ By its express terms this act conferred upon railroad companies an authority Avhicli they did not theretofore have ; it restricted no road, whether its orignal taking Avas sixty feet, or less, to its first appropriation; it could widen and otherwise improve its line whenever in the opinion of its board of directors such widening was necessary. To give the act any other meaning, would, in view of the facts, defeat its main purpose. Any house owner could effectually put a stop to any attempt of the company to provide for the safety of persons and property or to furnish increased facilities for transportation. There is not a word in the act which manifests an intention to limit the power as in the tenth section of the Act of 1849, P. L. 79, nor has it ever been so interpreted by this court.”
The Glenwood Railroad Company had the power to appropriate and condemn the land in question and it cannot successfully be said that the power is stricken down because its exercise operates for the benefit of the company’s lessee or lessees.
In the case of Glaser v. R. R. Co., 208 Pa. 328, the same Justice said:
“The inference that the taking is not for the benefit of the defendant company because its road has been leased to the Baltimore and Ohio, is not warranted by that fact. It has been held in every case, where the question arose, that when the corporate identity of the lessor company Avas maintained, that its statutory powers were continued, although the exercise of them inured partly to the advantage of the lessee company. It may bo safely assumed that no lease of corporate property
The contention of the appellants that as the Glenwood company had leased its railroad and property and owns no cars or motive power that the appropriation of appellants’ land was not necessary to increase its facilities for business and transportation is confronted with the findings of the learned trial judge that the company has, by a proper resolution, determined that it is necessary and in addition that as a matter of fact that it is so. The power of the board of directors to determine the necessity of widening and improving is lodged with it and its action is conclusive, unless fraud or bad faith be shown. As a lessee company operating a road ordinarily furnishes most of the cars and all that is necessary in the conduct of transportation, a lessor company may deem it necessary to widen its road and improve the leased property in order to meet the demands of the increased business passing over it. In fact the failure of a lessor company so to exercise its power in certain contingencies, might in some cases operate as destructive of important rights of a lessee in the operation of the leased property and thus render its lease almost valueless. In the present case the lessor company, finding that the widening and improvement of the property was necessary and was required for the transportation conducted by the lessees (the other appellees), determined by proper corporate action that the appropriation of the properties in question was necessary. Assuredly its power so to appropriate could not be questioned if done for itself and it certainly does not cease to exist because its exercise might operate to the benefit of its lessees, who could properly request that the power be so exercised by the lessor to meet the exigencies growing out of increased transportation.
This is not a case as argued by appellants of a foreign corporation (the Baltimore and Ohio Railroad) using the charter right of a Pennsylvania company and its leased lines to appropriate private property, but one where a lessor company exercises the power which it possesses under its charter and appropriates the property in question. If bad faith be alleged in such exercise of the powers so existing, such question can only be raised by the commonwealth : Windsor Glass Company v. Carnegie Company, 204 Pa. 459.
The assignments of error are not sustained and the decree is affirmed.