186 Pa. 459 | Pa. | 1898
Opinion by
The Delaware County Passenger Railway Company was incorporated under the special act of March 25, 1859, which authorized it to build and operate a passenger railway connecting with the West Philadelphia Passenger Railway on Market street, at or near the western terminus thereof on Market street, thence westwardly along said street to the West Chester Plank Road, thence along said road as the public convenience might require. It was authorized to use dummy steam engines for moving its cars. The railway was built and operated until the year 1865, when it was sold at a judicial sale, and purchased by the West Chester Turnpike Road Company, this appellant, under authority of a special act of assembly of March 15,1865. It was operated by the purchaser for a short time, less than a year, when it took up the rails and restored the surface, so as to permit safe travel by vehicle. On April .5, 1870, the legislature, by special act, authorized the city to open, grade and pave Market street from Forty-third street west to the county line, as soon as the turnpike company “ have given up and released free of charge to the city of Philadelphia all the interest of said company in that portion of their road occupying the bed of Market street within the limits of said city.” Accordingly, on August 29,1872, the turnpike company executed a release to the city, which states as follows: “Now therefore .... in order to enable the said city to have direct and absolute control of and to grade and pave Market street, as contemplated by said act of assembly of April 5th, 1870, the said Philadelphia and West Chester Turnpike Road Company have remised, released
Appellant’s principal contention is, That the court below erred
The turnpike company purchased the property and franchises of the Delaware County Passenger Railroad Company, by authority of the act of April 15, 1865, which empowered the purchaser to remove the track and superstructure. Immediately after purchase in 1865, the turnpike company took up and removed the railway tracks and superstructure. The intention of the company is best ascertained from the 'testimony of those representing it at that time, and from its records. William Rhoads, at that time a director of the turnpike company, and afterwards its president, says, in his testimony, in answer to a question as to how the stock of the railroad company got out of possession of the turnpike company: “ I cannot tell you how, excepting, when the railroad that was purchased by the .... turnpike company, and for a short time, not a great while, was run by them — then it was abandoned and, as a matter of course, tbe stock was sunk, I suppose.” Then, notice the minute of the report of the directors of the turnpike company to its stockholders, January 1,1866 : “ The Delaware County Railroad having become a failure, and its dilapidated condition annoying and injurious to our road, we deemed it best to purchase it, which we have done at a cost of $4,100, and the iron of the railroad we have removed and sold, for which we received $5,118.75. The tracks of the railroad have been temporarily improved for wagon travel, which added to our expenses, although had we not purchased the road, wo should have - been obliged to do something for its improvement in our defense.”
From these significant facts and declarations of tbe company it is clear that tbe riglit to exercise the franchise of the railroad company on Market street was discontinued, because at that time the railroad was profitless. With this estimate of its worthlessness continuing down to 1870, the company, then, by the special act, was by plain implication given authority to release all its interest in that portion of its road occupying the bed of Market street within the city limits. At this point, we do not choose to discuss the question as to the power of the turnpike company to wholly and forever, without
But there is another point raised which is conclusive against defendant’s right on Market street. The act of 1865 conferred on it authority to purchase the railroad property and franchises: “ Provided that the said Turnpike Road Company may remove the track and superstructure of said railroad, and dispose of the materials thereof, and of the other property so purchased ; upon condition, however, that they shall within three months after the removal of any part of said track and superstructure restore that part of their road to as good order and condition for public travel as the same was in before said railroad track was laid.”
In the most favorable construction to defendant this act gave the turnpike company the optional right to continue operating the railroad, or to temporarily suspend and again resume operations, or to permanently discontinue operating it. Which option did it exercise ? It must be kept in mind that at that date the greater part of what is now Market street from the then western terminus of the West Philadelphia Passenger Railway was in character a country road; within a few months, the purchaser took up the rails and sold the equipment. Why? In their official report to their stockholders, heretofore quoted, the directors say, because it has “ become a failure, and its dilapidated condition annoying and injurious to our road.” There is no
Assume from the language of the act of 1865, a temporary cessation of the occupancy of the street for railroad purposes was authorized, it, with as much clearness, authorized a permanent discontinuance of that enterprise. But its conduct, instead of indicating a temporary suspension, every act and omission to act, after the purchase, were significant of an intention to permanently discontinue the use of the street under the railroad franchise. It put an interpretation on the act entirely justified by its words, and forever gave up its right. It is not necessary to consider whether, if nothing had been done by others, in face of this plain attitude of defendant, it could have resumed its railroad occupancy Of the street, and we do not decide that point; but we do decide that both the plaintiffs and the city had a right to assume that defendant had forever relinquished its right at the time they expended their money; and defendant, having misled both, is now estopped from asserting a right.
One other point demands notice. In the case of Hinchman v. Philadelphia & West Chester Turnpike Road Co., 160 Pa. 150, a question, apparently involving in some degree the same contention, was before this Court. The suit was begun in the common pleas of Delaware county. Hinchman, as a stockholder of the turnpike company, filed his bill averring the purchase by . his company of the franchises of the railroad company in 1865; that it had operated the railroad until November, of that year when it sold all the equipment; that from that time up to March, 1893, the road had not been operated, but that now, the
The assignments of error are overruled, and the decree of the court below is affirmed at costs of appellant.