Zook v. Pennsylvania Railroad

206 Pa. 603 | Pa. | 1903

Opinion by

Mr. Justice Bbown,

The real defendants below were G. Sener & Sons. The complaint of the appellee, as set forth in her bill, is, that, under an ordinance passed by the councils of the city of Lancaster, authorizing them to lay a siding railroad track on Harrisburg avenue, in the city of Lancaster, to connect with the main line of the Pennsylvania railroad, they were about, without any authority so given by said ordinance, to change the grade of said Harrisburg avenue as established by law, and to lay the said track or siding in front of her property at an elevation above the grade of the avenue and above the surrounding grade and level of the street or avenue, in such manner as to interfere with her property, to obstruct ingress and egress thereto and therefrom, to prejudice, damage and despoil the same, to imperil the same by great damage from water, and, in many and various ways, to interfere with and incumber her in the use of her properly and in the use of said street or avenue, and her prayer for relief is “ that the said G. Sener & Sons, William Z. Sener and J. Fred Sener, and the Pennsylvania Railroad Company, their officers, agents, operatives and workmen, be enjoined and restrained, now temporarily, and hereafter perpetually, by the order and injunction of this court, from laying said railroad track or siding above the established grade of said street or avenue, and from placing or erecting any ballasting, ties, railroad track, or other obstruction, along, over and upon the said street or avenue, and from digging any ditches, making any embankments, or in any way incumbering the said Harrisburg avenue, and from interfering or intermeddling with the established grade of said street or avenue, in any other manner, than to lay their said track upon the established grade thereof.”

In awarding the injunction restraining the defendants from laying the siding, the learned judge below relied chiefly on the want of power in the city councils to grant permission to construct it. This question is not raised by the pleadings and cannot enter into the decision of the case. The only issues to be passed upon in a suit in equity are those raised by the pleadings : Thompson’s Appeal, 126 Pa. 367 ; Pennsylvania Schuylkill Valley Railroad Co. v. Philadelphia and Reading Railroad Co., 160 Pa. 277; Morios’s Appeal, 4 Pennypacker, 398. What the plaintiff below complained of was not that the defendants were about to lay the siding, but that they were about to lay it at an elevation above the grade of the avenue, in such a manner as to interfere with her property rights; and the prayer is not for an injunction to restrain them from laying it, but from laying it “ in any other manner ” than “ upon the established grade ” of the street. We are to consider only that of which .she complains, and determine whether or not, in the light of it, she is entitled to the specific relief asked for.

One of the conclusions of the court below was, that “ the ordinance granting permission to Gr. Sener & Sons to erect their siding, even if an exercise of powers legally vested in council, must necessarily be authority for a construction only on the grade of the street.” The correctness of this proposition cannot be questioned, and to it the appellants seem to take no exception ; but, to avoid the effect of it, they say that they proposed to lay the siding on the street as they found it. The answer to this, however, is, that the court has properly found as a fact from the testimony that “ it will also be necessary to fill up the street to the level of the siding, and it will cause to be maintained at or about the center of the street an embankment, device and construction of nine and five eighths inches above its grade.”

On the material allegations of the bill, as, to the unlawful constructions of the siding by the. defendants and the injury resulting from such construction of it to the plaintiff, the findings of the court, which we will not disturb, were : “ There is no doubt that the tracks, as thus laid, will be above the grade of the street, and it has been shown by a preponderance of proof —and we, therefore, find it as a fact — that the effect of this will be to render it difficult, if not impossible, for the plaintiff to have access to her property from Harrisburg avenue if this change is made, especially so with large teams, and that the entrance and exit to and from the building and the use of it will be incumbered and hindered. In addition it has also been shown that, since the shedding has been erected upon the Sener property, a larger amount of water collects on Harrisburg avenue, and that this water drains upon her property in larger quantities than it formerly did before any such change was made, and that, if the track is completed as proposed, the Zook property will be, to a more or less extent, damaged by reason of water draining thereon in larger quahtities than before; ” and another finding was : “ The ordinance under which the defendants proceeded to lay this track provides that a track or siding should be laid under the supervision of the street committee of councils. No evidence has, however, been presented before us to show that the work was being so done, or that even the street commissioner or any member of the street committee had any notice that it was about to be done, or was consulted about the manner in which it was being done, and no authority from the city to make the fill and change the grade has been presented by any one, nor had any provision been made to perform or pay for such work.”

These findings were fairly found from the testimony, and, in view of them, the specific relief prayed for by the plaintiff “protection from what would be a continuing injury to her property and interference with her full and free use of it ” could not have been withheld by the court below. So much of the decree as perpetually enjoins G. Sener & Sons, William Z. Sener and J. Fred. Sener, and the Pennsylvania Railroad Company, their officers, agents, operators and workmen, from laying a siding above the established grade of Harrisburg avenue, in the city of Lancaster, and from placing or erecting any ballast, ties or other obstructions over and upon the said avenue above the established grade thereof in front of plaintiff’s property, and from interfering or intermeddling with the established grade of the said street at said point, is affirmed, the costs below, as well as on this appeal, to be paid by G. Sener & Sons, W. Z. Sener and J. Fred Sener.