City of Philadelphia v. Philadelphia, Wilmington & Baltimore Railroad

The opinion of the court was delivered by Lowrie, J. The municipal authorities paved the Gray’s Ferry road for a considerable distance, at a place where it lies side by side with the defendants’ railroad, and now seek to charge them with the half of the cost of it; but they cannot do it. Their claim has no foundation either in the letter of the law or in its spirit, nor in the form of the remedy. Not in the letter, because the defendants do not own the land sought to be charged, and have only their right of way over it. Not in the spirit, because the paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving, while all the rest of the neighbourhood may, we cannot presume that the compulsion was intended to be applied to them. Not in the form of the remedy, because the execution for this sort of claim is levari facias, a writ not commonly allowed against corporations, and which would hardly produce much when directed against a public right of way. It would be strange legislation that would authorize the soil of one public road to be taxed, in order to raise funds to make or improve a neighbouring one. Judgment affirmed.