City of Philadelphia v. Eastwick

The opinion of the court was delivered by Read, J. Under the provisions of their charter, The Philadelphia, Wilmington, and Baltimore Railroad Company, in the year 1838, located their railroad on the south side of the Gray’s Ferry road, in the township of Passyunk, afterwards the district of Moyamensing, through a piece of land belonging to Deborah Bingham and others; who, on the 26th June in the same year, by deed, conveyed to the said company, the full right and privilege to construct and for ever maintain and use their said railroad through the said land, so long as required for such railroad. They also released the said company from all damages and compensation to which they were entitled, for the sum of $2000; and, in consideration of the advantages to them of said railroad, and of the payment of the said sum of money, agreed to erect and for ever repair, support, and maintain, without further charge to the said company, a good and substantial four-railed fence or other lawful fence, on each side of the said railroad as far as their lands bounded on the same. By the 6th section of an Act passed 26th March 1852, P. [78] Laws 252, the board of commissioners of the district of Moyamensing were to proceed without delay to regulate, pave, and curb the'Gray’s Ferry road in said district, from the junction of Federal street and the Gray’s Ferry road, to the abutment of the Gray’s Ferry bridge, and to charge the expense of curbing and paving to the owners of property fronting thereon, in proportion to the actual front owned by each — they were empowered to file liens, and to have the legal rights and remedies for recovery thereof, as they then had for the recovery of claims for curbing and paving — “ the expense of regulating and grading of the sidewalks and the main, street to be borne by the district of Moyamensing.” The paving was done in 1854, under a contract made by the commissioners after the passage of the Consolidation Act, but just previous to the merger of their powers in the new corporation of the city of Philadelphia. The city of Philadelphia, in 1855, filed two liens for this paving, one against the railroad company, as owner or reputed owner, against the strip of ground occupied by the railroad, being 2046 feet in front on the Gray’s Ferry road, and 47 feet in depth or thereabouts; the other being the present one, against the present defendant below, owner or reputed owner of a lot 241 feet on the said road, by 287 feet deep. The first lien includes the 241 feet lot for the depth of 47 feet from the Gray’s Ferry road, and the second lien describes the lot as if no railroad were located over it. It was decided by this court in the case of The City of Philadelphia v. The Philadelphia, Wilmington, and Baltimore Railroad Company, 9 Casey 41, that the lien against the company could not be supported. “ It would be strange legislation,” says the Chief Justice, “ that would authorize the soil of one public road to be taxed in order to raise funds to make or improve a neighbouring one.” By the 15th section of the Act of the 2d April 1831, P. Laws 359, it is enacted that the railroad shall be esteemed a public highway for the conveyance of passengers and transportation of merchandise and commodities; and Holroyd, J., in 2 B. & Ald. 648, says, “ A railway is a public highway to be used in a particular mode.” In England, and in some of our cities, and also along the lines of some of our railroads in the interior, fences are placed on both sides of the railway for the security not only of those using the road, but of the public, and this contingency is provided for in the r-deed granting the right of way to the company. It is clear, that ) the only access to the Gray’s Ferry road, from Mr. Eastwick’s 1 lot, is across the railroad, which may be fenced up at any moment. ( We are unable, indeed, to see how it can be said that this lot fronts on the Gray’s Ferry road, when its real front is on another public highway, the railroad 47 feet south of it. [79] Upon this simple ground, and without entering into the question how far our former decision should affect the present proceeding, we are of opinion that there is no lien on the lot of the defendant for the expenses of paving any part of the Gray’s Ferry road. Judgment affirmed.