Heyl v. Philadelphia, Wilmington & Baltimore Railroad

The opinion of the court was delivered, by Agnew, J. The license set forth and claimed in the plaintiff’s bill was denied in the answer, and is not sustained by the proof. It rests on no agreement written or oral, and cannot be inferred from the payment of tolls for the use of the road. From the mere existence and use of the turn-out from the track for seventeen years, and the receipts for mending the siding, and the expense of the castings, &c., we are asked to infer an agreement for an absolute, enduring and irrevocable right to maintain a private switch and frogs in the track of a railroad, built under a charter for general railroad purposes. The limited use of the track heretofore cannot change the character of the powers and duties of the company. We can infer a permissive use of the track in this way from the facts in evidence. But to suppose that the company, which is but a trustee of the right of way for the Commonwealth for the use of her citizens, intended to grant a privilege for all' time, and without compensation or control, is incompatible with the nature of the subject and the duties of the corporation, and is wholly improbable. It is not the siding into the plaintiff’s lot, but the obstruction in the track, which interferes with the company’s rights. The switch is an opening directly in the line of the track, breaking its [474] continuity, exposing the company to the dangers of accident, and imposing the expenses of guarding and maintaining its proper relation to preserve a continuous rail. So the frogs lie directly in the line of travel, obstructing its free use, and causing great wear and tear of machinery. How can it be supposed a company chartered to build a highway for the conveyance of passengers, and the transportation of merchandise, intended, when it suffered this direct interference with its track, to concede a right to maintain it for ever, no matter what might be the increased demands of travel and trade, and the changes of business ? . How can it be supposed that the plaintiff himself, who must be presumed to know the public objects of such a highway, would be so misled as to believe he was acquiring an enduring right to control the use of the highway to his private ends ? It is inconceivable that any one should think that a mere act of sufferance would vest in him a permanent title to maintain an opening and a damaging obstruction to the track free of all charge. There is no agreement, and not being misled, there can he no estoppel.. In order that the improvements on his own lot to adapt it to his trade should operate, he must convince us that they were induced by such acts and representations of the. defendants as warranted him fully in believing that the right conceded to him was such as he sets forth in his bill. This case differs totally from those instances of privilege in or upon private property granted by individuals having an absolute dominion over their own estates, fettered by no public duty, where the expenditure of money in pursuance of the license can be accounted for on no other presumption that, that of a mutual understanding that the privilege should remain unaltered. The nature of the property, the duties of the corporation, its limited powers, and the character of the gap in one track and of the' obstruction in the other, all unite, in the absence of express agreement, to convince us that no fixed, unalterable and unburthened privilege was conceded. Without any case precisely in point, some of the numerous citations of the defendants contain principles which assist in leading us to this conclusion. The judgment is therefore affirmed.