Black v. Philadelphia & Reading Railroad

The opinion of the court was delivered, May 7th 1868, by Read, J. This is a bill in equity by the owners of houses and lots of ground on the north-easterly side of William street, in the Twenty-fifth Ward of the city, asking for an injunction against the defendants, the practical effect of which would be to take up and destroy one of their tracks at the termination of their railroad on the river Delaware. The ground on which the plaintiffs found their application is, that this track crosses William, Bath and Bank streets at grade, and is a public nuisance from which the plaintiffs suffer special damage not shared by their fellow-citizens. The track complained of is in certain public streets, and not upon' any property of the plaintiffs, and, if a nuisance, is a public one, which could be the subject of a public prosecution, which the Commonwealth have not deemed proper to institute. The plaintiffs are therefore bound to make out two things: 1st, that this is a public nuisance; and, 2d, that the plaintiffs have sustained special damage, which if they do not prove, renders the first question immaterial. We do not think that the plaintiffs have by the single witness examined by them established that they have suffered an injury quite distinct from that of the public, in general (2 Story’s Eq. 924, a, 18 Law Times 126), and of course upon that ground the decree below should be - affirmed. But as the first question whether it is a public nuisance has been discussed at length, we have thought it proper to express our views upon it. By the Act of 4th April 1838, under which the defendants were incorporated, their railroad might terminate “ at some suitable point in or near the city of Philadelphia,” “ or on the line of the Philadelphia and Columbia, or of the Philadelphia, German-town and Norristown Railroad,” and under these powers they constructed a railroad terminating on the river Delaware at Richmond, near the then city of Philadelphia. A coal railroad terminating on a navigable river must, in the course of thirty-five years, necessarily increase its wharf accommodation far beyond its original wants, and this must necessarily increase the number of tracks or branches leading from the main stem to its various wharves, where the coal is shipped to all parts of the United States. “ The word ‘ railroad’ ex vi termini includes sidings,” and must of necessity include the present track or branch which is complained of by the plaintiffs. The fact that the tonnage has increased to 4,400,000 tons in twenty-two years, shows the propriety of giving such a fair and liberal construction to the chartered powers of the company. But this would appear to be a branch railroad within the meaning of the 17th section of the Act of 13th April 1846, which [253] has been extended by the Acts of the 12th April 1864, Pamph. L. 396, to the Philadelphia and Reading Railroad Company. This was decided in The Mayor, &c., of Pittsburg v. The Pennsylvania Railroad Company, 12 Wright 355, where the branch started from the terminus in Pittsburg, crossed the Monongahela by a bridge and connected their road with the Pittsburg and Steubenville Railroad in South Pittsburg. The approval of the route by the Richmond ordinance of 1854, and by the city ordinance of 1860, makes the two cases identical in their features. The necessity and propriety of this construction are best shown by the statistics of the coal trade at Port Richmond in 1867, in which year from that point 583,444 tons of coal were shipped through the Delaware and Raritan Canal, and by a statement of the Board of Port Wardens, it is shown that the whole number of coastwise vessels which arrived in this port last year was 5233,. of which 4521, or 86 per cent, went to the wharves of Port Richmond for coal, leaving 712 arrivals for other cargoes. The real prosperity of this section of' the city is therefore dependent upon the extension of this valuable trade, which must affect favorably the property of the plaintiffs, whose real interest is that they should fail in their application to this court. The first attempt to improve Richmond was made about fifty years ago by making it a depot for the rafting and lumber trade of the Delaware, which ruined its original projectors. The same ■ fate would have attended the original purchasers of the Bush Hill estate, if they had not compromised with the owners; and in later years the speculation in League Island proved a failure. And yet all these projects were wise and judicious, except that they were a quarter of a century in advance of the age. For my own part, I firmly believe that it is the interest of these plaintiffs that their bill should be dismissed. Decree affirmed and appeal dismissed, at the costs of the appellants. Thompson, C. J., dissented.