Cake v. Philadelphia & Erie Railroad

Mr. Justice Trunkey delivered the opinion of the court, Among the privileges granted by Act of April 3d 1837 was not that of appropriating a public highway. Section 5 of the supplement of March 27th 1852 gave the right to change the site of a turnpike or public road, when necessary, and required the company to reconstruct the same in as perfect a manner as the original road, and pay the damages caused by change of location. Not till 1864 did the legislature authorize the taking of a street or alley in a city or borough for the use of this corporation. In that year two acts were passed, one extending the tenth and eleventh sections of the Act of February 19th 1849 to the Philadelphia and Erie Bail-road, the other giving power to the “company to take and appropriate such property, however occupied, as they may deem expedient, for the use and construction of depots, sidings, turnouts, water-ways, workshops and other improvements along or immediately connected with their line, that may, in their opinion, be needful for the prosecution of the business to be done on said Philadelphia and Erie Bailroad.” The latter, approved July 22d, does not repeal the former, unless the two are inconsistent or repugnant. It is urged that “property,” in the Act of July 22d 1864, includes public highways. The course of previous legislation for this -railroad does not show that such was the int'ent, but rather induces belief that private property only is within this supplement. Under the Act of 1837, when the company crossed a public way, it was required to construct and maintain a causeway or bridge; under the Act of 1852, when it takes a turnpike or public road, it is bound to make another as good; and if, under the Act of January 14th 1864, it should occupy a street or alley, it will be liable for ample compensation to owners of adjoining lots for damages caused by excavation or embankment. All legislation for this defendant contemplates payment of full damages for property taken. This is noticeable in the proviso to the Act of July 1864. Yet if that act confers the right to Jake streets and alleys in cities and boroughs, a principal street may be destroyed for all use except for the railroad, the public greatly injured, owners of lots and buildings’ deprived of the means of ingress and egress, and [312] the company not be liable for a dollar toward compensation for the ruin. The literal meaning of the phrase “property, however occupied” does hot stop with streets, but includes cemeteries, county and city grounds and buildings, and everything else which the company, in its opinion, may deem expedient to take. Possessed of no such powers when constructing the main line, the interpretation asked for this act would leave no place sacred from appropriation for its turnouts and workshops. By all authority no lax construction of grants to corporations is required against public interest and individual rights. The Act of July 22d enlarges the grant by Act of January 14th in a number of respects, such as authorizing the company to take places of public worship and dwelling-houses without the owner’s consent for its sidings, depots and the like. It may be reasonably construed as enacted for this ■purpose. No presumption can'be made that the legislature purposely transcended their authority; and even if the Act of January 14th was not binding on the company, without its acceptance, it may be considered in ascertaining the intendment of the later act. We are of opinion that the right to take streets and alleys in cities and boroughs, for the use of the company, is not given by the Act of July 22d 1864. The Act of January 14th 1864, is to be considered precisely as if the tenth and eleventh sections of the Act of 1849 were copied therein at length. If accepted by the company it became a part of its charter, as did other supplements to the Act of 1837. Extending a part of the general statutes to the company excluded all other parts. “The naming of one is an exclusion of the other.” The charter gave no right of appeal from an award of viewers to appraise 'damages. The proceedings in this case were before the Act of June 13th 1874, Pamph. L. 283, and are unaffected by it. The company took, appropriated and are still using the street. The plaintiff instituted proceedings for appraisement of damages, as provided by Act of January 14th 1864. Perhaps the company had its option to refuse the tenth section as unconstitutional and invalid, or to accept it. Perhaps the eleventh section, relating to remedy, was valid without acceptance. As we view this cause these questions need no discussion. The parties do not claim that the street was unlawfully taken by the company, nor -that its occupation has been a continuous nuisance. Each puts the case on the basis that the street was rightfully appropriated. Neither interest nor policy induces the one to say it took and keeps without right, and there is little motive for the other to bring an action which could be successfully answered by the statute. In making the embankment in the street, the company became liable for damages, and the person entitled pursued the prescribed remedy. If there was no cause for setting aside the award of viewers it was final as to both. Exceptions were filed by the company and, after argument, were disal [313] lowed by the court. That adjudication is not here for review. No right of appeal was given to either party, and the first assignment of error is well taken. Judgment reversed, and the appeal from report of viewers is stricken off. The record ordered to be remitted for ■ further proceedings.