Pittsburgh, Virginia & Charleston Railway Co. v. Commonwealth

Mr. Justice Mercur delivered the opinion of the court, October 16th 1882. This indictment is against a railroad corporation subject to the Act of 19th February 1849. The indictment contains two counts, the first charges a nuisance in a certain street in Monongahela city by the construction of an embankment and putting and maintaining materials thereon inthesaid street; the second is based on the 13th section of said Act: Pur. Dig. 1221. It declares: “If any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall eause the same tp be reconstructed forthwith, at their own proper expense, on the most favorable location and in as perfect a manner as the original road. As to the first count the jury returned a verdict of not guilty. The second charges that the corporation did enter upon a certain public road in said city and take thereof one hundred and twenty yards in length, and thereon place materials, erect an embankment, and construct a railroad so as to hinder and obstruct the public in their use of the same: yet it did not, after taking the said public road and highway, forthwith cause the same to be reconstructed as required by the statute and its duty. On this count the corporation was found guilty, and sentence pronounced. The first and second specifications are that the statute does not apply to the roads taken and occupied by the corporation, inasmuch as that portion was within Monongahela city when the railroad was constructed thereon. The language of the statute is, “ any turnpike or public road.” When the railroad was surveyed and located, it was unquestionably on a public road. The road was not within the city. Some two years thereafter the city was incorporated, and took within its limits, the whole of that portion of the highway on which the railroad was located. The construction thereof was be'gun six years afterwards and finished the following year. It is contended that by the extension of the jurisdiction of the city over the road it ceased to be of the class of highways named by the statute. This view does not give due weight to the effect of the location of a railroad. The location of a railroad is the taking and appropriating of the land. The right of the landowner to proceed and have his damages assessed is complete. He may recover not only for the damages caused by the location, but also for the subsequent construction. The damages cannot be severed. They must, all be ascertained in the one proceeding: Neal v. Pittsburgh & Connellsville Railroad Co., 2 Grant 137; Wadhams v. Lackawanna & Bloomsburg Railroad Co., 6 Wright 303; Beale v. Pennsylvania Railroad Co., 5 Norris 509. Immediately after the location is made either the corporation or [197] the owner of the land may apply for the assessment of all damages done and likely to be done by the construction of the railroad Pur. Dig. 1219 pi. 35. When thus ascertained they may be collected before any construction of the railroad is commenced: Neal v. Pittsburgh & Connellsville Railroad Co., 7 Casey 19. Inasmuch then as the location of the railroad on the public road was an appropriation of the latter the subsequent extension of the city so as to include this road did not so change its character as to withdraw it from the operation of the Act. The city took the road charged with its burden. It still retained the attributes of a public highway. The necessity of furnishing a substitute as soon as it was occupied by the railroad was in no wise lessened. By such occupancy, a necessity for the change of the site thereof was created, and the duty to forthwith reconstruct the same is imposed on the corporation by the express terms of the Act. In accepting its charter, the corporation acquires all the rights and privileges thereby given; but it assumes all the duties and obligations thereby imposed. Having taken the benefits, it cannot repudiate the burdens; it cannot be tolerated that the corporation may claim to enjoy everything beneficial to itself, and wholly omit to perform an Act in which the public is so largely interested. The rights granted are in consideration of duties assumed, among which is the duty of reconstructing the public highway from which it has excluded the public. Having accepted all the provisions of the Act, this duty arises not only from the imperative command thereof, but also from an implied agreement apd by tenure. The duty then being undoubted, will an indictment lie against the corporation for a willful disregard of it ? The injury is not to an individual only, but to the public. It is the denial to every citizen of the Commonwealth of a right to the use of a public highway in place of the one taken by the corporation. It is true, on failure of the corporation to reconstruct the road, the Municipality ma.y do so, and recover the cost thereof of the railroad company: Bean v. Howe, 4 Norris 260; Pennsylvania Railroad Co. v. Borough of Irwin, Id. 336. It may also be compelled by mandamus, to reconstruct: Rex v. Commissioners of Dean Inclosure, 2 Maule & Selw. 80; Same v. Severn R. R. Co., 2 Barn. & Ald. *646. The fact that these remedies exist furnish no reason why an indictment will not also lie. Indictment is to punish for the past, mandamus is to provide for the future. The Act provides no specific remedy for the enforcement of this duty., All common law remedies are therefore open against the violators of this law. The failure to reconstruct concerns the public. It is therefore an injury to the Commonwealth, to which belongs the franchise of every [198] highway as a trasteo for the public: O’Connor v. Pittsburgh, 6 Harris 187. A railroad corporation subject to the Act of 19th February 1849, may, under its provisions take possession of such portions of any public road as maybe within the limits of the land taken. It is not subject to indictment for a nuisance, for the mere taking and occupancy of a public road: Danville, &c. Railroad Co. v. Commonwealth, 23 P. F. Smith 29. The question, whether the omission to reconstruct it on proper ground and in a suitable manner, would so subject the corporation, did not arise in that case, and was expressly reserved. The 12th section of the Act provides, that whenever, in the construction of a railroad, it becomes necessary to cross or intersect any established road, it shall be the duty of the officers of said company, to so construct the railroad as not to impede the passage or transportation of persons or property along the established road. In Northern Central Railway Co. v. Commonwealth, 9 Norris 300, it was held an indictment would lie against the corporation for so grading its crossing on a public highway, as to constitute a serious inconvenience and dangerous obstruction to travel. The right to cross was clear. The offence was the failure to construct according to the requirement of the statute. It may be claimed, however, that this was rather a case of misfeasance. It was nevertheless a failure to do an. act in such a manner as its duty required. In Rex v. The Mayor, &c. of Stratford upon Avon, 14 East 348, the corporation was indicted for non-repair of a bridge, which it was the duty of the corporation to repair. In the Queen v. Railway Co., T. T., 3 Adol. & Ellis N. S. *223 (43 E. C. L. Rep. 708) it was held, the corporation was liable to indictment for not constructing certain arches, pursuant to an order of the sessions and the statute, incorporating the company, to connect certain lands severed by the railway: S. C., 3 Eng. Railw. Cases 148. In Regina v. Great N. of E. Railway Co., 9 Adol. & Ellis N. S. *316, the company had cut through a carriage road with its railway, but had not carried the road over the railway by a bi’idge as required by the statute. In delivering the judgment of the court sustaining the indictment, Lord Denman, C. J., said, “the question is, whether an indictment will lie at common law against a corporation for a misfeasance, it being admitted in conformity with undisputed decisions, that an indictment may be maintained against a corporation for non-feasance.” He then proceeds to show that the distinction between part performance and no performance rests on no solid foundation, and that an indictment will lie for either. So in Lyme Regis v. Henley, 3 Barn. & Adol. 77 (23 E. C. L. Rep. 43), by the terms of its charter a duty was imposed on [199] the borough or town to keep in repair, and maintain certain banks, sea-shores, mounds and ditches, &c., which it omitted to do. The action was by one aggrieved. In delivering the judgment of the court, Lord Tentekden, C. J., said “ we think the obligation to repair the banks and sea-shores is one which concerns the public, in consequence of which, an indictment might have been maintained against the plaintiffs in error for their general default.” “ An indictment may be sustained for the general injury to the public,” and the party aggrieved have his remedy. The law is correctly stated in section 91 of Wharton’s Grim. Law. “We may therefore hold that a corporation may be indicted for a breach of duty imposed on it by law, though not for a felony, or for public wrongs involving personal violence as riots or assaults.” It follows that the learned judge committed no error in the portions of the charge covered by the third and fourth specifications,. nor in overruling the motion in arrest of judgment. The remaining specification is to the form of the sentence. The offence of which the company is convicted is not for taking possession of the public highway.in the construction of its railroad; but for the disregard of its duty to forthwith reconstruct, so as to provide a suitable highway in lieu of the one taken. It cannot, therefore, be compelled, by sentence in this case, to either remove the obstruction from the old road, nor to construct a new one. The sentence can go no further than to punish for the offence committed. That offence is the neglect to reconstruct within a reasonable time. The performance of that duty cannot be specifically enforced by sentence on this conviction. . The fine imposed is merely nominal. We suppose the company defended against this prosecution to test its liability to reconstruct; that being now established, we assume the company will proceed without any delay to, discharge its full duty. The sentence is therefore amended by striking therefrom, all except the fine of five dollars to the Commonwealth and the costs of prosecution; and thus amended the judgment is affirmed.