McAboy's Appeal

Mr. Justice Gordon delivered the opinion of the court, January 5th, 1885. It seems from the statement of facts which has been submitted to us, that the Pittsburgh and Connellsville 'Railroad Company, acting under and in accordance with an ordinance of the common and select councils of the city of Pittsburgh, is about to extend the line of its road from its present station on the eastern side of Grant street, along and upon the Monongahela wharf, to the' eastern side of Smithfield street. In view of*the rapidly increasing traffic of this road, it has been deemed advisable, both by the company and the city councils, that it should be thus extended, and a new passenger station built over the said wharf, yet in such a manner, nevertheless, as not to obstruct the passage of ordinary vehicles to and from the river. To prevent this the appellants, who are owners of property fronting upon Water street and this public landing, filed the bill which gives rise to the present controversy. It is admitted that the proposed work will result in damage, at least of an incidental character, to the complainants, hence, their right to maintain this bill, in the absence of a superior or countervailing right on part of the defendant, is not disputed. The question then is: under what authority does the Railroad Companjr assume to occupy the public wharf or thoroughfare in question ? The answer of the appellee is, first; that such authority is conferred upon it by the ordinance above mentioned, and by the Act of the 15th of April, 1869, which empowers the city councils to contract with the three railroad companies therein mentioned, or either of them, for the vacation and closing up of the whole or any portion of any street or alley in the said city. But we do not agree with the proposition that this Act at all applies to the case in hand. Our dissent is not founded upon the objection that the ground in question may not be embraced under the term “ street,” but because the design proposed does not require the vacation or closing up of the whole or any part of a street, but simply the occupation in common with the public of part of a city highway called the “ Monongahela Wharf.” This no more requires vacation than did the occupation of Liberty street by the railroad tracks now in use upon it. Neither is it necessary in order to warrant the action of the city councils, and the proposed occupancy by the defendant, that the latter should first acquire the property adjacent to the intended extension. The Act of 1869 does not, therefore, sustain the assumption of the appellee, and had it nothing more substantial upon which to ground its claim there could be no place found for it in a court of equity. It is urged, however, secondly, that, abandoning the defence [557] based on the Aet of 1869, the decree of the court may be supported under and by force of the Act of April 1st, 1888, by which the Pittsburgh and Connellsville Railroad Company is authorized “ at any time hereafter, to survey, locate and construct one or more branches of railroad, extending from any point or jmints in any county through or in which the said main line passes, or in any adjoining county, with a view to the development of the territory within said limits, and furnishing an outlet for its productions,” and that if a warrant for the ordinance of June 20th, 1870, is otherwise wanting, it is to be found in the Act of June 9th, 1874. The position here assumed is undoubtedly correct if the proposed extension is to be regarded as a branch of the ap-pellee’s main improvement. This company must be regarded as the locum tene.ns of the state, and the legislature having conferred upon it the branching power, it may do just what the commonwealth could do under like circumstances; that is, when necessary for the proper execution of such power, it may occupy the public highways: Cleveland & Pittsburgh Railroad Co. v. Speer, 6 P. F. S. 325. And so, from the language held in a case similar to the one in hand, Mayor, &c. of Pittsburgh v. The Pennsylvania Railroad Co., 12 Wr. 355, it would seem that the necessity for such branches, and their direction rest in the will and discretion of the president and directors of the corporation by which they are to be constructed. As to the Act of 1874, though it may be regarded as conferring no new rights upon railroad companies having, as in the present instance, the branching power independently of this statute, yet, even as to them it may be treated as a police regulation empowering the public authorities, for the safety of the people, to control the action of such companies in the extension or re-location of their roads, and the application of the statute being thus general, there is no doubt but that it effects a ratification of the previous contract between the city and the appellee. We cannot, however, see how this becomes a material question in the present controversy; for if this corporation has the power to extend its line over the wharf, then the contract between it and the city authorities is a matter which concerns themselves only, and with which third parties cannot be allowed to interfere. There remains then, but the single question: is the proposed extension a branch within the meaning of the Act ? We think it is. We cannot agree that the definition of such a structure shall depend either upon its length or direction. If the projection of a completed road for one square is too short for a branch, then, what distance will be required to [558] allow the use of this term. The question involves in itself its own absurdity. The mistake is found in giving too narrow a definition to the word “branch.” According to Worcester it may mean, “ any distinct article or portion ; a section ; a subdivision.” But if for the word “ branch ” we use “ section ” the subject under discussion is relieved of all possible obscurity. In like manner are we delivered from hesitancy in the matter of direction; that is, whether we are to regard the word “ branch ” as merely an offshoot of the main road, or whether we may apply it to a direct extension from the terminus, since the substitution of the word “ section ” dissipates anything like doubt on this score. Moreover the case of the Western Pennsylvania Railroad Company’s Appeal 3 Out. 155, is in principle so like the case in hand that it may be regarded as having settled the question we are now considering. This case was ruled under the 9th section of the ^.ct of April 4th, 1868, the language of which is, in all material particulars, similar to the Act conferring branching powers upon the defendant corporation. In commenting upon this part of the statute, Mr. Justice Stebbett, who delivered the opinion of this court in the case cited, says : “ The main contention of the appellant was that the Pittsburgh and Western Railroad Company has no authority to extend its road west of the eastern line of Sandusky street, because its predecessors in title had located, marked, and determined the route of the Road, and by accepting the ordinance granting the right of way to the east line of Sandusky street, had selected and finally fixed that part of its western terminus; and because the appellee had completed the road to that point and there fixed its terminal depot.The branching power given by the 9th section of the Act of 1868, is sufficiently broad and comprehensive to authorize the construction of the road in question as a branch, and there is no valid reason why it may not be constructed from the terminus as well as from any other point of the main line of the road.” As the legal principles here stated are based on facts very like those that are involved in the present controversy, we may regard the case as a definitive determination of the contention in hand in favor of the appellee. The decree of the court below is affirmed and the appeal dismissed at costs of appellants.