Pennsylvania Railroad Co.'s Appeal

Mr. Justice Trunkey delivered the opinion of the court October 4th, 1886. Section 77 of the Act of June 9th, 1832, authorized the Portsmouth and Lancaster Railroad Company to locate and construct a railroad of one or more tracks from Portsmouth to a point west of the city of Lancaster, and connecting with the Pennsylvania Railroad, and to construct all the appendages necessary for the convenience of said Company in the use of said railroad. And section 81 made it the “dutj'. of said company to construct and keep in repair good and sufficient passages across the said railroad where any public roads shall intersect and cross the same.” Section 78 authorized said company to enter upon anjr lands for the purpose of surveying and locating the route, and after determining the route, to enter upon, take possession of, and use the lands for the purpose of constructing said road. And sections 79 and 80 provided the mode of ascertaining the — 525 — damages when the said company could not “agree with the owner or owners of such required land for the purchase thereof.” The supplemental Act of March 11th, 1885, authorized said company to construct an extension of the railroad from Portsmouth to Harrisburg, and extended all such provisions of the Act of 1832, as were applicable to the locating,' constructing and maintaining of the construction of said extension of said railroad. The Act of April 10th, 1867, empowered the Pennsylvania Railroad Company, “ from time to time, as they may deem necessary, to construct and use, along adjoining or contiguous to, their lines of railroad, or the lines of railroads now owned or leased, or that may be hereafter owned or leased by them, additional tracks, sidings, depots, turnouts, waterways, workshops and other appurtenances requisite and needful for the prosecution of their business, and for the accommodation and transportation of the trade and traffic over and upon the said railroads; and they are hereby also authorized and empowered to straighten and improve the said lines of railroads, and to construct the needful appurtenances thereto; and for all and any of such purposes, the company shall and may enter upon, acquire, take and appropriate such lands, tenements and property along, adjoining or contiguous to, said railroads or elsewhere, that they may deem necessary for the purpose of straightening, or improving of tire said railroads, and constructing the needful appurtenances thereto.” The foregoing are the statutory or charter provisions relating to the fundamental question in this issue, namely: have the appellants the right to occupy longitudinally a public road or street in a borough for the laying of their railway tracks? Reference was made to the Statute of March 17th, 1869, to enable railroads, canal and slackwater navigation companies, to straighten, widen, deepen and otherwise improve their lines and works, but that Statute confers no greater power on railroads than was conferred on the appellant by the Statute of April 10th, 1867. In passing it may be noted that the learned Master referred to the provisions relative to the occupancy of streets, in the general railroad law of 1849 and 1868, in terms which might be understood that those provisions are part of the charter of the appellants, or of their road held by lease, but at the argument no such position was taken. Indeed, the provision is alluded to in appellants’ argument, but not as if to be read into their charter. A company organized under the general Statute may locate its railroad on a street or alley, because that Statute expressly confers the power. That the legislature may authorize a railroad company to — 526 — lay its tracks on a public street has not been doubted since the decision in the Philadelphia and Trenton Railroad Company’s case, 6 Whar., 25. It ought to be equally free of doubt that when not authorized by legislative grant, a railroad company has no right to appropriate and use .a street or public highway for the laying of the tracks of its trunk line, switches, sidings or branches. And the power must be given in plain words or bjr necessary implication : Commonwealth v. Railroad Company, 27 Pa. St. 339; Penn. Railroad Co.’s App., 93 Id., 150. The course of legislation in Pennsylvania, relative to railroads, shows continuous care to proteot the public roads from the grasp of railroad companies except upon terms that they render an equivalent to the public. A fair example is the legislation upon this point for the Pennsylvania Railroad Company. At first, the Act of April 13th, 1846, provided that when necessary to cross or intersect any established road or way, said company should so construct their road as not to impede the passage or transportation of persons or property along said established road or way. This being the only provision in the Act of Incorporation relative to public roads, in face thereof, it would have been exceedingly difficult, in accordance with the rules of interpretation, to have construed the general terms authorizing the taking of land, to authorize the taking of an established road and laying the track thereon longitudinally. Therefore, supplemental Acts were enacted providing that when said company should find it necessary to change the site of any turnpike or public road, or any street, lane or alley, in any town, borough or city, they should reconstruct the same forthwith, on the most favorable location, and in as perfect a manner as the original road. In this connection it may be remarked that the charter authorized the making of such lateral railroads or branches, leading from the main line to such points in the counties through which the main line may pass, as the president and directors may deem advantageous, subject to the conditions and provisions relative to the main line; and hence when it was ruled in Pittsburgh v. Pennsylvania Railroad Co., 48 Pa. St., 355, that said company, within the designated counties, had as large powers to make branches as they had to make the main line, and could construct a branch through the city of Pittsburgh, by a route best suited to promote the convenience of the inhabitants of the city and the interest of the company, the ruling accorded with the precise terms of the charter. That case is no precedent for enlarging corporate grants by construction. It has been said with reference to charters of incorporation, that, “ whatever is doubtful is decisively certain against the — 527 — corporation.” There seems no occasion to apply that rule in this case. Nothing in the Statutes relating to the powers of the Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company, shows'an intendment that the company should have right to lay its tracks lengthwise on other public highways. Of course it would be necessary in the construction of the railroad to intersect and cross other highways and the charter compels the company to make and keep in repair good and sufficient passages at such crossings. This express provision left no room for doubt, as to any kind of occupancy of public roads not mentioned. What is not plainly expressed, or necessarily implied, is not granted. Nor is the meaning of the Act of April 10th, 1867, doubtful. It contains no expression respecting public roads or streets. It does not extend the branching powers of the Pennsylvania Railroad Company to the lines it holds by lease. In view of the previous legislation relative to these companies, the words, “lands, tenements and property,” are not used in a new sense which includes established roads. By the letter of the Statute lands and property may be taken for workshops as well as railway tracks. This is reasonable when applied to private property. But if public roads and streets are included as property which may be taken for workshops, the Act is unique, and a wide departure from the line of legislation relative to these railroad companies. The appellants admit that when the bill was filed they were “ about to construct a railway track or siding on and' along the bed of said Brown street from the point where said street touches the main line of said road, intersecting Union street, and passing by and along the whole length of the properties on said Brown street owned by your orators respectively.” The Master finds that “ the track or siding, which is a continuation of the siding that existed before, extends along Brown street, a distance of 1000 feet, from the railroad to Canal street, and to within 150 feet of the canal where the street terminates,” and that a number of factories, mills and business houses are in the vicinity of the terminus on Canal street. One of the witnesses called by the defendants testifies that he has urged this siding for years because of the necessities for business; because it will benefit the town; that its continuation to his land would benefit the whole town; an extension of this track would open up business sites, and this is the first the Pennsylvania Railroad has done in that direction. Whether this railway track be called a siding, or some other name, it is easy to ascertain that if is laid on Brown street from the main line to a point in the vicinity of mills, factories and places of business. That it is a benefit to the business of — 528 — that part of Middletown is undeniable. No doubt, were it extended farther,» land in the southeast part of the town would be enhanced in value. This inquiry is not respecting the main line which has been laid for many years, nor the laying of additional tracks alongside that line; nor the right of the appellants to construct sidings, turnouts, depots or workshops; nor the right of the appellants to construct a railroad from their main line to mills and places of business in the south-east part of the town ; but whether they can lawfully take and occupy a street from the main line to mills and factories. As already seen, they cannot. This case differs widely from Getz’s Appeal, 10 W. N. C., 453. In that it was denied that the railroad had the right to construct the siding at all. The plaintiff’s chief complaint was the injury doné by taking part of his lot, destroying his dwelling house and obstructing his way to the street; but it was not contended that, if the charter gave the right to construct the siding, it did not give the right to construct it on the street. In Cleveland & Pittsburgh R. R. Co. v. Speer, 56 Pa. St., 325, upon the grant in the charter, and the route authorized therein, it was said that the implication was irresistible, that the company could use Preble street for the tracks of its railroad. Stress was put on the fact that the railroad had been constructed for years before the beginning of the suit, and it was said, “ Whatever private remedies individuals might have had to prevent the location there, and to compel a change of site before consummation, it is now too late to treat the location as a mere nullity.” And, if the act of location was “voidable because other ground ought to have been taken, none but the commonwealth can now call the company to account for it.” That suit was when a party had no remedy for injury to his property, if none were taken, by the laying of a railroad at grade on a street in front of his dwelling. And it was before the Act of June 19th, 1871, which provides that in all proceedings, at law, or in equity, in which it is alleged that the private rights of individuals aie injured or invaded by any corporation claiming to have the right to do the act from which such injury results, it shall be the duty of the court to inquire and ascertain whether such corporation possesses the right to do the act, and if such right has not been conferred, if the suit be in equity, the court shall restrain such injurious acts by injunction; if at law, the party may recover damages for such injury. In that case, the switches complained of were within the lines of Preble street until they reached the land owned by the railroad company. It is urged that the plaintiffs are not entitled to injunction — 529 — because they have not suffered irreparable injury. This would be sound if the defendants had right to lay the track on the street. But, having no such right, the case is different. Where railroad companies or individuals exceed their statutory powers in dealing with oilier people’s property, no question of damage is raised when an injunction is applied for: Commonwealth v. Railroad Co., 24 Pa. St., 159. True, they have not taken the plaintiffs’ property, and, if the plaintiffs have not been specially injured, they are not entitled to injunction. But if the defendants, without authority from the state, create a nuisance on the street, one who is specially injured is entitled to relief without proving the amount of damage. In such case, the defendants are not in the position of a person who carries on a business, lawful in itself, of which a neighbor complains. They are not on their own land. If not empowered to use the street, they have no more right to construct a railroad on it than any other person. A wrongdoer may not set oft benefits to prevent the injured party obtaining relief. A man is not to be driven from his home by offensive structures, or compelled to sell it even for more than its value by one who is not invested with power to injure or take it for public purpose. As this case comes, it is wholly immaterial whether the railroad has increased the market value of the plaintiffs’ dwellings. They are not claiming damages. All persons who merely travel on Brown street suffer the same kind of inconvenience or injury, though the suffering may differ in degree. But he who has his dwelling fronting on the street who cannot turn his carriage between the front of Ins lot and the rails, who must drive around a block because he cannot turn in the street, whose business as a physician is interfered with, or who is subject to the smoke, noise and other incidents of railway trains passing near his door, suffers a special injury which differs in kind as well as degree from that done to the mere traveler. Were the road lawfully constructed, the only question would be whether the plaintiff's lots were worth less by reason of the construction, and, if so, how much. The bill was promptly filed, and the plaintiffs prayed that the “defendants, their servants, agents and workmen may be restrained by injunction from constructing said railway track, or maintaining the same upon said public highway.” And they prayed other relief. If the defendants went on and laid the track after notice of this proceeding, they have no reason to complain of a decree which puts the plaintiffs in the situation they were when, they asked preliminary injunction, — 530 — No remedy is complete that does not require removal of the track-laid since the defendants had notice of the action. And now it is ordered and decreed that the decree of the court below be and is affirmed; that the appeal be dismissed at costs of theappellants; and record remitted, that the decree be enforced.