Perry Co. v. Newport & Sherman's Valley R. R.

Opinion by Mb. Chief Justice Paxson, This was a case of grade crossing. The Newport & Sherman’s Valley Railroad Company, appellant, was incorporated on the 31st day of July, 1890, to construct and operate a narrow gauge railroad from Newport to New Germantown, Perry county, Pa., a distance of thirty miles, and had constructed its road, and had the same in operation, as far as Loysville, an intermediate point along its line, prior to the time when the Perry County Railroad Extension Company obtained its charter. The latter company was incorporated to construct and operate a standard gauge road from Bloomfield to Landisburg with a branch to Loj'-sville, all of which points are in the county of Perry, and all of them lying south, or to one side of the line of the Newport & Sherman’s Valley Railroad. It has so located its road as to cross the road of the Newport & Sherman’s Valley Railroad Company, and then recross it at a distance of about four miles, thus making a loop. It claims the right to construct both crossings at grade. The appellant denied the right to cross at grade, and this bill was filed in the court below by the appellee to restrain appellant from interfering with such crossing. The learned court below sustained the bill filed by the appellee, decreed a grade crossing upon certain conditions, and enjoined the appellant from interfering with it. From this decree the latter entered an appeal. It is a mistake to suppose that a railroad company, chartered under the Act of 1868 and its supplements, has an absolute — 198 — right to cross the line of a senior railroad at grade. The Act of the 19th of February, 1849, P. L. 88, entitled “ An Act Regulating Railroad Companies,” contains no express authorit}r for crossing the tracks of another company. It gives a general authority to lay out and construct a railroad between designated termini. It follows that the right to cross, when absolutely necessary, follows by necessary implication, otherwise the grant, in some instances, would entirely fail, as, for instance, where another railroad lies between its termini. In such case, if it could not cross, it could not build its road. The 5th section of the Act of 1868, under which the appellee was incorporated, provides: “ And said corporations thus created, shall be entitled to exercise all the rights, powers and privileges .... of the Act regulating railroad companies, approved on the 19th day of February, 1849, and the several supplements thereto, as fully and as effectually as if said powers were specially incorporated in said charter.” And the 10th section provides that: “Companies formed under the provisions of this Act shall have the right to construct roads so as to cross at grade the track or tracks of any other railroad in this commonwealth.” The object for which the Act of 1868 was passed is unmistakable. It was to vest in voluntary associations of individuals under definite, uniform and general rules, power which had previously been given, only by special Acts of incorporation: Edgewood Railroad Company’s Appeal, 79 Pa. 257. The appellee contends that under this Act it has the absolute right to cross the track of any other railroad at grade, and that the nine men, or more, who obtained the charter, are the absolute judges of the location of their road, as well as of the necessity of crossing at grade. We need not speculate as to how this might have been, had the Act in question not been supplemented by subsequent legislation. The legislature, however, was quick to see that to permit any nine men, who saw proper to obtain a charter under the general railroad law, to cross and re-cross the line of another railroad at their will and pleasure, might be productive of disastrous consequences. They therefore enacted the Act of the 19th of June, 1871, P. L. 1860, the 2d section of which pro vides : “ When such legal proceedings relate to crossings of lines of railroads by other railroads, it — 199 — shall be the duty of courts of equity of this commonwealth to ascertain and define, by their decree, the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed; and if in the judgment of such court it is reasonably practical to avoid a grade crossing, they shall by their process prevent a crossing at grade.” In addition to the legislation referred to, the appellee invokes section 1, of article 17, of the constitution, as authority for crossing at grade. The section referred to is as follows: “ Every railroad company shall have the right, with its road, to intersect, connect with, or cross any other railroad.” It is sufficient to dismiss this section, with the remark that it does not refer to, or authorize grade crossings. It was doubtless passed to prevent railroad companies, occupying particular portions of territory, from interfering with the development of other sections, by unreasonably preventing a crossing. A decree preventing a grade crossing does not conflict with this provision, of the constitution. We must consider the legislation bearing upon this subject as a whole, and the Acts of 1849 and 1868, before referred to, as modified by the Act of 1871. The latter Act does not put the rights of the company, desiring to cross the railroad of another, on a level with the rights of that company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute, the one, that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other, that crossings at grade shall be prevented whenever they can reasonably be avoided: Pittsburgh & Connelsville Railroad Co. v. The South West Railroad Co., 77 Pa. 178. In that case we held that the Act. of 1868 did not give a railroad corporation an arbitrary right to cross another railroad, regardless of the rights of the corporation injured, and the safety of the public; and that the intent of the Act of 1871 is to discourage grade crossings, involving danger to the public, as well as injury to the company, whose road is crossed. A decree was entered, prohibiting a crossing at grade. Just here we will supplement the decision of that case by saying that the time for grade crossings in this state has passed. They ought not to be permitted, except in case of imperious necessity. — 200 — They admittedly involve great danger to life and property. In the earlier period of railroads this danger was overlooked or, at least, disregarded. The desire of the people for this species of improvements, tended to close their eyes to the dangers involved. The traffic then upon railroads was comparatively light, and trains ran at long intervals. The rapid development of the country, the enormous growth in wealth, population and business, has materially changed the relations of railroads to the public and to each other. The result is that we now see railroad companies and municipalities spending enormous sums of money in correcting the defects of earlier railroad construction, and especially in avoiding grade crossings. We must, therefore, construe the Act of 1871 in accordance with our present surroundings. The appellee contends that it ought to be permitted to cross at grade, because its capital is only 1100,000, and to avoid such crossing, would require more money than its means will permit; and also, that it is a local road through a sparsely settled country, with but a limited amount of business and but few trains. In regard to the last objection, it is sufficient to say that it is our duty to anticipate the future. A railroad which is now of small importance, by the- changes and combinations constantly taking place between railroad companies, may at any time become an important, if not a trunk road. An evil of this description, when once fastened upon a railroad, becomes a fixture for all time. If it is to be avoided at all, it must be done now. The fact that the capital of the appellee is limited, is not a sufficient reason to justify a grade crossing. Otherwise, a railroad company without capital, or a sufficient capital to build it properly, would have higher-rights in this respect than a company with abundant means. A railroad company will not be permitted to interfere with the franchises of another railroad company, merely to avoid expense: Pennsylvania Railroad Company’s Appeal, 93 Pa. 150 ; Pittsburgh Junction Railroad Company’s Appeal, 122 Id. 531; Sherman Company’s Appeal, Id. 545. The evidence in the case abundantly shows that the appellee might have located its road upon a reasonably inexpensive and practicable route south of the appellant’s road. The cost of — 201 — the re-location of their road upon ‘ this route, involving the tearing up. and abandoning of a portion of track, already built, would cost about #20,000, according-to the finding of the master. It also appears that, if constructed upon this route, it would reach all the objective points, and get all the business that it would upon the line adopted. While the learned master heard the testimonjr upon this point, he held that it was irrelevant and immaterial, “ for the reason that the plaintiff, having, without caprice, and according to the best judgment, honestly selected, laid out and adopted its route, and graded the same, had a right to construct and operate its road upon the same, even if it did cross defendant’s . track at two places, because this was a right clearly given to it, by the several Acts of Assembly of Pennsylvania, to wit: the Acts of 10th of February, 1849, 4th of April, 1868, and 19th of June, 1871; also article 17, section 1, of the Constitution of Pennslyvania of 1874.” The master further finds: “ That it is not practicable for the plaintiff company, with its tracks to cross or pass over the defendant company’s tracks at the two proposed crossings, or at any other points either below grade or above grade, because of the steep grades of both of said roads at the points of the proposed crossing of David Tressler’s farm, and which would necessitate the expenditure of about #40,000, as is shown by the undisputed testimony in this case, which is almost one half of the authorized capital stock of this company.” If we concede that it is not practicable to construct an overhead crossing by reason of the heavy grade at this point, it does not help the appellee. The necessity to cross at grade was a necessity of its own creation. It might, and should have so located its road as to avoid crossings altogether. I doubt, if in the history of railroad engineering in this state, an instance can be found, of one road crossing another at grade, and by a loop re-crossing it at grade within four miles, when another reasonably practicable route was open for its location, which would have avoided crossings altogether. Such railroading as this is not to be encouraged. It would be well for railroad companies, when locating their road, so as to cross another railroad, to consider well the mode of crossing, and the possibility of other locations by means of which such crossings may be avoided. — 202 — The decree is reversed at the costs of the appellees, and it is now ordered that the Perry County Railroad Extension Company be perpetually enjoined against crossing the tracks of the Newport & Sherman’s Valley Railroad Company at grade, and that the plaintiff’s bill be dismissed with costs.