Philadelphia v. Citizens Passenger Ry. Co.

Opinion by Mb. Justice Stebbett, It is contended that the learned court erred in holding: 1st. “ That the appellant corporation was not authorized to lay any track on Germantown avenue.” 2d. “ That the consent of the councils had not been given to appellant for the construction of the extension authorized by the act of March 22, 1865.” The facts of the case, in connection with the acts of assembly and ordinances of councils, relating to the questions in [135] volved in these specifications of error, are so fully presented in the clear and comprehensive opinion of the court below that extended reference to either is unnecessary. It was clearly incumbent on the company to show its authority from the commonwealth to occupy Germantown avenue, either for the purpose of extending its road thereon or making a connection between its tracks on Tenth and Eleventh streets. If that authority was not given, either in express terms or by necessary implication, the injunction restraining the “ company from laying any tracks on, along and upon Germantown avenue, from its junction with Tenth street north to Indiana street,” etc., was rightly awarded. The act of March 25, 1858, P. L. 166, incorporating the company to construct a passenger railway on Tenth and Eleventh streets, etc., to Columbia avenue on the north, required, among other things, “ that before the company shall use and occupy the said streets, the consent of councils .... shall be first obtained; and said consent shall be taken and deemed to have been given if said councils shall not within thirty days after the passage of this act, by ordinances duly passed, signify their disapptfoval thereof; and the said councils may, from time to time, by ordinance, establish such regulations in regard to said railway as may be required for the paving, repaving, grading, culverting and the laying of gas and water pipes in and along said streets, and to prevent obstructions thereon.” By the first section of an ordinance, duly passed within the time specified, councils declared their disapproval of said act; but, in the second section thereof, it was provided that if the company shall, within ninety days and before using or occupying any of said streets, file in the office of the city solicitor a written obligation binding the company to observe and be subject to all ordinances of the city in relation to passenger railways then in force or at any time thereafter to be passed, “ then the provisions of the first section of this ordinance shall be of no effect.” The obligation thus required was accordingly filed and the company proceeded to construct its road. The ordinances to which appellant thereby became subject and bound itself to obey, require passenger railway companies, among other things, to conform to established street grades; to sub* [136] mit all plans, courses, and styles of rails to the board of surveyors for approval; to lay flag stones at crossings or intervals of two hundred and fifty feet; to pave, repair and repave the streets occupied by them; to keep said streets clear of snow; to run their cars at a safe rate of speed; to pay license for each car run on the road, etc. In the same connection, the learned judge of the common pleas referred to ordinances of February 28, 1860, and May 7,1869, prohibiting the department of highways from granting any permit to remove pavement for the purpose of laying passenger railway tracks, and prohibiting city surveyors from locating any such track until the consent of councils to the construction of the road has been given. As we have already seen, the northern limit of appellant’s right of way under its original charter is Columbia avenue. By act of April 11, 1863, P. L. 319, the company was authorized to extend its tracks to Montgomery street and connect them by a track on said street. Afterwards by act of March 22, 1865, P. L. 568, it was further authorized, whenever and at such times as the public convenience may require, to extend its “road northwardly, on Tenth and Eleventh streets, between Montgomery street and Germantown road, with the right to connect the same or any street between these two points, subject to all the limitations and restrictions, and with all the privileges granted to the said company under its act of incorporation. In pursuance of these acts the road was extended northwardly on Tenth and Eleventh streets to Cumberland street and there connected by a track laid on said last mentioned street. It was still further extended on Eleventh street, with a single track and turn-outs, to Cambria street, four squares north of Cumberland street. ■ Waiving for the present, and for argument sake merely, any question as to the consent of councils, or the necessity for such consent, that extension appears to be in accordance with the provisions of said acts; but, it is claimed by appellant that the act of 1865 authorizes the further extension of its Tenth street line, northerly, on Germantown avenue to Indiana street; also the extension of its Eleventh street line to same street, and á connection, between the thus extended lines, by a track on said Indiana street. The answer to this contention is, that no authority can be found in said act, or elsewhere, to locate any [137] part of its road on Germantown avenue. As defined by the very words of the act above quoted, the authority to extend, northerly, on Tenth and Eleventh streets, is expressly limited to the portions of said streets, respectively, lying “between Montgomery street and Germantown road; ” that is to say, between the north line of the former and the southerly line of the latter. The northerly limit of the grant is the southerly line of said road, and that necessarily precludes the right to enter upon and occupy any part of said road. The word “ between ” indicates an intermediate space, which excludes and cannot include that to which it refers; in this case the street and the road. If land be granted between one township and another, both are clearly excluded from the grant. If land, described as lying between lot number one and lot number three, is conveyed, it cannot be pretended that either lot or any part thereof passes by the deed: 2 Am. & Eng. Enc. of Law, 186. The word under consideration is sometimes used in a different sense, but it is too plain for argument that, in the act in question, it was employed in its primary and general signification above stated. If it had been the legislative intention to include the Germantown road, or any part thereof, in the grant, it would have been an easy matter to clearly express it, and doubtless it would have been so done. To hold as contended for by appellant would require us to ignore the sound and well settled principle that, in construing grants of power to such corporations, whatever is not given in clear and express terms or by necessary implication, is conclusively considered to have been withheld. There appears to be a growing disposition on the part of some classes of corporations to reverse the principle and arrogate to themselves the right to do anything that is not prohibited by their charters. No such tendency should be encouraged. For these and other reasons fully elaborated in the opinion of the court below we think there was no error in ruling as complained of in the first specification. The learned court was also right in holding that the consent of city councils has never been given to appellant to construct and operate the extension authorized by the act of March 22, 1865. The company’s agreement with the city, binding it to obtain the consent of councils to all future extensions of its [138] road, as required by tbe ordinances of February 28, 1860, and May 7, 1869, is undoubtedly in force and does not appear to have been complied with. Decree affirmed and appeal dismissed with costs to be paid by appellant.