McHale v. Easton & Bethlehem Transit Co.

Opinion by Mr. Justice Green, We agree entirely with the learned court below in their disposition of this case. It is scarcely necessary to review in detail the considerations expressed in the very clear and satisfactory opinion filed. In substance the complaint of the plain [424] tiff is that his property is injuriously affected by the flowing, in times of storm, of water and gravel over the curbstone, the depth of which from the top to the surface of the gutter stone, has been reduced from six inches to two inches. This result it is alleged was accomplished by a slight elevation in the surface line of the street amounting, according to the averments of the bill, to one foot in the center of the street to four inches at the curb line. As the elevation in the center of the street is not alleged to be, and most probably,is not, in and of itself, a cause of any injury, it must be considered that whatever injury is sustained by the plaintiff results from an insufficient depth of the gutter in front of his property. But the city in its corporate capacity has the supreme control over the streets, pavements, alleys and passages of all kinds, and determines in the exercise of its function's, everything in connection with their grading, paving and condition according to its best judgment. If it chooses to grade its streets so as to leave only a two inch depth of gutter instead of six, we see no reason why it may not do so without being subject to any control of the courts. While it may well be that for any arbitrary or unreasonable arrangement of its grades which works injury to the property of an abutting owner, it may be responsible in damages for the injury, we cannot understand how the courts can take away from the city by a mandatory injunction, its right exclusively to establish the street grades. In the present case the change is alleged to have been made by the transit company, acting under an ordinance of the city councils granting permission to construct a passenger railway over certain named streets, upon certain conditions, one of which was the widening of Dock street by the company to a uniform width of twenty-four feet. One of the ordinances to which the Transit Company became subject in the laying of its track, provided that the surface of the rails when laid must be kept on a level with “ the present established grades, or such grades as may hereafter be established for the streets on which said tracks are now located or may hereafter be located.” And the bill also alleges that the same ordinance provides that, “ whenever in the construction or reconstruction of its roadbeds or tracks it may be necessary to change the contour and cross sections of the streets to accommodate said tracks to existing gradients [425] and regulations, all expense thus entailed shall be borne by the said railway compaiy', and the work shall be done under the supervision of the department of highways.” Now the fourth clause of the bill alleges that the Transit Company by virtue of the said ordinances began to lay their tracks in front of the plaintiff’s lot, and that in doing so they changed the grade of the street by raising it one foot in the center and four inches at the curb, and thereby caused the flowage of water and other substances as complained of, but there is no allegation that this was done without the consent of the city, or that it was not done under the supervision of the department of highways. If, as the first part of the fourth clause alleges, the work was done, “under and by virtue” of the ordinances, the necessary inference is, in the absence of a contrary allegation, that it was done in the way permitted by the ordinances, that is, under the supervision of the department of highways. This inference is very much strengthened by the fact that the city of Easton is not complaining of any violation of the ordinances, and in fact is a defendant in this bill, and a decree is asked that the city shall be ordered to maintain the grade, “according to legal enacted ordinances.” Now an averment that the change of grade was made b}r virtue of the ordinances, and the only allegation of any violation of the ordinances being that the grade was slightly raised when such a change is permitted by the ordinances, is not a sufficiently specific allegation of any wrongful act to warrant a court of equity in interfering by the extreme process of injunction. There should certainly be an allegation that the work was not done under the supervision of the department of highways, as that element would be necessary to make the work illegal, and contrary to the ordinances. There is nothing of this kind in the bill. We think there is no merit in the second and fifth specifications of error. Decree affirmed and appeal dismissed at the cost of the appellant.