Heilman v. Lebanon & Annville Street Railway Co.

Opinion by Mr. Justice Williams, This is a reargument. The ease was originally heard in March, 1896, and is reported in 175 Pa. 188. We do not wish to be misunderstood as to the reason of the decision then made or the general principles applicable to this case. Street railway companies are not endowed with the right of eminent domain, because they do not need it. They are modern local conveniences, the location and construction of which are subject to the will of the public they are intended to serve. This will is expressed through the local authorities. Such companies cannot force themselves into neighborhoods where they are not wanted. When permission is given them to occupy a public street, they acquire thereby not an exclusive right upon its surface, but a right concurrent with that of the general public. Their cars are a substitute for the private carriage and the public omnibus. They must move them along their tracks upon the surface of the street to the grade of which they are required to conform. They have no right to grade or fill or in any manner interfere with the access to private property from the highway, or so to construct the road as to interfere with public travel, or disturb adjacent land owners. This company appears to have disregarded the rights of municipalities and of private individuals, and to have forgotten or misconceived its own character and the limitations upon its powers, but it had completed its track along its entire line, á distance of six miles or more, as early as December, 1891. It has been in continuous operation ever since. It has become an important means of transportation for the public along its line, and for the towns which it connects. The interruption of its traffic would inflict great inconvenience upon the public and great loss upon it. The general situation must now be considered, and we must take 629 into account the rights of the plaintiff and the nature and extent of the injury of which he complains, but we must not overlook the interest of the general public, or the consequences to the defendant company of the decree asked for. Equity does not enforce a strict legal right, regardless of consequences. It is said that an injunction is of. grace. This does not mean that a chancellor may grant or refuse an injunction as he pleases, but that his action is controlled by considerations of conscience. He does that which in good conscience he ought to do. The question in each case must depend upon the circumstances out of which it grows, and requires the exercise of judgment in determining the equities involved. We think the case was determined in this manner in the court below. We affirm the decree, because we are of the opinion that it was right under all the circumstances of the case: Heilman v. Lebanon & Annville Ry. Co., supra. We have listened to the very earnest oral argument for the appellants and have considered the case as now presented in the paper-books, but we see no reason to doubt the soundness of the conclusions reached when this case was here before, and accordingly make no modification of the decree then made. But this company has for nearly six years maintained its embankments along the plaintiff’s property without right. If permitted to retain them, the plaintiff should be amply compensated for the inconvenience and injury he has suffered and must hereafter suffer. And the court below should see to it that this is promptly done, under its order of December 31, 1895. The decree of this court made on April 27,1896, affirming the decree appealed from, is adhered to. The costs made upon this reargument, including the cost of printing by the plaintiff, to be paid by the defendant company.