Saylor v. Pennsylvania Canal Co.

Opinion by Mr. Justice McCollum, It was held in Buck Mountain Coal Company v. The Lehigh Coal and Navigation Company, 50 Pa. 91, that a bill in equity to enforce the performance of public duties by a corporation cannot be maintained by a private party in the absence of a special right or authority. Thompson, J., in delivering the opinion of the court said: “ There are many authorities in England and in this country which deny the right of private parties, in their own names — in the absence of special laws — when their interests are only in common with the public, to compel the performance of a duty to the public. The reason is that if one individual may interpose, any other may, and as the decision in one individual case would be no bar to any other, there would be no end to litigation and strife. The general laws of order, so necessary to good government, forbid anything like this.” It follows from the decision in the ease cited that the plaintiff in the case under consideration cannot maintain an action to compel the'performance by the Pennsylvania Canal Company of the duty imposed by the Act of May 16,1857, P. L. 519. The commonwealth may compel it, but a private citizen cannot. The learned counsel for the plaintiff concedes this much, but contends that a party who is injured by the company’s neglect to perform it may have an action for damages. The duty of the defendant company undoubtedly was to keep the canal open and in repair as a public highway, “ for the use and enjoyment of all parties desiring to use and enjoy the same.” That portion of the Juniata division of the canal to which the contention of the plaintiff relates was virtually destroyed by the flood of 1889. It has not been navigable since, and the company has made no effort to reconstruct it. It extends from the Millers173 town dam to the Newton Hamilton dam, a distance of fifty-four miles. No claim is made that prior to the flood referred to the company was remiss in the performance of its duty to keep this canal in repair. It was not therefore responsible for injuries occasioned by the flood: Penna. Railroad Company v. Patterson, 73 Pa. 491, and Penna. Canal Company v. Burd, 90 Pa. 281. The plaintiff’s boat was not destroyed or injured by the flood or by the failure of the defendant company to reconstruct the canal between the points above mentioned. He could not after the flood, use his boat for the transportation of goods and passengers between these points, nor could any other lessee or owner of a boat use his for a like purpose. The business in which the plaintiff was engaged was open to all persons using or desiring to use the canal for the purpose for which it was constructed. The privilege he exercised and enjoyed was not special or peculiar, nor was the injury he alleges lie sustained by the neglect or failure of the company to repair or reconstruct the highway it was required as a purchaser to maintain. The privilege was such as any person who chose to exercise it wa» entitled to, and the injury done by the abandonment of the highway was not to the plaintiff alone but to him in common vith the public. The difference, if any, was only in degree, and t'ais will not sustain his suit. The eases cited by the plaintiff from our own reports are plainly distinguishable in their facts from the case under consideration, and are not applicable to it, as an examination of them will clearly show. It follows from what has been said that the learned court below did not err in directing a verdict for the defendant. Judgment affirmed.