North Penna. R. R. v. Inland Traction Co.

Opinion by Mb. Justice Bbown, Part of the route of the Philadelphia and Lehigh Valley Traction Company, the real appellee, is on the Chestnut Hill [587] and Springhouse Turnpike Road. The North Pennsylvania Railroad Company is the owner in fee of several pieces of land abutting on the east side of the said turnpike road and owns the land where its railroad crosses the turnpike, which was built and in operation long before the construction of the railroad crossing it. At the point of crossing the railroad runs through a deep cut, over which there is a bridge, erected by the railroad company as a part of the turnpike for the accommodation of travel. This bill was filed by the appellants, as owner and lessee respectively of the land at the bridge crossing and of the lots abutting on the turnpike, to enjoin the construction of the electric passenger railway on it. The traction company did not propose to construct its road on the east side of the turnpike, on which the lots of the North Pennsylvania Railroad Company abut, but on the west side, beyond the middle of the way, and had obtained the consent of the owners of the fee on that side to do so. Except where the railroad crosses the turnpike, its fee extends no further than to the center of the road. Though the appellees are styled traction companies the court below regarded them as street railway companies in determining the questions before it, and, on this appeal, the appellants so treat them. Their charters are not before us, but it is conceded by counsel for appellants that whatever rights and franchises they possess were conferred by the general street railway act of May 14, 1889, P. L. 211. It may be, as can fairly be gathered from the ninth paragraph of the answer of the defendants, that the rights and franchises which they are exercising were originally conferred upon a street railway company or companies and passed to them as their successors. Be this as it may, we must, under the circumstances, regard the appellees as possessing and undertaking to exercise the rights and franchises of a street railway company. By section 17 of the Act of May 14, 1889, it is provided that “ any passenger railway company incorporated under this act shall have, and is hereby granted, power by its officers and servants to ascertain and define such route as they may deem expedient, over, upon and along any turnpike or turnpikes, not however exceeding sufficient width for two tracks to be laid down on, over and along such turnpike or turnpikes, and thereupon, on, over and along such turnpike or turnpikes, to [588] lay down, construct and establish a track or trades for its use in the transaction of its business, and thereupon to use the same in its general business: Provided, That before such passenger railway company shall enter upon and use any such turnpike or turnpikes in the laying of tracks and use of the same, it shall make compensation to the owner or owners thereof for such occupation and use of said turnpike or turnpikes, in the mode provided in section fourteen thereof.” The right to occupy the turnpike having been given to the appellee the compensation to which the turnpike company was entitled was evidently amicably adjusted, for the finding of the learned court was that the turnpike company had consented to the construction of the passenger railway on its road. But, as it is settled by Pennsylvania R. R. Co. v. Montgomery Co. Pass. Ry. Co., 167 Pa. 62, and Penna. R. R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559, that the laying of railway tracks on a country road is an additional servitude on the fee which cannot be imposed upon it against the will of the owner of the land, the appellants insist that the same rule should protect them as owners of land abutting on a turnpike, which is occupied by a street railway company with its tracks. Assuming this to be true, the answer is that the statute gives the appellee the right to occupy the turnpike, and, in occupying it, the property of the appellants has not been affected. There is no evidence of any obstruction to plaintiff’s ingress and egress to and from their property, or of the slightest interference with their enjoyment of it. No additional servitude has been imposed upon their land, which extends only to the middle of the highway. The route of the appellee along the turnpike is over the lands of others, who have consented to its location there. In the case of the occupation of a township road, maintained by supervisors, the rule goes no further than that while an injunction, if applied for in time, will issue at the instance of an abutting owner, to protect his own land from an additional burden on it, it is none of his concern that his neighbors on the opposite side of the road consent to the use of their lands ,by a passenger railway company, so long, as, from such use, no injury results to him. The protection by injunction to which each landowner is entitled is confined to his own property. [589] Though, the appellants are landowners on each side of the turnpike where their railway crosses it, they are not at that point abutting landowners, having a right to complain of the appellee’s imposition of an additional servitude upon their land. The crossing of the turnpike by their tracks made the bridging of a deep cut necessary, and the bridge became a part of the highway, but the railroad company is not, at that crossing, “ an abutting landowner to the passenger railway, as the plaintiff was in Penna. R. R. Co. v. Montgomery Co. Pass. Ry. Co., supra; ” Penna. R. R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559. In view of the expressed readiness and willingness of the appellee “ to so reconstruct and strengthen the said bridge, as that it shall be amply safe for the transportation and carriage of the traffic of the respondent and its cars over and across the same,” the only objection that the appellants could make to the use of the turnpike at that point disappears. Under his findings of fact, the learned judge below properly concluded that the defendants were “ lawfully engaged in the construction of their road.” Even if they were not, the Act of June 19, 1871, P. L. 1360, is not intended for such a case as the appellants present, and cannot be invoked by them, for none of their rights or franchises are injured or invaded. The decree can well be affirmed upon the learned court’s second conclusion of law: “ Plaintiffs have no standing to object, as no part of their property is taken or encroached upon. Their ownership of the fee extends only to the middle of the turnpike, and defendants have the consent of the owners of the land on the opposite side, and also the township authorities, and of the turnpike company, which gives them the rights claimed.” Appeal dismissed and decree affirmed at appellants’ costs.