Mifflinville Bridge

Per Curiam, The settled policy of this state, legislative and judicial, is against the further increase of grade crossings. The act of June 19, 1871, gave the courts jurisdiction over crossings of one railroad by another at grade, and this court has more than once expressed its regret that the control did not extend to the crossing of a railroad and an ordinary highway. This control the act of June 7, 1901, has now given. Any grade crossing which thereafter comes before the court, comes with a heavy burden of proof upon it. Under the conceded facts the crossing involved in this controversy is a new grade crossing and as such is prohibited by the act of 1901. The fact that it is incidental to the relocation of an existing highway under the authority of the act of 1836 does not relieve it of the ban of the act of 1901. The language of section first of the latter act is that “ all crossings hereafter established ” shall be above or below grade. This is a crossing in a different place, and is, therefore, “ established ” after the date of the act. The command of section first is peremptory and universal except in the single instance specifically prescribed. The court of common pleas is authorized under section four to permit a grade crossing under certain conditions. But this jurisdiction must be exercised in the mode pointed out by the statute and is exclusive. There is no substitute for it, either in manner or form. The proceedings in the present case in the quarter sessions to authorize the bridge and the relocation of the old highway were wholly irrelevant. They were in a different court having no jurisdiction over this subject and the accidental fact that both courts were held by the same judge did not mingle or combine their separate jurisdictions. The discretion [428] of the common pleas under the statute can only be exercised in a direct proceeding for the purpose in the proper court. A technical objection to a review of the decree is based on the ground that the appellant in its answer asked that the petition be dismissed and that the prayer was granted. With the reasons given by the court in its opinion it is said we have no concern. This point is not free from difficulty. In an action at law the opinion of the court is not part of the record and the judgment is the only matter strictly reviewable. In a proceeding in equity the rule is otherwise, and the chancellor’s reasons are proper subject of consideration. The proceeding in the present case was unknown to the common law and the statute by committing it to the discretion of a judge who may proceed summarily in such manner as he thinks best, and by the latitude of powers with which it invests him, and in other ways, has assimilated it closely to a proceeding in equity. Whether, therefore, we might not take up the case as if upon an appeal in regard to an injunction is far from clear. But some questions have been raised as to the facts. It is said that the duties of the county commissioners end at the bridge and the railroad tracks are so far from it that the construction of the crossing will be the work of the township authorities who are not before us. Under these circumstances we have thought it best, without deciding the other question, to turn over the appellant to the more plastic and convenient remedy of a bill to enjoin the construction of the bridge in such- manner as will require the highway to cross the railroad at grade. This appeal is, therefore, dismissed without prejudice.