Dryden v. Pittsburg, Virginia & Charleston Railway Co.

Opinion by Mr. Justice Dean, Little need be said in vindication of this decree in addition to what has been so concisely expressed by the learned court below. Whether the act of 1869 be pronounced a supplement to the act of 1849, or it be an independent act having no necessary connection with the first, the interpretation of it must be the same, that is, it must be given its true intent and meaning in view of the circumstances which prompted its enactment. There is nothing in it which is repugnant to the provisions of the first act, nor are any provisions of the first act neutralized by those of the later one. The later act provides specifically, for the exercise of the power of eminent domain at a time subsequent to the exercise of that power by the company in locating its line; it was passed to accomplish a different purpose, that is, widening a roadbed already located; it is an enabling act intended to reach a situation not contemplated by the first. When we take into view the “ old law, the mischief and the remedy ” the purpose of the language of both acts becomes clear; the one is not out of harmony with the other. By the act of 1849, “ The president and directors of such company shall have power and authority . . . . to survey . . . . and determine such route for a railroad as they may deem expedient ; ” but broad as is the power, there is, nevertheless, a plain restriction, “ not however passing through .... any [321] dwelling house in the occupancy of the owner or owners thereof without his or their consent.” Here full power for the original location of the route of the railroad is conferred, fettered, however, by a disabling restriction as to a dwelling house in the actual occupancy of the owner. Nevertheless this restriction, when it comes to the selection of the first route of the railroad, is not necessarily an insuperable obstacle to location; the company is not compelled to locate its roadbed on any particular line; it could in most cases, and especially in that early day, avoid a dwelling house by adopting a more costly line which did not touch it. It may be doubted whether if the exigencies and necessities of the future had then been foreseen as they are now hmown, the legislature would, fifty years ago, have imposed even such a restriction. A restriction of this kind does hamper, and does in many cases obstruct great public improvements: improvements not projected and constructed for the benefit alone of the corporation, or of any particular locality, but for the advantage of the whole commonwealth. And when damage is done an individual for the benefit of the public, full compensation is provided for. But whether a restriction imposed more than half a century ago be at this day reasonable or unreasonable, is not the question before us ; it is the law of the land and must, in the location and adoption of a route be observed. For twenty years there was no relaxation or modification of this restriction. During that period railroads were empowered to appropriate a width of not exceeding sixty feet for their roadbed; some took more and some less; it has however been held that a clearly defined exercise of the power of appropriation exhausted the power. Whether the taking had been of a strip as wide as authorized or narrower, in a very few years railroad companies discovered that the mere opening and operation of their lines so stimulated and increased business, traffic and travel, that population pressed them on each side of their lines; many kinds of business got as close to the roadbed as possible; even the noise and discomfort to occupants of dwelling houses was not sufficient to deter them in many cases from building and living close to the railroad. In the meantime the business of the railroads had enormously expanded; they wanted more room; in many cases it was impossible for them to perform tire duties [322] enjoined upon them by law and which by their charters they were bound to perform without increase of trackage ; the public suffered as well as they; they had exhausted their power of location by their original taking; the land on each side had been improved by the erection of dwelling houses and other improvements close up to their roadbed; they could not move their main line, and if they could have done so, they would have been met by practically the same obstacles on a new route. Yet the public demands for transportation facilities had to be met. Such were the facts which in 1869 prompted the passage of that act. It was a necessity, which necessity has since become far more imperative. The act of 1869 reads as follows: “ That it shall and may be lawful for any railroad companies now or hereafter incorporated, . ... to widen, deepen, enlarge or otherwise improve the whole or portions of their line of railroad .... whenever in the opinion of the board of directors of any such company the same may be necessary for the better securing the safety of persons and property, and increasing the facilities and capacity for the transportation of traffic thereon, and for such purpose to purchase, hold and use or enter upon, take and appropriate land and materials.” By its express terms this act conferred upon railroad companies an authority which they did not theretofore have ; it restricted no road, whether its original taking was sixty feet, or less, to its first appropriation; it could widen and otherwise improve its line whenever in the opinion of its board of directors such widening was necessary. To give the act any other meaning, would in view of the facts defeat its main purpose. Any house owner could effectually put a stop to any attempt of the company to provide for the safety of persons and property or to furnish increased facilities for transportation. There is not a word in the act which manifests an intention to limit the power as in the tenth section of the act of 1849, nor has it ever been so interpreted by this court. And this is the rule of interpretation to be adopted under such circumstances. Judge Endlich in his valuable work on the Interpretation of Statutes, sec. 28, says : “ As regards the history or external circumstances which led to the enactment (of the statute), the general rule which is applicable to the [323] construction of all other documents is equally applicable to statutes, viz : that the interpreter should so far put himself in the position of those whose words he is interpreting as to be able to see what those words relate to.” We must place ourselves in the situation of the legislature of 1869 ; at that time with the necessity before them which the experience of twenty years had demonstrated, with the palpable fact that such a restriction as that in the act of 1849 would defeat the very purpose they had in view, they passed the act of 1869, which has in it not a word indicating an intent to exclude a dwelling house in the taking of land for widening. Yet in the year preceding, in the act of 1868, they had carefully preserved the restrictions as to taking for an original location by saying, “ Subject to all the restrictions and liabilities of the act ” of 1849. Treat the act of 1869 as a supplement to that of 1849, it does not follow that we must import into the later statute the dwelling house restriction of the first act. Taking into view the twenty years’ interval between the two statutes, the suggestive facts made obvious by experience, the significant absence of any words pointing to restriction, it seems clear that the intention is to confer a power to widen without restriction. “ Courts will look into the occasion for the passage of such a statute (a remedial one) and consider the evils it seeks to remedy, their nature and extent to determine how far it was to reach: ” 1 Kent, 455: Stewart v. Kahn, 11 Wall. 493; Gyger’s Estate, 65 Pa. 311. And this is the purport of our decision in Bigler v. Penna. Canal Co., 177 Pa. 28. The argument that the extent of the right to take is indefinite because not limited to a specific width cannot be sustained. The power to take for purpose of widening is confined to a taking for that purpose alone. Any attempt to appropriate for some other purpose or in excess of what was necessary for that purpose would not be within the act; in this particular it is as definite as the act of 1849, which limits the width to sixty feet except in the neighborhood of deep cuttings or high embankments. It follows that in such cases the width is only limited by as much more as is necessary for proper construction. We think the interpretation put upon the act by the court [324] below is correct and the decree is affirmed at costs of appellant. .