Snee v. West Side Belt Railroad

Opinion by Mb. Justice Potteb, The defendant company is incorporated under the general railroad laws of Pennsylvania, and its authority to take land for its right of way is, therefore, prima facie, limited to a strip sixty feet in width. This limitation prevails except in the neighborhood of deep cuttings, or high embankments, or places selected for sidings, turnouts, depots, engine or water stations. No necessity for extra width, arising under any of the specified exceptions, has been shown in this case. But in crossing plaintiff’s land, the line of the railroad crossed Peters creek twice within a distance of about 460 feet. This would involve the construction of two bridges, and rather than build the bridges, the defendant company sought to divert the [483] waters of Peters creek from their original channel, by building a solid embankment, which would cut off the bend in the creek and send the water along the line of the railroad until it met the old channel. To provide for the flow of the waters in the new location the defendant company proposed to take an additional portion of the plaintiff’s land, outside of the right of way. Counsel for appellant contend that the grant of power in section 10, of the Act of February 19, 1849, P. L. 79 “to enter upon all land on which the said railroad or depots, warehouses, offices, toll houses, engines and water stations, other buildings or appurtenances, hereinbefore mentioned, may be located, or which may be necessary or convenient for the erection of the same, or for any purpose necessary or useful in the construction, maintenance or repairs of said railroad, and therein and thereon to dig .... and construct the same,” confers the right to take any land, for any purpose necessary or useful in the construction, maintenance or repairs of said railroad. This is a very bold claim, and one which is without any justification in the terms of the act. It ignores the express limitation of the width of the right of way except in the specified exceptions. The entry upon land is limited to such land as the railroad was entitled to include in its right of way, and this in so far as the main roadbed is concerned is not to exceed sixty feet in width. To adopt the construction contended for by the appellant would practically nullify the limitation of the width of the right of way. The learned judge of the court of common pleas has found that there is no impelling necessity in this case for changing the channel of the creek, and for that purpose taking additional, land. It is a mere matter of convenience or, at most, of economy. This is not enough. As we held in Penna. R. R. Co.’s Appeal, 93 Pa. 150, there can be no implication in favor of the right of eminent domain “ unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of tilings, over which the corporation has no control; it must not be a necessity created by the company itself, for its own convenience or for the sake of economy.” See also upon this point, Woods v. Greensboro Natural Gas Co., 204 Pa. 606, and the cases there cited. The trial judge [484] has found as a fact that “ while the construction of the embankments is desired by railroad engineers in preference to bridges, the latter at this point are practicable and could be constructed so as to be both safe and serviceable,” and this finding is amply supported by the testimony. In stating his conclusions of law, the court below said: “ While a railroad company in the construction of its road has not generally the right to divert the natural flow of waters of the stream, yet there may be cases when that may be done. If a company should find it impracticable to carry out the purpose of its incorporation without changing the channel of the stream in constructing its road, perhaps upon those circumstances being made to appear private interest would be required to yield to the interests of the public. We, however, have no such a case before us.” We think the conclusion thus stated is fully sustained by the authorities. See Angell on Water Courses, sec. 465b; Gould on Waters, page 522; Lewis on Eminent Domain, sec. 571. The assignments of error are overruled. The decree of the court below is affirmed, and this appeal is dismissed at the cost of the appellant.