Beaver Borough v. Beaver Valley Railroad

Opinion by Mr. Justice Stewart, The Beaver Valley Railroad Company, organized under the Act of April 4, 1868, P. L. 62 and its several supplements, in the exercise of its corporate rights and privileges, constructed, and has been operating for several years past, a line of railroad in the county of Beaver, between three and four miles in length, connecting the Pittsburg and Lake Erie Railroad with the Cleveland and Pittsburg Railroad. With respect to the termini of the road, the borough of Beaver is intermediate. By and with the consent of the municipal authorities, expressed in an ordinance passed September 15, 1899, the railroad company constructed its main track upon Fifth street in the borough of Beaver longitudinally for a distance of 4,368 feet. In the early part of the present year the company, for greater convenience in receipt and delivery of freight at that point, began the construction of a switch and siding, from its main line on said Fifth street, to the warehouse and yards of Cook & Anderson, situate on the south side of said street. Thereupon the borough of Beaver filed its bill alleging that the company, in attempting to construct such siding, was acting without authority of laiv, and praying that it be restrained. The appeal is from the decree dismissing' the bill after final hearing. The question so earnestly pressed upon our attention in the argument, as to the right of the railroad company under its charter to construct and 'maintain a track upon the public street, even with municipal consent, is not raised by any assignment of error; nor could it bo. Since it was not brought to the attention of the court below, the settled rules of practice forbid its consideration hero. An exception cannot be urged in the appellate court on different grounds than those taken in the court below. The right of the railroad company to maintain its tracks on Fifth street was conceded in the court below, and for present purposes must be conceded here. The only question then before us is, has the company the right to construct the proposed switch and siding from its established main line upon the public street for the purpose indicated? The 13th finding of fact by the court below was as follows: “ If said switch is laid at grade from the main line of defendant’s railroad to the property of Cook & Anderson, as proposed by [286] the defendant company, and averred in its. answer, it will not be an unreasonable obstruction to public travel along said Fifth street.” No attempt was made to controvert this finding. In view of the fact that Fifth street is 100 feet wide this is not surprising. This is not then the case of a railroad company attempting, for its own convenience, and under no compelling condition, to appropriate with the consent of the borough, an entire street, thereby diverting it from its original use and purpose, and defeating public enjoyment of the same. The use of the switch and siding would be consistent with the continued use of the street as a public thoroughfare. Under such circumstances the right of the company in the premises is not open to question. The right to build the switch and siding is included as a necessary incident in the right to build a railroad. So much we have repeatedly asserted. In Cleveland and Pittsburg R. R. Company v. Speer, 56 Pa. 325, we said that even where there is no expressed power in the charter to construct switches, it is clearly to be inferred from the general power conferred, and the essential purposes of the grant. In Getz’s Appeal, 10 W. N. C. 453, and in a number of other cases, we have said the same thing. To what extent this right may be exercised where the continued maintenance of the street as a public thoroughfare is involved, is a question not raised in this proceeding. It is enough to know that in the present case no such interference is contemplated or would result. The appeal is dismissed at the costs of the appellants. Mitchell, C. J., Brown and Mestrezat, JJ., dissent.