City of Chester v. Baltimore & Ohio Railroad

Opinion by Mr. Justice Potter, The appellant here complains of the court below, that it [404] has, by means of a preliminary injunction, prevented the defendant company from elevating its tracks at the crossings of several streets without the consent of the municipal authorities of the city of Chester. The action of the court below in this matter was fully justified by the principles laid down in Pittsburg v. Pittsburg, etc., Railroad Company, 205 Pa. 13, holding that in this commonwealth, a railroad company has no power to enter upon, occupy, or cross the streets of a municipality without the consent of the municipality. If a railroad cannot be originally constructed upon or across a city street without municipal consent, it necessarily follows that, after it has once been constructed, in a form and manner approved by the municipal authorities, before any material change can be made in the construction of the road, the municipal consent must be obtained for the desired change. An elevation of the grade would certainly be a material change. The conclusion that municipal consent must be obtained before making any such change is not only reasonable in itself, but it has legislative sanction. The Act of May 31, 1887, P. L. 275, provides that railroad companies whose route extends through or into any city of this commonwealth, may elevate or depress their tracks within the limits of such city, provided that the consent of said city through councils, to such elevation or depression, be first had or obtained. There is no merit in the contention of appellant. The assignment of error is overruled, and this appeal is dismissed at the cost of appellant.