Maust v. Pennsylvania & Maryland Street Railway Co.

Opinion by Mr. Justice Elkin, Maust, the appellant, an abutting property owner, has filed this bill to enjoin the defendant company from laying down or placing ties and rails or constructing its track upon the township road running through his farm. After a full hearing the preliminary injunction was dissolved, and a decree entered dismissing the bill. The learned court below based its decree upon the ground that appellant by words and deeds, not in express language or specific acts, but in effect, consented to the grading of the line and the laying of the track over the public highway and through the abutting lands of appellant. It is further held that appellant was guilty of laches under all the circumstances of the case, and could not in good conscience ask a court of equity to protect him in the enjoyment of a legal right when he himself had consented to, or acquiesced in, the construction of the line of street railway over the highway through his property. It is true no consent [572] in writing, or in express words, was given, and there is a conflict of testimony as to what was said and done by appellant when the agents or representatives of the appellee company made the survey, and subsequently came upon his lands to grade and construct the line. As to findings of fact we are confronted with the rule that they come before this tribunal with the force and effect of the verdict of a jury, and will not be disturbed unless for manifest error. Under the settled rule it is not sufficient to say that if the testimony had been before us in the first instance we might have found differently: Plankington’s Estate, 212 Pa. 235. The learned court below saw the witnesses, heard their testimony, observed their manner, was familiar with the whole situation and the circumstances which surrounded it, and was in better position to correctly ascertain and determine the facts than we are. This court would not be justified in reversing a finding of fact unless there was clear error: Lazarus’s Estate, 142 Pa. 104. In this connection the testimony of "Wright, an assistant manager, cannot be overlooked. He testified that when the survey was being made, while appellant and the general manager were looking over the proposed route, Maust said : “ I know where you want to go and go ahead, and I will see you in a few days.” This testimony is substantially corroborated by two other witnesses and by other circumstances in the case, and in our opinion is sufficient to justify the findings of the court below on this question. Again it must not be overlooked, that appellant has come into a court of equity to seek its aid by injunction, which is of grace and not of right. The prayer in every such bill is to the conscience of a chancellor. As a general rule relief will not be granted where the benefit to the complainant is entirely disproportionate to the injury complained of, Becker v. Street Railway Company, 188 Pa. 484; or where there is an adequate remedy at law or where the party seeking redress has placed himself in such a position that to grant his request would work an injustice to the other party whom he has led to believe could do the particular thing which he now undertakes to restrain. An injunction will not be issued when upon a broad consideration of the situation of all the parties in interest, good conscience does not require it: Messner v. Railway [573] Co., 13 Pa. Superior Ct. 129. Where street railway companies have been permitted to proceed in the construction of their lines over highways by abutting property owners, or township officers, and large sums of money have been expended thereon, it, would be inequitable and unjust to compel the lines to be torn up or their operation enjoined at the instance of a party who either gave his written or oral consent, or who stood by and said nothing, while the work of construction was going on and the expenditures were being made. On this question see Pennsylvania Railroad Company v. Montgomery County Passenger Railway Company, 167 Pa. 62. These companies are local modern conveniences and their extension through rural communities in recent years has been of great benefit to the public generally, and to abutting property owners in particular. The interest of the public must be taken into consideration by a chancellor when passing upon the equities and legal rights of the parties involved in the controversy: Heilman v. Street Railway Company, 175 Pa. 188. Of course, street railway companies, like all other corporations, only possess such privileges and powers as are conferred upon them by the acts of assembly under which they are incorporated. They are required to assert their charter rights in an orderly and lawful manner. They cannot violently take possession of public highways or private property and appropriate either or both to their corporate use. They should always secure the consent of township officers and private landowners in advance of the work of construction. If, however, an abutting landowner says to an agent in charge of construction, or of the survey, “You go ahead and construct your lines, I will see you later,” or by other words and deeds consents to such construction over his lands, or if he sits by while the grading is being done and track laid, saying nothing, and by his acquiescence leads the company to believe that he has given his consent, he will not be permitted after all this work has been done and expenditures incurred, to come into a court of equity and secure through its processes the enforcement of a supposed legal right. In such a case he will be remitted to an action at law for the recovery of such damages as he may have sustained. Decree affirmed at cost of appellant.