Wilson Township v. Easton Transit Co.

Opinion by Mr. Justice Walling, This bill was filed to restrain defendant from relocating its railway in plaintiff township. The Easton, Palmer and Bethlehem Street Railway Company (now merged in the defendant company) was chartered in 1897, and in 1898 constructed and has since operated a street railway extending westerly from Easton through the adjoining township of Palmer and thence to Bethlehem. The township gave its written consent providing, inter alia, that the railway company, “may construct and maintain its railway upon private land and private rights of way along such portions of its charter route and along such portions of its extended changed and modified route where said railway company may deem it necessary and convenient to avoid sharp curves, steep grades, irregularities of surface, dangerous construction, dangerous crossings or damage to private property.” At the place here in question the railway was constructed on private property, along and immediately adjoining a public road, and intersecting the Easton and Northern Railroad by an over-grade [269] crossing. In 1913, that part of the township adjoining the city and extending west to the east line of a public highway, known as the “Glendon Road,” was duly constituted a township of the first class, under the name of “Wilson Township.” The railway as originally constructed was circuitous and the over-grade crossing unsightly and deemed unsafe. In 1914 defendant, to shorten and improve its line, took steps to reconstruct the same for a distance of about forty-five hundred feet, on a new right of way over private property and to the north of its former location, a part of the new right of way being in Wilson Township, but not there extending over or upon any public road; and to be so reconstructed as to cross the railroad by a subway or under-grade crossing, located four hundred and forty feet north of the old over-grade crossing. This improvement would be a great advantage to the defendant and the public, and to secure the same defendant sought and obtained from the Public Service Commission a certificate of public convenience, permitting the under-grade crossing, which is intended to carry the railroad over the Glendon Road and the street car tracks at the same point, the eastern approach of the latter being in Wilson Township. Before granting the certificate, the commission gave a full hearing to the parties in interest, at which plaintiff appeared and joined with all present in a stipulation stating, in effect, that it was desirable that the present over-grade crossing should be abolished, and that the proper point of crossing the railroad track was the place mentioned in the petition of the street railway company as above stated, and that the only question in controversy was the method of the proposed eastern approach. No appeal was taken from, the order of the commission, made May 4, 1916, granting the certificate; and defendant relying thereon expended over forty thousand dollars in the purchase of right of way and for material and work on said improvement, of which plaintiff had knowledge and made no objection until the filing of this bill, [270] August 17, 1916; and therein for the first time alleged that its consent for defendant’s improvement had not been granted. The court below awarded a preliminary injunction, but after a full hearing entered a decree dissolving the same, from which this appeal was taken. The opinion of the chancellor embraces requests of the respective parties for findings of law and facts, and answers thereto, and also his independent findings and discussion, and in substance treats the case as on final hearing. His conclusion was that plaintiff had waived its right to' successfully interpose the objection that the township had not formally given its consent to the relocation of the street railway. We agree with that conclusion. Plaintiff deliberately stipulated before the Public Service Commission that its only objection to defendant’s change of location was as to the method of constructing the eastern approach to the new subway. In that entire proceeding nothing was said about lack of municipal consent; and thereafter defendant was permitted to incur large expenditures on the faith of its right to make the improvement; now plaintiff’s belated attempt to prevent the completion of the work, to the damage of the defendant and the public, comes too late. The consent of a township is necessary to the construction of a street railway therein and was here given about twenty years ago. We deem it unnecessary to decide whether that consent would justify such a deviation from the original location as is now in question, for in our opinion plaintiff’s laches and the position taken before the Public Service Commission constitute such an implied assent to the new location as precludes the township from obtaining the aid of a court of equity to prevent it. In 16 Am. and Eng. Ency. of Law (2d Ed.), p. 356, the rule is stated thus: “A suitor who by laches has made it impossible for a court to .enjoin his adversary without inflicting great injury upon him will be left to pursue his ordinary legal remedy. This rule is especially applicable where the [271] object of tbe injunction is to restrain tbe completion or nse of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.” This is quoted with approval by present Chief Justice Brown in delivering the opinion of this court in Stewart Wire Company v. Lehigh Coal & Navigation Company, 203 Pa. 474, 478. Township officers, who have knowingly and without objection permitted a street rail- ' way to be constructed in their municipality, cannot compel its removal: Penna. R. R. Co. v. Montgomery County Pass. Ry., 167 Pa. 62; Maust v. Penna. & Maryland Street Ry. Co., 219 Pa. 568. Plaintiff, at the hearing before the Public Service Commission, having conceded the propriety of defendant’s change of location and stipulated that the only question was as to the method of construction of the approach to the subway, cannot in this proceeding set up its own alleged lack of consent to such change, especially after defendant has acted upon the faith of the position taken by plaintiff before the commission. One who has assumed a position in a legal proceeding, which has been acted upon by the .opposing party, may not thereafter in another proceeding assume a different position to the prejudice of such party: Clear Springs Water Co. v. Catasauqua Borough, 231 Pa. 290; Thomas v. Heger, 174 Pa. 345. We have followed the court below in considering this case as on final hearing; however, it would have been better practice had counsel filed with the chancellor a stipulation to that effect, so that a decree nisi might have been entered and the case disposed of by the court in banc. .The assignments of error are overruled and the decree is affirmed at the costs of appellant.