Scranton & Pittston Traction Co. v. President of the Delaware & Hudson Canal Co.

Opinion by Reeder, J., These two cases were heard and disposed of together and were so argued before this court upon appeal. The primary question for our consideration is whether the — 412 — traction company has a legal right to lay its tracks upon a public township road ? The act of 23d of May, 1878, P. L. Ill, provided for the construction, maintaining and operating of street railways. The 16th section declares that “ no street passenger railway shall be constructed within the limits of any city, borough, or township without the consent of the local authorities.” No power of eminent domain was conferred on these companies, but the provisions of this act seem clearly to indicate that their tracks were to be laid upon the public streets or roads; and were to conform to the established grade. The 16th section of the act indicates that the act was not simply intended to authorize the construction of street railways in cities, for it provides that any construction of a street railway in any “ city, borough, or township” must be by the consent of the local authorities. The act of the 14th of May, 1889, authorized street railway companies to construct and maintain a street railway on any street or highway upon which no track had been laid or authorized to be laid. The Scranton & Pittston Traction Company was incorporated under the act of March 22, 1887. They leased the Lackawanna Street Railway Company which was incorporated under the act of May 14, 1889. The points in dispute are included in the construction authorized by the charter of the Lackawanna Street Railway Company. The 18th section of the act of 1889 provides, “Any company incorporated under the provisions of this act shall have the right in its construction to cross at grade diagonally or transversely any railroad operated by steam or otherwise now or hereafter built.” The 15th section provides that “ no passenger railway shall be constructed by any company incorporated under this act within the limits of any city, borough or township without the consent of the local authorities thereof.” In the case of Pennsylvania Railway Company v. Montgomery County Passenger Railway Company, 167 Pa. 62, the Supreme Court says: “ The land taken for streets in cities and boroughs is in the exclusive possession of the municipality which may use the footway as well as the cartway for any urban-servitude without further compensation to the lot owners. Provost v. Water Company, 162 Pa. 275; Reading v. Davis, 153 Pa. 360, — 413 — McDevitt v. The Gas Company, 160 Pa. 367. Nor does the construction of a street railway upon the surface of a street impose an additional servitude upon the property fronting on the street so occupied: Rafferty v. The Traction Company, 147 P a. 579. But the easement acquired by the public by proceedings under the road laws is an easement for passage only. The owner is entitled to the possession of his land for all other purposes.” The appellant claims that under and by virtue of this decision street railway companies have no legal right to lay their tracks upon ordinary township roads. We do not understand Penna. R. R. v. Montgomery Co. Ry. to so decide. So far as the use by the public of the roads is concerned they are subject to the limitations of the act of 1889. The supervisors are empowered by that act to consent to the laying of street railway tracks upon the road, but they have no power to impose an additional servitude upon the land of the adjoining or abutting property owners. Justice Williams says, “ When the supervisors give their consent to the occupation of the township roads by a street railway they speak as the representatives of those who build and those who use the road, but not as the representatives of the private property over which it passes.” That is to say when a street railway company under and in pursuance of ample authority conferred upon them by their charter, having the consent of the supervisors, attempt to build a street railway upon a township road, the only persons who can call their right in question are the adjoining property owners. The appellant in this case is not such an adjoining property owner. Besides, this question while it was raised upon the argument is not to be found in the pleadings. In the answer filed by the appellant to the bill there is no averment made that the appellant was an adjoining property owner and no evidence taken to show that it was. The only issue to be passed upon in a suit in equity is that raised by the pleadings. Thompson’s Appeal, 126 Pa. 367. The appellant further contends that there was no valid consent given by the supervisors to the Traction Company to build their tracks upon the road. The testimony of P. C. Connelly one of the two supervisors discloses that he and the other supervisor Wm. R. Jones met three times in Lackawanna township and discussed the application of the Traction Company to lay — 414 — ' their tracks upon this road; that the supervisors had no regu lar place of meeting; and kept no minutes of their proceedings ; that at a meeting in an office at Scranton they executed the paper offered in evidence consenting to the building of their tracks by the Lackawanna Street Railway Company under whose right the plaintiffs were proceeding; that three several companies wanted this right; “and Wm. R. Jones and myself” to quote his own words “ were several times asked by those different parties for our consent to give them the right of way, so we met and decided to grant the right of way to the Lackawanna Street Railway Company. This paper was not ready at the time and when it was I signed it and presented it to Mr. Jones afterwards and he signed it.” The appellant claims that under the decision of the Supreme Court in Penn. R. R. Co. v. Mont. Pass. Ry. Co., supra, and Tamaqua and Lansford Street Railway Company v. Inter County Street Railway Company, 167 Pa. 91, this method of granting and securing consent is insufficient. I do not so interpret the opinion of Justice WILLIAMS in those cases. In the first case he says, “ In such cases the supervisors must be together and their action must be taken in their official character and should appear on the township books kept by the clerk. If not so taken it does not bind the township and has no validity.” Of course it must be action taken officially and if not so taken is invalid and it should appear upon the books of the township, but there is nowhere any intimation even in those cases if it does not so appear upon the records of the township that such action is invalid. The only proof in this case is that action was taken after four meetings to deliberate upon and discuss what their action should be and their final determination was arrived at after they had met for that purpose. In the case of Tamaqua and Lansford Street Railway v. Inter County Street Railway Justice Williams says, “ The action was not taken at a meeting of the supervisors regular or special. It was not entered upon the boobs of the township in the possession of the town clerk. No record of any sort was made of what was done because no official action was taken. A frightened man executed a paper adding his official title to his name but this did not make it the official action of the supervisors.” A very different action from that taken in this case by the supervisors. Indeed the whole — 415 — contention of the appellants upon this question seems to be, because there was no entry upon the books of the township that therefore there is insufficient proof of the consent of the supervisors and that such proof cannot be supplied by oral testimony. Such is not the law. The acts of a municipal corporation can be proven otherwise than by the minutes of its councils or records even although it was its duty “ to keep a fair and regular record of its proceedings:” Bank v. Dandridge, 12 Wheat. 64; Taylor v. Henry, 2 Pick. 403; Dillon on Corporations, sections 235, 236, 237, 238, and cases there cited; School Directors v. McBride, 22 Pa. 215; Furniture Co. v. School Dist., 158 Pa. 42; Roland v. School Dist., 161 Pa. 102. The remaining question for our consideration is whether the court erred in directing a grade crossing. The second section of the act of 1871 provides that “ when such legal proceedings relate to the crossing of lines of railroads by other railroads it shall be the duty of courts of equity of this commonwealth to ascertain and define by their decree the mode of such crossing which will inflict the least injury upon the rights of the company owning the road which is intended to be crossed, and if in the judgment of such court it is reasonably practicable to avoid a grade crossing they shall by their process prevent a crossing .at grade.” It was held in Penna. R. R. Co. v. Braddock Electric R. R. Co., 152 Pa. 116, that the duties imposed by the act of 1871 were not in any way restricted or limited by the act of March 14, 1889, which provides that “ any company incorporated under the provisions of this act shall have the right in its construction to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise now or hereafter built.” In the above case Justice Sterrett says, “We have no doubt electric railroads áre within the provisions of the act of 1871. They are certainly within the mischief for which the second section provides a remedy.” Again I quote from the same opinion: “ The manifest purpose of this is not merely to discourage grade crossings because of their danger to the public as well as injury to the company whose road is crossed, but also to prevent them whenever in the judgment of the court it is reasonably practicable to avoid such dangerous and injurious crossing.” In Perry County — 416 — Railroad v. Newport Railroad Company, 150 Pa. 193, Chief Justice Paxson says, “ The time for grade crossings in this state has passed. They ought not to be permitted except in case of imperious necessity. They admittedly involve great danger to life and property.” The law as enunciated in these decisions we are obliged to follow. The logic upon which these conclusions rest we are compelled to approve. The admitted rule therefore in this state is that grade crossings are to be avoided where it is “ reasonably practicable ”—or unless there exists an “ imperious necessity ” for their construction. This brings us to the consideration of the question whether any other crossing than a grade crossing at this point is reasonably practicable, or an imperious necessity exists for such grade crossing. Such corporations as this Traction Company we have already said do not possess the right of eminent domain. They have no right to occupy private property in the construction of their tracks as other railroad companies have except by direct purchase, and are therefore in the acquisition of such property compelled, if they must purchase, to pay whatever price the individual owner chooses to demand, or forego the construction of their road over it. The court in determining the method and manner of crossing can confer upon them no additional power to that which they already have. They can say they shall cross by an overhead or underground crossing, but they can confer upon them by such decree no power to elevate or depress a public street or road, or confer upon them no right to take private property for such purpose. Such power is not inherent in our courts, and nowhere has it ever been conferred by legislation. Railroads are authorized by the act of the 19th of February, 1849, to change the sita of any portion of any turnpike or public road, and in Penna. R. R. Co.’s Appeal, 128 Pa. 509, it was held that this conferred upon them the power to change the site of a public road where the construction of its roadbed made it necessary either to raise or depress the public road, but no such power has ever been conferred upon street railways. Street railways have no power to elevate or depress a public road for the purpose of crossing a railroad, and the courts cannot grant them such power. The consent of the supervisors for a street railway company to occupy a public road relates only to the use of the road at grade — 417 — and this only by virtue of the act of 1889, and because it does not interfere with the use of the road by the public, but so far as it imposes an additional servitude upon the land can be objected to by the adjoining property owners: Penna. R. R. Co. v. Montgomery Pass. Ry. Co., 167 Pa. 62. But no such consent would give them the right to use any portion of the public highway as an elevated railway or to build an elevated bridge upon any portion of the highway to enable them to cross over and above another railroad company’s tracks. “ Their tracks are located upon the surface of the streets and highways. They are required to conform to the grade of such streets as fixed by the municipal authorities:” Potts v. Elevated R. R. Co., 161 Pa. 396; Com. ex rel. v. Elevated R. R. Co., 161 Pa. 409; Rafferty v. The Traction Co., 147 Pa. 579. The same authorities decide that the municipal authorities can confer upon them no right to elevate their tracks upon a public-, street. Besides in this ease we in passing call attention' to the-fact that the adjoining and abutting property owners testify not only that they would object to the construction of an overhead, crossingin the road but that they would actively resist'such construction. That the courts have the power to compel street railway companies to cross a railroad crossing either above or- below grade in a suitable case, without their possessing the might of eminent domain or without their occupying any public- street or road, there can be no doubt. They can be compelled to acquire private property by purchase so as to enable them to cross in any way designated by the court. But what the court should do must be determined by the circumstances of the case, and each case must be determined upon its merits. This road is built up with houses on both sides as closely as many streets in towns. To leave the public road would require- the purchase of property now built upon and occupied as dwelling houses or as places of business, which would necessitate the-expenditure of considerable money, even if they might be- acquired by purchase. Not having the right of eminent dbmain. the appellee could not enter upon the property and' have-it comdemned. Not having the right to build an elevated structure upon the street, they can only cross at grade or by acquiring property by418 purchase belonging to others, and build an overhead crossing upon the land thus acquired. To compel them to do this at this point would involve them in so great an expense as almost to amount to a denial of their right to cross the railroad tracks» We agree with the learned court below therefore that a grade crossing at this point is such an imperious necessity as justified the decree. This view of the case disposes of all the questions raised by the assignments of error and they are all dismissed and the decree affirmed. The appellant to pay the costs. Decree affirmed.