Commonwealth v. Greybill

Opinion by William W. Porter, J., The defendant has been convicted of maintaining a nuisance on a public street in the borough of Carlisle. The tracks of the Cumberland Valley Railroad Company'occupy longitudinally a part of one of the streets of the borough. From these tracks [518] a “ turn out ” was, more than a quarter of a century ago, constructed, leading at a sharp curve across the unoccupied part of the street; .across the footway, and thence by a right of way owned by the defendant, to his mill. The evidence admitted does not show that the defendant originally constructed the “ turn out,” nor, indeed, who built it. The commonwealth alleges that the defendant maintained it and, being without authority of law to maintain railroad tracks upon a public highway, that he thereby became guilty of the misdemeanor charged. The first matter of defense is that the defendant had the power to construct and maintain the “turn out” track (as above described), under the legislative grants contained in the charter of the Cumberland Valley Railroad Company. This we cannot concede. Section 19 of the act of April 2, 1831, creating-the franchise, is as follows: “ That the company shall not prevent any person or persons, being the owner or owners of any land bordering on said railroad, or adjacent thereto, from making such lateral railroads, and to connect them with said railroad from said lands, as the said person or persons may conceive. necessary, but so as not to interfere with or impede the use thereof.” It may be that this legislation would have given to the defendant some right had he been able to connect with the tracks of the railroad without going upon the public highway, but it gave the defendant no right to lay or maintain railroad tracks upon the public highway. The right to .do this must be clearly conferred by the legislature: Commonwealth v. Erie, etc. R. R. Co., 27 Pa. 354. It is not conferred by the language quoted. Nor could the defendant procure by purchase, lease or transfer from the railroad company, the power to do that which involves the exercise of the right of eminent domain : Barker v. Hartman Steel Co., 129 Pa. 551. The real question in the case was largely one of fact, namely, Did the defendant maintain the “turn out” on the public highway? He is not shown to have constructed it. He says that he drew cars over it and over his own right of way to his mill; that the track upon the right of way he kept in repair ; but that the “ turn out ” was reconstructed, repaired and maintained by the railroad. He was partially corroborated by an employee of the railroad who in” effect said, that the railroad company had relaid the track of the “ turn out ” a few years before the [519] trial, and had made repairs to it, but added, that a report of the cost thereof was by him returned to the company as made to “ Greybill’s siding,” and that this he would not have done in the case of one of the company’s own sidings. The witness further testified that he 'did not know whether the cost of the work which he did was charged by the company to Greybill or not. The facts that the defendant used the “ turn out ” as described, and that bills for some of the repairs to it made by the railroad company may have been rendered to the defendant and paid by him, did not shut off all inquiry as to the relation which the railroad bore to the maintenance, construction and reconstruction of the “ turn out ” as part of its trackage. The defendant’s conduct might have been consistent with his claim of nonliability, if he had been permitted to show, by the chief engineer of the railroad company, that he, acting for the company, had “ changed the sidings on Main street as they now are with rails furnished by the Cumberland Valley Railroad Company; that he ran the sidings into the mill; ” especially as the defendant offered to follow this by proof that .the railroad company had subsequently repaired the sidings. We think, therefore, that the learned trial judge should have admitted the evidence covered by the defendant’s offers of proof, the rejection of which is made the basis of the third and fourth assignments of error. If the proof had come fully up to the offers, it would have aided the jury (to whom the question should have gone) in determining whether in point of fact the defendant or the railroad had constructed or reconstructed or was maintaining the piece of track constituting the alleged nuisance. If the jury should find that not the defendant but the railroad company (whether lawfully or not) reconstructed and maintained the “ turn out,” there could be no conviction, even though the defendant may have moved cars over the “ turn out” to his own right of way. Elaborate arguments have been presented by learned counsel upon the question whether the railroad, company has the right, under its charter, to construct and maintain the “ turn out,” of which complaint is made. We do not think it necessary to pass upon this question now. The company is not indicted. If it had been set up that the defendant kept the “ turn out ” in re [520] pair for and on behalf of the railroad company, the existenec of the power in the company to construct and maintain the “turn out” on the public highway would have become an important matter. As the case now stands, the proposition, thus presented, is not raised. The defendant has proceeded upon the theory that he neither constructed nor maintained the “ turn out,” or failing to show this, that he himself had the right, under the powers contained in the original grant of franchise to the railroad company, to construct and maintain the “ turn out.” The latter proposition, as we have seen, is not sustainable. The former is a question of fact. Were we to hold as matter of law that the railroad company under its charter had the right to construct and maintain such a “ turn out,” the question of fact would still remain, namely, did the company construct and maintain it ? This being found affirmatively,' the defendant is relieved and the question of law becomes unimportant. We specifically sustain the third and fourth assignments of error, and such only of the other assignments or parts thereof, as may be affected by the views herein expressed. The judgment is reversed and a new venire is awarded.