Pennsylvania Railroad v. Inland Traction Co.

Opinion by Rice, P. J., The Chestnut Hill and Spring House turnpike runs nearly north and south at the point where it is crossed by an iron bridge constructed by the plaintiff for the passage of its cars. At the time this bill was filled the defendant had practically completed its street railway except at railroad crossings and was about to lay its track on the turnpike underneath the bridge. The line of the street railway is west of the center line of the turnpike and crosses a lot — that part which is in the bed of the turnpike — which was conveyed by James Otterson to the plaintiff by deed in fee simple dated April 17, 1890. The deed calls for the center line of the turnpike as one of the boundaries. The lot contains a little over two acres and has a frontage on the turnpike of about two hundred feet. Running nearly east and west through the center of this lot the plaintiff company has a stone viaduct, a little over twenty-seven feet in width, which, as we understand the testimony, is a continuation of the iron bridge that crosses the turnpike. At the — 125 — western end of the viaduct the plaintiff has an- embankment or fill which occupies in width a 'much larger part of the lot but not all of it. It is thus seen that on either side of the bridge, viaduct and embankment upon which the plaintiff’s tracks are laid there are strips of land of varying width that will be crossed by the street railway and that are not now physically occupied by the plaintiff’s tracks or either of these structures. But the court has found upon sufficient evidence as follows : “ The land owned by the plaintiff at the point in dispute is held for railroad purposes and is principally, if not entirely, available only for such purposes.” This finding of fact is amplified and explained later in the opinion as follows: “ The lay of the ground, its necessity to secure a crossing by the bridge that is part of the ‘ right of way,’ under which term certainly is included more land than that actually occupied by the tracks, and the testimony of the plaintiff would imply that it may be' necessary to be used for more tracks.” Again, speaking of the power of the plaintiff company, the learned judge says that it could only have acquired the land for the lawful purposes of a railroad, and that it is plain from the testimony that it was all acquired by reason of the necessity of building a bridge over the turnpike. From the foregoing and other facts set forth in his opinion he draws the conclusion that it is “ an essential part of the crossing no matter what its extent,” and therefore it was not necessary for the defendant to obtain the plaintiff’s consent to the laying of the street railway tracks on the turnpike in the manner above described. In view of the decision in North Penna. R. R. Co. v. Inland Traction Co., 205 Pa. 579, which we shall more fully consider hereafter, we have not deemed it necessary to recite the facts relative to the plaintiff’s ownership and occupancy of the lot on the east side of the turnpike. They are fully set forth in Judge Weaítd’s opinion, and it is enough for us to say that none of them tends to weaken the foregoing findings and conclusions, but, taken as a whole, they tend rather to strengthen them. A railroad company has a right to consider the needs of the future and to construct its road and make its plans with reference to those future needs; Pittsburg Junction R. R. Company’s Appeal, 122 Pa. 511; Pitttburg, Ft. Wayne and — 126 — Chicago Ry. Co. v. Peet, 152 Pa. 488. In the absence of any prohibitory statute, such corporation may take by purchase and hold, in fee simple, such land as may be necessary for its purposes, and section 2 of the Act of April 13, 1846, P. L. 312, expressly conferred upon the plaintiff the power “ to purchase, receive, have, hold, use, and enjoy to them and their successors, lands, tenements, and hereditaments,” etc. Therefore, and especially in view of the foregoing findings of fact, there is no warrant for doubting the power of the plaintiff to acquire and hold the whole of the Otterson lot in fee, even if it were competent for any one but the representative of the commonwealth to raise that question in this collateral way. The propositions, that street railway companies incorporated under the act of 1889 have not the general and unrestricted power of eminent domain, and that the laying of street railway tracks on a suburban road is an additional servitude, which cannot be imposed upon the owner of a fee against his will by mere consent of the township, were definitely decided in Pennsylvania R. R. Co. v. Montgomery County Passenger Railway, 167 Pa. 62, and the group of cases reported in the same volume, and have been reaffirmed in many subsequent cases. The argument of defendant’s counsel in their original paper-book in support of the proposition that the power of eminent domain given by the 17th section of the act is not confined to the interest of the turnpike company in the road but includes also the interests of abutting owners whose titles extend to the center of the turnpike has been conclusively answered in Hinnershitz v. United Traction Company, 206 Pa. 91, decided since the argument was prepared. It was there held that the view taken by counsel “ would establish a distinction between turnpikes and ordinary highways as to the rights of abutting landowners, giving the power of eminent domain in one case and not in the other, a distinction for which there is no warrant in the act.” But the 18th section of the act gives in express terms to street railway companies the right “ to cross at grade, diagonally or transversely, any railroad operated by steam or otherwise.” This right is subject, however, to the jurisdiction of courts of equity, conferred by the act of 1871, “to ascertain and define by their decree the mode of such crossing — 127 — which, will inflict the least practical injury upon the rights of the company owning the railroad which is intended to be crossed,” Pennsylvania R. R. Company v. Braddock Electric Ry. Company, 152 Pa. 116, and is not exercisable at all, without consent of the railroad company, at points other than upon a public highway: Northern Central Railroad Company v. Harrisburg, etc., Ry. Company, 177 Pa. 142; Cumberland Valley R. R. Co. v. Harrisburg, etc., Ry. Co., 177 Pa. 155. In the former case an overhead crossing, and in the latter a crossing underneath the superstructure on which the tracks of the railroad company rested, was held on appeal to be unwarranted by the act of 1889 and was enjoined. Speaking of section 18 Chief Justice Sterrett said that the authority therein granted is necessarily applicable only to crossings at points where the railroad is crossed by a street or highway. “ In other words, it refers only to a crossing at a point where a street or highway, on which the street railway is located, crosses a steam railroad. To hold otherwise would not only be contrary to the manifest intention of the legislature but it would involve the constitutionality of the 18th section.” This language, indeed the tenor of the opinion as a whole, forbids the inference that the court intended to overrule or qualify what was said on this point in Pennsylvania R. R. Co. v. Greensburg, etc., Ry. Co., 176 Pa. 559, which was decided less than three months before. In that case the right of a street railway company to cross at grade two side or branch tracks of a railroad which intersected a borough street, and to cross the main line by a bridge spanning the same which formed part of another street, was sustained. Commenting on Pennsylvania R. R. Co. v. Montgomery County Ry. Co., 167 Pa. 62, Justice Mitchell said that what this case “ really decides and is authority for is first that the laying of railway tracks oil a suburban road is an additional servitude which cannot be imposed upon the owner of the fee against his will by the mere consent of the township authorities; and secondly that the franchise of a street railway passing through several localities is an entirety and the necessary local or municipal consent for the whole route must be obtained, before it has a right to build any part.” Coming then to the question whether the railroad company was in a position to question the right of street railway companies to — 128 — construct and. operate railways along the routes or portions of routes in controversy, he further said: “ The charter covers the route upon which the road is built, and the learned judge below has found that the appellee has the consent of the local authorities, of all the owners of property along the roads occupied and of those through whose property its line passes. To entitle appellant to question the prima facie right thus appearing it must show some interest in, or damage to itself, different from that of the general public. It has failed to do so. It is not the' owner of the bridge, and the crossing over its right of way is upon a public highway, to all the rightful uses of which its property is subject. The bridge is part of the highway, and the consent of the borough authorities for the laying of the rails must be as effective on it as on anjr other part, or the borough would hold its municipal power to consent only in subordination to the will of every railroad which the highway happened to cross. The 18th section of the act of 1889 gives in express terms the right to cross railroads at grade, and a fortiori to cross overhead. In respect to a mere crossing, a railroad is not an abutting landholder to the passenger railway, as the plaintiff was in Penna. R. R. Co. v. Montgomery County Ry. Co., supra.” The case is distinguishable from the present in two particulars, first, the highways involved were borough streets — see Dempster v. United Traction Company, 205 Pa. 70- — second it, does not appear that the railroad company owned its roadway in fee. Therefore it cannot be said to rule our case, but the concluding sentence above quoted is significant. In Williams Valley R. R. Co. v. Lykens, etc., Street Ry. Co., 192 Pa. 552, the street railway company proposed to cross the railroad diagonally at grade at a point where the latter crossed the township road. Judge Simonton found as a fact that the railroad company was the owner in fee of its right of way where it crossed the highway but was not the owner of any land at this point except the right of way, and held as matter of law — citing the preceding case — that this of itself did not give it the right to prevent a street railway company from crossing its road at grade. Upon appeal the decree permitting this manner of crossing was reversed upon the ground that it was reasonably practicable to avoid a grade crossing. But upon the point now — 129 — under consideration Justice Dean, speaking for the Supreme Court, said: “ As to the first question, the court below was clearly right in holding that the ownership of the land in fee by appellant, under the peculiar facts shown, whereon rested its superstructure, gave it no right to exclude subsequent grantees of the commonwealth from the use of the highway or public road which crossed it.” In the very recent case of North Pennsylvania R. R. Co. v. Inland Traction Co., 205 Pa. 579, it appeared that the plaintiff’s railroad crossed the turnpike through a deep cut which was spanned by a bridge forming part of the highway and that the plaintiff was the owner in fee of the bed of its railroad at that point and also of several pieces of land abutting on the east side of the turnpike, but, except where the railroad crossed the turnpike, its fee extended no farther than to the center of the turnpike. But there, as here, the proposed line of the street railway was to the west of the center line of the turnpike. As to the right of the railroad company growing out of its ownership in fee of the pieces of land on the east side of the turnpike Justice Brows said: “No additional servitude has been imposed upon their land, which extends only to the middle of the highway. The route of the appellee along the turnpike is over the lands of others, who have consented to its location there. In the case of the occupation of a township road, maintained by supervisors, the rule goes no further than that while an- injunction, if applied for in time, will issue at the instance of an abutting owner, to protect his own land from an additional burden on it, it is none of his concern that his neighbors on the opposite side of the road consent to the use of their lands by a passenger railway company, so long as, from such use, no injury results to him. The protection by injunction to which each landowner is entitled is confined to his own property.” As to the rights of the railroad company growing out of the ownership in fee of the land where its railroads crosses the turnpike he said: “Though the appellants are landowners on each side of the turnpike where their railway crosses it, they are not at that point abutting landowners, having a right to complain of the appellee’s imposition of an additional servitude upon their land. The crossing of the turnpike by their tracks made the bridging of a deep cut necessary, and the bridge became a part of the high — 130 — way, but the railroad company is not, at that crossing, ‘an abutting landowner to the passenger railway, as the plaintiff was in Penna. R. R. Co. v. Montgomery County Pass. Ry. Co., supra;’ Penna. R. R. Co. v. Greensburg, etc., Street Ry. Co., 176 Pa. 559.” It is fairly deducible from these cases that ownership in fee of the bed of its railroad, where the same crosses a public highway, does not put a railroad company in precisely the same position with reference to the right of a street railway company to lay its tracks upon the highway that its vendor would have held if he had not parted with his title, but that, by reason of the provisions of section 18 of the act of 1889--as the latter .is qualified by the provisions of section 2 of the act of 1871— the railroad company holds subject to the lawful uses of the highway, and amongst them its use for the passage of the cars of a street railway company over the route authorized by its charter, provided of course, that the latter is otherwise fully entitled so to do. If we are correct in drawing the foregoing conclusion, the case at bar is plainly distinguishable from Penna. Canal Co. v. Lewisburg, etc., Passenger Ry. Co., 10 Pa. Superior Ct. 413; nor would it be reasonable to hold that the right of a street railway company, thus recognized, is restricted to the soil lying directly underneath the ties and rails of the railroad company. If the proposition is maintainable at all, as under the foregoing decisions it would seem to be, it is applicable to all the land which in a legal sense constitutes the roadway, or as it is commonly called “ the right of way,” of the railroad company at the point where it crosses the highway. But to cross a railroad and to cross the lands of a railroad company are not convertible terms. Unless the lands of a railroad company held in fee can fairly be said to be a part of its roadway where it crosses a highway the right of the owner, though a railroad corporation, as against the asserted right of a street railway company to lay its tracks upon a suburban road, is as perfect as that of a private individual. The decisions leave no room for doubt upon that question. The question then arises whether all that portion of the Otterson lot lying within the lines of the turnpike may properly be deemed to be a part of the crossing of the Pennsylvania railroad within the meaning of section 18 of the act of 1889 — 131 — and of the decisions above cited. The case, so far as the defendant’s legal right is concerned, turns upon this question; for it is clear that if the strips of land lying on either side of the plaintiff’s bridge, viaduct and embankment and extending to the center of the turnpike may not be so designated, the street railway company has no legal right to lay its tracks upon that portion of the turnpike without the plaintiff’s consent. And this is true, no matter how advantageous it might be to the public, or to the street railway company, for the latter to have that privilege. It must be conceded that under the evidence the question above stated is not free from difficulty. But it is to be observed that the presumption, which is in accordance with the actual facts of the case, is, that the land was acquired and is held for railroad purposes, that in the acquisition of land for such purposes by deed the company was not restricted to sixty-six feet, that the company is not in a position to assert, and does not assert, that it acquired more land than was required for its present or contemplated needs, and that there is no clear proof that it had any other purpose in view than to make suitable provision for its roadway, or that the land has been devoted to any other railroad purpose. While the company’s title to the Otterson lot extends to the center of the turnpike, and is clear and free from doubt, the majority of us are of opinion that its right to prevent the street railway company from laying its tracks on that portion of the turnpike is not so. This doubt arises, not out of the fact, merely, that the owner of the land is a railroad company, but out of the evidence relative to the purpose for which the land is held. In other words, under the evidence and the -findings of the court below based thereon it is not clear that the strips of land lying on either side of the plaintiff’s bridge, viaduct' and embankment are not constituent parts of its roadway or right of way, and therefore, it is not clear that the act sought to be restrained involves more than a crossing of the plaintiff’s railroad within the meaning of section 18 of the act of 1889, and the principle of the cases last cited. This is as far as we need go, or are disposed to go, in the present case. For it is to be borne in mind that the plaintiff is in a court of equity, and is asking its aid to prevent an act which will in no way interfere with the operation of its railroad or the use of its land abutting on the turnpike for rail — 132 — road purposes. The well settled principle is applicable that an injunction will not be awarded, in a doubtful case, where the benefit to the complainant is entirely disproportionate to the injury to the respondent. In no class of cases has the doctrine of balancing injuries been applied with greater liberality than in the street railway cases that have arisen since 1889. “Equity does not enforce a strictly legal right, regardless of consequences. It is said that an injunction is of grace. This does not mean that a chancellor may grant or refuse an injunction as he pleases, but that his action is controlled by considerations of conscience. He does that, which in good conscience he ought to do. The question in each case must depend upon the circumstances out of which it grows, and requires the exercise of judgment, in determining the equities involved: ” Heilman v. Lebanon and Annville St. Ry. Co., 180 Pa. 627. The same equitable principle was enforced, in a case where the plaintiff had filed a, bill in equity, before that part of the highway in front of his premises had been entered upon by the defendant company, but had not moved for special injunction, nor taken steps to bring the cause to an issue and hearing, until after the road was built, and in full operation. The plaintiff planted himself on his legal right, and Justice Mitchell, who rendered the opinion of the court, conceded that “ if he were in a court of law, his position would be incontestable,” but after referring to his delay in prosecuting the suit, the change of conditions during this delay, the disproportion of the benefit to the plaintiff to the injury to the respondent and the public, which would result if an injunction mandatory and destructive in its character were granted, and to the general principles which ought to guide a chancellor in such a case, he concluded as follows : “ In view of the learned judge’s findings in the present case, on the loss to the defendant, the inconvenience to the public, the smallness of the injury to the complainant, and its easy compensability in money, he could scarcely have reached any other conclusion, than that the complainant, however clear his right, should be left to his remedy in damages: ” Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. 484. For all the stronger reason a chancellor ought to consider all these things when the plaintiff’s right depends upon a matter of fact concerning which the evidence is such as to permit — 133 — reasonable men to arrive at different conclusions. This is as plain, if not a plainer case than that last cited, for the application of the equitable principles; for, to say the least, the legal right of the complainant here to exclude the defendant from the turnpike at the point in question is, under the evidence, not clear and free from doubt. Decree affirmed at appellant’s cost.