Philadelphia v. River Front R.

Opinion, Me. Justice Mitchell : Though this case arises upon a litigation of much wider scope, yet the present controversy turns on the construction of a single sentence in the agreement between the parties, which was by consent made a decree of the court in the original suit. It was thereby stipulated that the railroad company “ will lay down on Delaware avenue, between Vine street and Walnut street, a single track only, without sidings for standing or passing trains,.....and that the said defendants will at no time lay down or construct any such switches or turn-outs between said points,” etc. The words, sidings, switches, and turn-outs, in relation to railroads, are of course of modern growth, and, not only in popular use, but in the dictionaries, are treated as to some extent interchangeable. Thus, the only definition that Webster gives of siding is “the turn-out of a railroad,” (noted as English,) and turn-out is defined as “ a short side track on a railroad which may be occupied by one train while another is passing on a main track; a siding.” But, even without the authority of the dictionaries to sustain them, we think it quite clear that the parties to this agreement meant to use tbe words as equivalents. The appellants are to lay down “a single track only, without sidings for standing or passing trains,” and they are at no time to construct “ any such switches or turnouts.” “Such” grammatically refers to an antecedent, and, if “switches or turn-outs ” do not here refer to the “sidings ” before mentioned, then there is no antecedent, and we must treat the [140] word, such, as used ungrammatically, or throw it out altogether, as surplusage. To this last resort, in fact, the appellee’s argument is driven. But a word not plainly inserted by accident or mistake is never to be thrown out entirely, while there is a plain and natural construction which can be given to it, not manifestly destructive of the general intent of the sentence. The general intent of this agreement is not at all doubtful. It is to limit the railroad company to a single track, and the provision that it shall be without sidings for standing or passing trains is intended to enforce that limitation, and to secure the street from such occupation as might amount practically to a double track. This done, the present action of the railroad is conformed to the intent of the parties, and there the stipulation on the subject might have ended; but, to secure the future, the agreement goes on to say: And the defendants “ will at no time lay down or construct ”—what ?—“ any such switches or turn-outs.” That is, the company will not in the future lay down any such additions to their single track, as they have agreed not to do now, to wit, sidings for standing or passing trains, which shall in effect double their single track. This, we think, is the plain general intent of the agreement, and the natural meaning of the language used to express it. It does not, therefore, seem to require further discussion. But, if we look at the other writings in the case, and particularly at the ordinance under which the railroad was constructed, not for the purpose of entering into the consideration of any of the questions raised by the original litigation and settled by the agreement, but merely as illustrative of the situation of the parties and the subject matter before them, we find our view strongly confirmed. The ordinance by which the city of Philadelphia gave its consent to the building of the railroad authorizes the construction of “ a single track railroad for ordinary railroad purposes and uses, with suitable and necessary turn-outs into and upon the warehouses and wharves.” Part of the consideration to the city for permitting the occupation of its streets is thus shown .to be the facilitation of business by such railroad connections with the warehouses and wharves; and this purpose is expressed still more explicitly in the second section, relating to the railroad on Delaware avenue north of Callowhill street, etc., in which it is stipulated that all sid [141] ings and turn-outs shall be free to both the River Front and the Reading railroads, “ so that all manufacturers’ and business interests along the said line shall have the full benefit of receiving from and delivering property to said roads.” Whether the appellant could enter into any agreement which would deprive the business on Delaware avenue of this convenience, which was part of the consideration for which the city granted the permission to build the railroad at all, we are not required to consider; but the fact that the appellant was under obligation to the city to preserve such business lights, is an additional reason for not straining the language of the agreement into an abandonment of them, when the natural meaning does not call for such construction. We are of opinion, therefore, that the making of the turn-out in controversy was not a violation of the agreement, or the decree founded thereon. The view we have taken renders it unnecessary to consider the other questions involved, but we may say that, as the case is now presented, it was an error to order the removal of the turn-out without making the owners of the premises parties to the proceeding. The answer avers that the owners, Messrs. Crowell and Class, requested a turn-out in accordance with the ordinance aforesaid, and obtained a permit from the Department of Highways to remove the street pavement, and lay a track into their warehouse from the track of respondent, and that this is the turn-out in question. It is, perhaps, not entirely clear from this answer whether the turn-out jvas actually constructed by, and was the property of Crowell & Class, or the railroad; but, in cither aspect, Crowell & Class had an interest in its maintenance, if not a property in the thing itself, and could not be deprived of either without notice and a hearing. Orders reversed, and record remitted for dismissal of the petition, with costs.