Genesee-Fork Imp. Co. v. Ives

— 121 — Opinion, Me. Justice Gbeen: After the trial of this case the bond given by the appellee in the course of its organization proceeding under the fifth section of the act of 1883 was found. The condition of the bond is in exact conformity with the requirement of the fifth section. It was duly approved by the court on March 24, 1888, and was therefore a full compliance with the statutory requirement in that regard. It is still contended, however, that the plaintiff was obliged to file another bond under the fourth section of the act, before it could exercise its corporate franchise. While we do not consider that the defendant is entitled to raise this question, in the present collateral proceeding, an examination of the fourth section satisfies us that there was no necessity for the giving of any other bond than the one required by the fifth section. The fourth section merely provides a method of proceeding for the assessment of damages sustained by the owners of dams and land along the streams, and simply directs that when the company and the owner cannot agree as to the damages, the assessment shall be made under the forty-first section of the act of 1874, to which the act of 1883 is a supplement. Upon recurring to that section, we find that it contains an elaborate provision for the assessment of damages by the appointment of viewers whose proceedings are prescribed in about the — 122 — usual manner in which views for such purposes are conducted. The section contains a further provision that when the parties cannot agree upon the amount of the damages to be paid, the corporation shall tender a bond to the party claiming damages, with condition that the corporation will pay such amount of damages as the party shall be entitled to receive, after the same shall have been agreed upon by the parties or assessed in the manner provided for in the act. It is plain that the duty to tender this bond arises as a part of the proceedings for the assessment of damages in the cases covered by the act of 1874. Had the .act of 1883 contained no other provision for the giving of a bond than is contained in the act of 1874, it would have been necessary for the plaintiff to have given the bond required by that act. But the act of 1883 does contain a specific provision for the giving of a bond in its fifth section. The condition of the bond there required to be given is for the indemnification of “ all and every person whose property may be injured by reason of the construction and operation of the improvements of the corporation.” As this language is broad enough to include all owners of dams and lands on the stream in question, it is manifest that it is ample to confer every remedy afforded by the bond required by the forty-first section of the act of 1874. The giving of such a bond, therefore, is entirely unnecessary when the bond required by the fifth section of the act of 1883 has been given. The first assignment of error is not sustained. The questions raised by the second, third, fourth and fifth assignments relate to matters which must be considered as having been settled when the corporate franchise was acquired. The right to appropriate the stream for the purpose of floating logs upon it was conferred by the act of 1883, under which the plaintiff was organized. It could not be tolerated that the right to exercise the franchise and collect the tolls allowed.by the act, should be defeated by objections which deny the necessity of the franchise, or call in question the degree of perfection in the improvements made by the company. Although it might be possible for an owner to float his logs upon the natural state of the water, and without assistance from the dams, at times, that is no reason why the company may not claim the fruits of its franchise; and so also as to its right to collect tolls, which — 123 — is called in question under the sixth and seventh assignments. So long as the company keeps within the discretionary limit fixed by the .statute, its right to collect the tolls cannot be defeated, nor its discretion to fix the amount questioned, All of this was decided in the cases of Boyle v. Railroad Co., 54 Pa. 310, and Cumberland V. R. Co.’s App., 62 Pa. 218. In the latter case, Thompson, C. J., said: “ The company has therefore the clear warrant of the charter for demanding the aggregate of the sums, viz., seven cents per mile per ton, for private freight in their own cars on their own road. Within this limit no court can interfere with them. This is settled by the charter, and by the decision in the case of Boyle v. Phila. & Reading R. Co., supra. The master finds that the company has not transcended this limit, and the court, very properly concurring with the master, dismissed this portion of the bill.” In the case of Parke’s App., 64 Pa. 137, we held that the court has no right to interfere with a company’s location of their road, on the score of preference, within the limit of their charter. In the case of Struthers v. Railroad Co., 87 Pa. 282, the present Chief Justice said: “ There is only one question remaining in the case, and that is, whether the court below should have received evidence to show that the company might have located its road upon another route, and thus have avoided laying the track upon High street. We are clearly of opinion that the learned judge was right in excluding evidence of this character, and also in his answers to the points in which the same question was presented. The discretion of the company in locating its road cannot be reviewed in this manner. The location was made in the exercise of an undoubted power.” It was said in Parke’s App., 64 Pa. 137: “ Neither the court below nor this court has any right to interfere with the location made by the company on the score of preference, if any be felt. The only question is whether it has or has not exceeded a discretion on the subject, apparent on the face of the act of incorporation.” In the case of Bennett’s Branch Imp. Co.’s App., 65 Pa. 242, in which the company was authorized to clear out, improve, and use Bennett’s branch, to use dams erected and erect new dams, and to use all of said dams and the waters of the said stream in the floating of saw-logs down the same, Thompson, C. J., in delivering the opinion, said: . — 124 — “ The company, having authority by law to improve the stream in the manner prescribed, for the consideration of taking toll on the lumber and logs floated thereon, would not lose its franchises, because tlie improvement was in fact not beneficial, there being no such condition prescribed. The legislature determined that question in granting the charter; and all the franchises granted will remain, in the absence of any limitation, until taken away by some direct action for that purpose, legislative or judicial. . . . The right to impose tolls as a consideration for the completion of an enterprise intended to benefit the public, is a right of government. It is conceded to the promoters as a compensation for the benefit, in contemplation of law, which every individual receives for an improved mode of transit of person or property. Individual complaints avail nothing against the right. These individual inconveniences must yield to the wants of the whole public. In most of these cases of improved navigation by companies or the state, if not all, individuals have always been found who would claim to be as well off without such improvements as with them; and yet they are obliged to pass over them with their property, and pay tolls. There is no reason in this for impeaching the validity of the law. This results from the aecidency of location, and of this nobody is to blame but the owner, and he must submit to all legal consequences incident thereto.” The considerations so well expressed in the foregoing opinion practically dispose of all the questions arising upon the rejected offers of testimony covered by the several assignments of error now under discussion, including the question of the reasonableness of the tolls charged for the logs floated in 1889. The only question discussed by counsel for the appellant under the eighth assignment of error is the correctness of the instruction that neither the court nor the jury had the right to determine what was a reasonable charge per one thousand feet, so long as the company kept within the maximum price fixed by the statute. As we have already held that this is a subject within the discretion of the company, we think there was no error in this portion of the charge. We are bound to consider that,’ so long as the charge did not exceed ten cents per one thousand, it was reasonable within the contemplation of the law. — 125 — The ninth assignment of error, as it is pressed upon our attention, raises no other question than the one covered by the eighth assignment. The full amount charged was ten cents per one thousand upon the number of feet of logs floated as stated in the testimony, and it is not claimed that there was any error in the court’s statement of the quantity. It is true that the court did direct a verdict absolutely in favor of the plaintiff, although the right of recovery depended upon oral testimony. This ordinarily would be error, as it includes substantially an instruction that the jury must believe the plaintiff’s witnesses, and that is a subject over which the jury has exclusive control. The ninth assignment is in violation of our rule of court, as it does not contain the language of the court in totidem verbis. Expressed as it is, and discussed as it is, it complains only of the amount charged, and not of the direction to find for the plaintiff. Were we at liberty to reverse for the technical error of the charge in this respect, we do not think any interest of the defendant would be subserved by our doing so. We prefer to say, therefore, that we disregard this feature of the assignment, because it is not properly expressed, nor is the question itself anywhere discussed in the argument for the appellant. There is no force in the tenth assignment, as the act of 1888 is not an amendment to the act of 1879, but to the act of 1874, and the amended section of that act is correctly re-enacted in the act of 1883. Moreover, this point was not made in the court below, and no exception on the record raises the question. Judgment affirmed.