Buffalo & St. Mary's Railroad v. Philadelphia & Erie Railroad , 174 Pa. 263 ( 1896 )

Opinion by

Mr. Justice Fell,

The bill filed in this case was to prevent interference by the defendants with the location, construction and operation of the plaintiff’s railroad at a point where it was necessary to cross the land and tracks of the defendants’ railroad. The necessity for the crossing was made manifest. The right to cross is conferred by the constitution, and the reasonable limits within which it may be exercised are clearly defined by numerous decisions. Tbe only question before tbe court related to tbe place and manner of crossing. A grade crossing was not desired. The plaintiff proposed to cross by means of a bridge with sufficient span and headway to cause no interference with the defendants’ tracks. The plaintiff’s chief engineer testified that at the point selected for crossing the least injury would be done to the defendants’ property; and the defendants’ chief engineer testified that the point selected was as good as any that could be found in that vicinity, and that a bridge with a clear span of sixty feet and a height of twenty-two feet would not be an obstruction and would give sufficient room for four tracks. This was the only testimony upon the subject. The crossing was directed to be made by a bridge constructed on a plan suggested by the chief engineer of the defendants. The decree entered by the learned judge was clearly right.

A type-written bill was filed with a certificate by counsel that there had not been sufficient time to print the bill, and that the purposes thereof were urgent and required immediate action. In the notice indorsed on the bill the defendants were required to appear within fifteen days, but there was an omission to require them to answer. The jtiotice indorsed on the printed bill, which was served on the defendants within twenty days, was in exact compliance with the new equity rules, and the court upon hearing found that the omission of the words “ and answer ” from the notice on the type-written bill filed was a clerical omission, and refused to dismiss the bill as not in conformity with the equity rules. In Cassidy v. Knapp, 167 Pa. 305, the equity rules were disregarded both as to form of notice and manner of hearing. The case had proceeded from the beginning notwithstanding objections urged upon that ground. No attempt was made to correct the error in the form of notice, and the hearing of the motion for -an injunction was under the old rules. The amended rules had been recently adopted, and their effect was not fully understood. It was our purpose in the opinion in that case to call attention to the fact that all equity proceedings were to be governed by these rules.

In this case there was a manifest intention to comply with the rule as to notice. The notice was regular in form and substance except in the clerical omission of two words, by which the defendants were relieved of the necessity of filing an answer. The error was in a preliminary matter in a proceeding which has now passed to final hearing and decree. It was inadvertently made, it was harmless in effect, and it was corrected before hearing in the printed copy of the bill served. It is not our intention to relax the rule as stated in Cassidy v. Knapp, supra, but what was said in that case does not apply to a harmless mistake, innocently made and speedily corrected. The ruling of the learned judge of the common pleas was in harmony with the opinion of the present Chief Justice in Brinton v. Hogue, 172 Pa. 366.

As the original entry by the plaintiff on the property of the defendants was without authority, no bond having been filed, the affirmance of the decree should be without costs. The decree of the court of common pleas of September 9,1895, is affirmed without costs, and it is ordered that the record costs be paid by the appellee.