Cumberland Valley Railroad v. Harrisburg & Mechanicsburg Street Railway Co. , 186 Pa. 91 ( 1898 )

Opinion by

Mr. Justice Gbeen,

The contention of the defendant that the route of the railway has been changed since the former decision was made, and is now laid on the bed of a public highway where it crosses the plaintiff’s land is not sustained. The learned court below in its fifth and sixth findings of fact declared as follows: “ 5. Prior to the time the bill was filed, the defendant surveyed the route for its railway under the span next to the easternmost one of the plaintiff’s viaduct, and had laid a few rails near to the same with the intention of building its line as thus laid out. . . . 6. Shortly before the trial, the route of the railway was changed to run under the westernmost span of the viaduct, on the bed of an old turnpike, now abandoned.”

It appears therefore that the whole of this matter was before the court below and this Court when the decree for the injunction was granted. That decree was made for the first time, by this Court on October 6,1896, and on January 18,1897, it was ordered by this Court that the record be remitted to the court below for further proceedings. The writ of injunction was not issued until January 27, 1897. The application for an attachment was not made until June 8, 1897, and the answer of the defendant to the plaintiff’s petition was filed on June 17, 1897. The opinion of the court below was filed on July 18, 1897, and the matter now alleged as to the change of the bed of the road was .then heard and distinctly decided against the defendant. The court said: “ Since January 28,1897, the respondents to the above rule have openly violated the writ of injunction which on that date was served on them under the decree of the Supreme Court. The statement now made in vindication of their course, viz: that the injunction was not intended to apply to the tracks through the western span of plaintiff’s viaduct is not correct, and we cannot conceive how the respondents could have been misled on the subject.” Thus it will be perceived there was a distinct finding of the court below upon the very fact now set up as to the alleged changed location of the bed of the road after the decree for the injunction was made. It further appears by the answer of the defendant to the plaintiff’s petition for an attachment that the present allegation of a removal of the bed of the road from one span of the plaintiff’s viaduct to another and different span is not correct in fact. Thus the answer avers “that since the decree of the Supreme Court the said Harrisburg and Mechanicsburg Electric Railway Company has moved its tracks from the side of the public highway on which the same was located into the center thereof, so that every part and parcel thereof lies upon the public highway where the right of the Cumberland Valley Railroad Company is crossed.” In the face of this averment of the answer and the finding of the court it is vain to say that the bed of the defendant’s road had been removed to another span of the viaduct since the injunction was awarded. On the oral argument in this court defendant’s counsel, being asked what actual change had been made in the location of the railway track after the injunction was granted, replied that it had been moved about two feet nearer the center of the roadway. We do not consider that the allegations now made that the railway track had been moved into and was now laid upon, the bed of a public highway in actual use as such, is at all sustained. In the original answer to the plaintiff’s bill it was described as “ the New Cumberland road now vacated,” and the tenor of the testimony was to the same effect. The depositions taken under the rule for the attachment do not show that there was any change as to the subject of contention from the matter contested on the trial of the merits.

Decree affirmed and appeal dismissed at the cost of the defendant.