Commonwealth v. Wilkes-Barre Etc. Ry. Co. , 127 Pa. 278 ( 1889 )


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  • Opinion,

    Mr. Justice Green :

    At the time of the rejected offer of testimony the commonwealth had already given in evidence the map showing the location of the railway upon Railroad street, at the point in controversy, and this map and the location which appeared upon it were made part of the rejected offer. At the end of the offer, also, the nuisance complained of was defined as follows, viz.: “ The nuisance consisting in so much of the track as diverges from the centre of the track to the southerly side thereof.” .The only manner in which it is claimed that the part of the track complained of was a nuisance at all, was in its not being laid in the centre of the street. It was not alleged nor offered to be proven that the structure of the track, or its position, in point of fact interfered with public travel in any respect. The alleged unlawful location of this *283small piece of connecting track, was the only element set up as establishing a nuisance at all. But it is very evident that this element is not established by any or all of the matters contained in the offer. The resolution of council, which it is said was violated, only provides that the track “ shall be laid in the centre or middle of the said street, with a street rail in such a manner that wagons, sleighs, vehicles of every description can conveniently cross and re-cross said street without hindrance at any time and at any point,” etc. A mere inspection of the map shows conclusively that if the track is properly laid as to its structure, it does not interfere with the public travel in any manner whatever. Its mere location cannot interfere in any degree with its being conveniently crossed and re-crossed. It is simply a continuation of the track of tbe railway, just as it is laid through the street, without any complaint of the manner of the structure. In addition to this the place in which this particular piece of track is laid is not Railroad street or any part of it. It is a wide open space formed by the intersection of five streets in which the individuality of each street is lost. The track is laid on the centre of Railroad street, up to the point at which that street enters the open space constituting the intersection of the several streets, and from that point the track is laid not upon Railroad street, but upon the open ground of the intersection. On the opposite side of this space where the track continues, there is a slight deflection from a straight line, to enter upon the private property of the company. But this cannot be regarded as in any sense a nuisance in itself, since the company has a necessary right to reach a track upon its own land as plainly as if it were a car house or a horse stable.

    In the absence of any evidence, or any offer of proof, to sIioav that the track complained of in fact interfered with the public travel, we are clearly of opinion that its mere location in the manner indicated on the map was not in any sense a violation of the resolution of council, and therefore not a nuisance.

    Judgment affirmed.

Document Info

Docket Number: No 230

Citation Numbers: 127 Pa. 278

Judges: Green, Mitchell, Paxson, Sterrett, Williams

Filed Date: 6/28/1889

Precedential Status: Precedential

Modified Date: 2/17/2022