Pittsburg & Connellsville Railroad v. South-west Pennsylvania Railway Co. , 77 Pa. 173 ( 1875 )

Mr. Justice Merctjr

delivered the opinion of the court,

This is an appeal from a decree, in which, inter alia, it was adjudged that the appellee has the right, and shall be permitted to construct and operate its railroad across the roadway and tracks of the appellant, at grade, and across the adjoining lands of the appellant, on the location adopted by the appellee, and also to connect with the appellant’s road at or near said crossing; and that the appellant shall not interfere therewith.

The appellee was incorporated by the Act of 16th of March 1871; the appellant by the Act of 3d of April 1837. The line of the railroad of the latter had been located, constructed, and in operation many years before the appellee was incorporated. Where the road of the appellee as located crosses the appellant’s lands, it passes over the very ground on which the latter designs to build a round-house.

The question is, shall the appellee be permitted to cross at grade the road and lands of the appellant on the location designated and adopted by the appellee ?

It is claimed that this authority is given by the act of its incorporation. The third section of that act authorizes the company to construct a railroad “by such route as the directors may select,” between the termini of the road, and “ to connect with any other railroad already built or hereafter constructed.” After several other specific provisions, the 5th section declares “ in all other respects the company shall be regulated by the Act of 19th of February, A. D. 1849, and the several supplements thereto, and shall be entitled to all the advantages thereof, and of all other general laws of the Commonwealth, relative to railroad companies, with like privileges as if organized thereunder.” Neither the Act of 19th February 1849, nor any of its supplements, gives any specific authority to cross at grade. The appellee, however, invokes the aid of the 10th section of .the Act of April 4th 1868, P. L. 62, which declares “ companies formed under the provision of this act shall have the right to construct roads so as to cross at grade the track or tracks of any other railroad in this Commonwealth.” This act does not profess to be a supplement to any other act, but is entitled “ An act to authorize the formation and regulation of railroad corporations.” It is a general law under which all such proposed corporations may be organized. It therefore follows, under the 5th section of the act of its incorporation, the appellee possesses the same rights and privileges in regard to crossing the track of another railroad, as if organized, under the Act of April 4th 1868.

The 1st section of the Act of June 19th 1871, Purd. Dig. 288, pi. 39, gives authority to courts of equity to -inquire into any alleged injurious act done by a corporation, under a claim of right to the private rights of individuals, or to the rights or franchises of other corporations; and if such acts are found to have been committed without right, to restrain them. The second section of the same act declares “when such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this Commonwealth to ascertain and define by their decree the mode of such crossing, which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed, and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.

The appellee contends that inasmuch as it was incorporated prior to the passage of this act of 19th of June, it is not affected by those restrictive provisions, which would impair its vested rights ; but if it had at any time been so restrained, the restrictions are removed by the 1st section of article 17 of the Constitution of 1874, which declares, “ every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad.”

The ai’gument that the rights of the appellee are not affected by the Act of 9th of June 1871, by reason of its previous incorporation under the Act of 4th April 1868, does not strengthen its position in this case, even if it was correct in itself alone The appellant may invoke the application of the same principle, and thereby remove out of its way the foundation on which the argu- • ment rests. That foundation is the Act-of 1868. The appellant was incorporated more than thirty years before its passage, and twenty years before the adoption of the Amendment to the Constitution in 1857, authorizing the legislature “to alter, revoke or annul any charter of incorporation ” thereafter conferred. The Act of 1868 did not profess to apply its provisions to any corporation existing prior to its passagé. The constitution amendment of 1857 was expressly limited in its application to corporations “thereafter” created. The appellee was incorporated subject to this amendment. The appellant was not. With much stronger reason then, it may be claimed that the appellant is in no wise affected by the Act of 1868.

We think, however, the appellee was subjected to the operation of the Act of 19th of June 1871. Under the Act of 1868, the place where, and the manner in which, one railroad might cross another railroad at grade, were undoubtedly subjected to review by a court of equity. The fact that it might cross at grade gave it no perverse and arbitrary right to do so, regardless of the rights of the corporation injured thereby, and of the safety of the public. Every legislative grant is made with the implied reservation that it shall not injure others: Commonwealth v. Pennsylvania Coal Co., 16 P. F. Smith 42, Railroads are public highways. They cannot, therefore, -for all purposes, be considered private property only. As they possess a public character, they are subject to a public supervision.

Besides, we cannot presume the legislature ever intended to divest itself of the exercise of the police power of the state. The right to regulate railroad crossings naturally flows from that reserved power. It is by the exercise of the same power that the speed of trains is limited in populous districts. Nor is the position of the appellee strengthened by that portion of the Constitution of 1874 to which we have referred. It does not profess to declare whether the crossing shall be at grade or otherwise. It wisely leaves that to legislative action and judicial supervision to determine.

Then returning to Act of 19th of June 1871, we see it does not put the rights of the company desiring to cross the railroad of another, on a level with the rights of that other company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute. The one, that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other that crossings at grade shall be prevented whenever they can reasonably be avoided. The appellee then starts with both these obstacles placed in its way by legislative authority. They must be removed by evidence. The parties do not stand on an equality. The rights of the first occupant of the ground, in pursuance of law, are recognised as superior to those of the new claimant. In failing to give due weight to this superior right in the appellant, we think the learned judge erred, and thereby reached a conclusion not warranted by the statute.

Moreover, the evident intendment of the statute is to discourage crossing at grade. This is a question in which the company whose road is to be crossed, is not the only party liable to injury thereby. It involves the safety and security of the public. Crossings at grade are always attended with danger. As our population becomes more dense, travel and traffic will increase, and the injuries resulting from grade crossings will be multiplied. Each succeeding year will increase the necessity for avoiding them. Their .construction should now and henceforth be discouraged.

An examination of the testimony and of the facts found by the' judge, who also acted as master, satisfies us that the location fixed by the appellee, for crossing the road of the appellant, will work great injury to the latter; it will seriously interfere with the convenient use and occupation of their shops already erected, and will prevent the erection of other buildings which they propose to erect, and which are necessary for the proper exercise of its franchises; that it is reasonably practicable for the appellee to adopt another suitable location for crossing the road of the appellant on a shorter line; that the additional expense of constructing a road on such other location is insufficient to destroy its practicability; besides, to a considerable extent, it will be compensated by reducing the damages to the appellant; the grade will be somewhat heavier, but not so great as seriously to impair the value of the road. We are, therefore, led to the conclusion, 1st. That the mode of crossing designated by the appellee is not the one which will-inflict the least practical injury on the rights of the appellant; and 2d. That it is reasonably practicable to avoid a grade crossing.

The decree must therefore be reversed.

And now, to wit, January 4th 1875; this cause having come up by appeal from the decree of the Court of Common Pleas of Fayette county, and having been argued by counsel at Pittsburg, after due consideration thereof, it is ordered, adjudged and decreed, that the said decree of the Common Pleas be reversed and set aside, and that the bill be dismissed, and that the appellee pay-the costs below and of this appeal.