Appeal of the Western Pennsylvania Railroad , 99 Pa. 155 ( 1882 )

Mr. Justice Sterrett

delivered the opinion of the court, January 2d 1882.

The right of the Pittsburgh and Western Railroad Company, under its charter and ordinances of the city of Allegheny, to locate and construct its railroad along the Allegheny and Ohio rivers, within said city, from the eastern to the western boundary thereof, has been so conclusively shown by the learned master in his able and exhaustive report, that it is unnecessary to add anything to the reasons given or authorities cited in support of that conclusion.

The Pittsburgh, New Castle and Lake Erie Railroad Company, which was succeeded in title by the appellee, was incorporated in September 1877, under the provisions of the act of April 4th 1868, and its supplements, with power to construct a narrow guage railroad from Allegheny city to the village of Wurtemburg, in Lawrence county, Pa. The company, immediately after its organization, commenced the work of construction, obtained from the city of Allegheny the right of way for a single or double track “ along the bank of the Allegheny river, or upon River avenue from the eastern terminus of the city to the east line of Sandusky streetand in less than two years had completed the greater part of its road outside the city limits. In August 1879, all its property, rights, franchises, &c., were sold by the sheriff and duly conveyed to the purchasers, who associated themselves as the Pittsburgh and Western Railroad Company, by which name they were incorporated in October of that year. The new company, having thus succeeded to all the property, rights and franchises of the Pittsburgh, New Castle and Lake Erie Railroad Company, took possession of the road and proceeded to complete the same. In the early part of January 1880, that portion thereof between the eastern line of Sandusky street and the borougli of Etna was opened for trade and travel.

The main contention of appellant was that the Pittsburgh and Western Railroad Company has no authority to extend its road west of the eastern line of Sandusky street, because its predecessor in title had located, marked and determined the route of the road, and by accepting the ordinance granting the right of way to the east line of Sandusky street had selected and finally fixed that point as its western terminus; and also, because the appellee, after acquiring title, had completed the road to that point, purchased property, and established its terminal depot there. On the other hand, it was contended that the western terminus of the road had never been definitely settled either by the original company or its successor; that it had always been the fixed purpose of both companies, while they respectively owned and controlled the road, to reach the western boundary of Allegheny city, as soon as the necessary consent thereto of the city councils could be obtained. After a careful consideration of the evidence bearing on this subject, the learned master found in favor of the appellee ; and in this we think he was clearly right. Without referring specially to the grounds on which his conclusions are based, it is sufficient to say that they are entirely satisfactory. The power to locate and establish the western terminus of the road in Allegheny city had not been exhausted by any act of appellant or its predecessor; and, by virtue of its charter and the ordinance of September 9th 3 880, granting the right of way to the appellees, it is clearly authorized to construct and operate its road along the banks of the Allegheny and Ohio rivers, or upon River avenue to the western boundary of the city, subject to the conditions and restrictions imposed by the ordinance last mentioned.

It is true the original company was chartered to construct a road “from the city of Allegheny,” «fee., but that clearly means from any point within the city. Moreover, companies chartered either under the act of 1849 or the act of 1868, are expressly authorized to extend their respective roads into any city, town or village named in their charter as a terminal point, provided that in the case of an incorporated city, the streets, lanes and alleys thereof, shall not be occupied by any such railroad without 'the consent of the corporate authorities first had and obtained. In tbis case such authority was expressly given by ordinance.

Independently of the foregoing conclusion, and on the assumption that the eastern line of Sandusky street had been selected and fixed by the company as the western terminus of its road, the learned master also held that the appellee is authorized to construct its road from the east line of Sandusky street to the western boundary of the city, either under the power contained in the ninth section of the Act of 1868, “ to construct such branches from its main line as it may deem necessary to increase its business and accommodate the trade and travel of the public,” or under the provisions of the Act of June 9th 1874, P. L. 282, in connection with the ordinance of September 9th 1880.

The branching power, given by the ninth section of the Act of 1874, is sufficiently broad and comprehensive to authorize the construction of the road in question as a branch; and there is no valid reason why it may not be constructed from the terminus as well as from any other point on the main line of the road. The letter, as well as the spirit of the section, justifies the construction put upon it by the master.

The Act of 1874 declares, “ That the proper authorities of any county, city, town or township of this state, respectively, be and they are hereby authorized and empowered to enter into contracts with any of the railroad companies, whose roads enter their limits, respectively, whereby the said railroad companies may relocate, change or elevate their railroads within such limits or either of them, in such manner as in the judgment of such authorities, respectively, may be best adapted to secure the safety of lives and property, and promote the interest of said-county, city, town or township ; and for that purpose the said authorities shall have power to do all such acts as may be necessary and proper to effectually carry out such contracts; ” &c. This is a general law, manifestly intended to provide for a class of cases in which, before the adoption of our present constitution, special legislation was frequently invoked. As the natural result of the rapid development of our material resources and growth of population, especially in our larger cities, the public interest, convenience and safety from time to time require changes both in the location and construction of railroads. The legislature, recognizing these facts, authorized the proper authorities of the respective municipal districts mentioned in the act to enter into contracts for making such changes as in their judgment may be best- adapted to secure the safety of life and property, and at the same time promote the interest of the particular municipality. The Ordinance of September 1880, which was accepted by the appellee and forms a contract' between it and the city of Allegheny, is carefully drawn, and its provisions well guarded with the view of securing the several objects contemplated by the Act of 1874. If, in the judgment of the city councils, the terms and conditions on which the right of way was granted, to the appellee were best calculated to secure the safety of life and property and promote the interest of the city, their right to make the contract cannot be questioned; and it is equally clear that the appellee was authorized to accept and carry out the provisions of the ordinance.

Wo think, therefore, that on either of the grounds stated and discussed at length by the master, the appellee has the necessary corporate authority to construct its road from the eastern to the western boundary of the city on the route specified in the ordinances granting the right of way.

The corporate right of the appellee, thus to locate and construct its railroad, being settled, the next question is whether, for the purpose of either a grade or overhead crossing, it has a right to appropriate any part of the strip of land claimed by appellant under title derived from the Commonwealth. The validity of appellant’s title, and its right to hold and use the strip of land known as the canal lot for railroad ■ purposes cannot be doubted. It has been definitively settled, by an unbroken line of decisions, that the Commonwealth acquired an absolute estate in perpetuity in the land taken and occupied for canal purposes; and by virtue of the Act authorizing the sale of the main line of the public works and sundry mesne conveyances, that title, which for all practical purposes was a fee simple, became vested in the appellant company: Comm. v. McAllister, 2 Watts 190; Haldeman v. Penna. R. R. Co., 14 Wright 425; Craig v. Allegheny City, 3 P. F. Smith 477; Robinson v. West. Penna. R. R. Co., 22 P. F. Smith 316. By subsequent legislation the appellant was authorized to construct and maintain on the bed of the canal a railroad with branches, etc.

While the company appellant is thus invested with an absolute title in fee to the canal lot, with the right to use the same for railroad purposes, it by no means follows that its rights are so sacred or exclusive that, under a proper exercise of the power of eminent domain, its property may not be subjected to an easement in favor of the appellee or any other railroad company. If a crossing can be effected, either at grade or by means of a viaduct, without materially interfering writh appellant in the exercise and enjoyment of its franchise, the right to make such crossing, upon paying or securing the payment of adequate compensation, cannot be doubted. As yet, appellant has not constructed a branch road at the point of the proposed crossing, but it is no doubt practicable to do so; and it is averred in the bill that in the judgment of its board of directors the time has come when a track should be built from low-water mark on the Allegheny river to the Pittsburgh, Ft. Wayne and Chicago Railway, by means whereof the company will have an outlet for its traffic to and from the river, as the Commonwealth had, when the canal was in operation. Assuming then that a transfer track will forthwith be constructed on the canal lot from the Pittsburgh, Ft. Wayne & Chicago Railway to low-water mark on the river, will the proposed crossing, by a viaduct at least twenty-one feet in the clear above low-water mark, supported by abutments located entirely outside the lines of appellant’s lot, materially interfere with the use and enjoyment of such transfer 'branch? The decided weight of the testimony is that it will not; and the finding of the master, concurred in by the court, is to the same effect. The decree is accordingly so framed that the appellee, in constructing its bridge across the lot in question, is required to place the same “ at such an elevation as to leave at least twenty-one clear feet between the lowest part of said bridge and the datum line of the city of Allegheny.” The decree further provides “that said bridge shall rest on abutments entirely astride of the lines of plaintiff’s property, and shall not be supported by any pier or other support resting on plaintiff’s land ; that defendant’s road and the whole width of ground taken at the crossing of plaintiff’s land shall not exceed twenty-four feet, and the length thereof shall be the width of plaintiff’s land, which is sixty-two feet, more or less.” And, in view of the future practicability or necessity for the appellant company to cross appellee’s road at grade, the court has also very properly secured to it that privilege, coupled with the right to make application to the court for a decree defining the terms and conditions upon which such grade crossing shall be constructed and maintained.

After a careful examination of the record we find nothing in the decree of which the appellant has any reason to complain.

Decree affirmed and appeal dismissed at the costs of the appellant.