Pittsburg & West End Passenger Ry. v. Point Bridge Co. , 165 Pa. 37 ( 1894 )

Opinion by

Mr. Justice McCollum,

The Point Bridge Company was incorporated under the general corporation act of 1874 for the purpose of erecting, constructing and maintaining a toll bridge and approaches thereto for public travel and accommodation “ from a point near the junction of the Allegheny and Monongahela river, across the Monongahela river to a point at or near the Lorenz Glass Works.” The bridge it was thus authorized to build and maintain constituted, when it was opened to public travel in May, 1877, a portion of the highway with which it was connected. It was, by the charter under which it was erected, dedicated to a public use, subject only to the right of the company to exact reasonable tolls for such use : Monongahela Bridge Company v. The Pittsburg and. Birmingham Railway Company, 114 Pa. 478; Rapho v. Moore, 68 Pa. 404; Penn Township v. Perry County, 78 Pa. 457; Erie County v. The Commonwealth, 127 Pa. 197 ; Commonwealth v. Central Bridge Co., 12 Cushing, 244, and Washer v. Bullitt County, 110 U. S. 564. Citations in this line might be multiplied indefinitely, but it is believed that the charter and the cases already referred to, justify the appellee’s contention that the Point Bridge is a public highway. Aside from the right of the company to demand and receive reasonable tolls from the traveling public for the use of it for the purpose for which it was erected, it does not differ from the ordinary highway constructed and maintained by the inhabitants of the district through which it passes. But the right to exact such tolls does not carry with it the power to prohibit such use of it by the public as is reasonably consistent with such purpose.

The Pittsburg & West End Passenger Railway Company was incorporated on the 27th of March, 1879, under the act of March 19,1879, P. L. 9. Its route was from the corner of Liberty and Fifth avenues, and upon Libertjr avenue, Fifth street, Penn avenue, Water street, Point Bridge, Carson, Main and Walnut streets to the Washington turnpike road. It proceeded •at once to construct its railway on this route, and, finding tracks upon the bridge adapted to the passage of cars over it, connected its tracks with them., It opened its railway for public travel on the 4th of July, 1879, operated the same by horse power and paid tolls to the bridge company until this contention arose in December, 1891.

The act under which the railway company was incorporated having been declared unconstitutional in Weinman v. Passenger Ry. Co., 118 Pa. 192, the company accepted the provisions of the Passenger Railway Act of 14th May, 1889, P. L. 211, and received new letters patent. By this acceptance the company became entitled to all the privileges, franchises and powers conferred by the later act upon corporations created under it. What are the powers, privileges and franchises thus conferred, so far as the same are applicable to this controversy? The act authorizes the formation of companies for the purpose of constructing, maintaining and operating a street railway upon any street or highway for public use in the conveyance of passengers by any power other than by locomotive. Do the words “any street or highway,” as used in this act, exclude bridges?

We have already seen that a bridge erected for public travel and accommodation is a public highway whether built and maintained by the inhabitants of the district or by a corporation authorized to demand tolls for passage over it. Surely it would be a narrow construction of these words which would exclude a bridge and thereby make it a terminus of the railway. If the bridges across the Schuylkill river in Philadelphia and the bridges across the Allegheny and Monongahela rivers at Pitts-burg are not highways within the meaning of the act, it signally fails to provide the facilities which are required for the public travel and accommodation. In all the cities and populous districts of the commonwealth where street passenger railways are necessary for easy access to and convenient travel in them there are bridges to be crossed, some of which are maintained by the municipality or district, and'some by corporations chartered for the purpose of erecting and maintaining them for public use. In view of these known conditions the natural and reasonable construction of the act of 1889 is that the streets or highways mentioned therein include the bridges connecting with and constituting portions of them. When the Pittsburg & West End Passenger Railwajr Company accepted the provisions of the act and acquired new letters patent, it was and for ten years previous thereto had been operating its railway by horse power on the route already described. The Point Bridge Company made no objection to the passage over its bridge of the cars of the railway company. The tolls were adjusted by an arrangement between the companies which was satisfactory to both. This arrangement continued until the railway company proposed to operate its road by electricity. It was the proposed change in the method of operating it that led to this litigation in which the bridge company contends that the railway company has no right to use the bridge in moving its cars over its established route. The consent of the local authorities has been duly given to the latter to operate its railway on that route and in the manner proposed. It has all the powers, franchises and privileges granted by the act of 1889 to street passenger railway companies. The title of the act is broad enough to authorize the incorporation of companies organized under the unconstitutional act of 1879. The use of the bridge in the manner proposed does not constitute a taking of or an injury to the property of the bridge company, in the exercise of the power of eminent domain. It is a use which is reasonably consistent with the purpose for which the bridge was erected, and is necessary for public travel and accommodation. We conclude therefore that under the legislation and with the municipal consent to which we have referred, the railway company has the right to operate its line across Point Bridge “ by any power other than by locomotive,” in such manner and on such terms as will protect the rights of the bridge company and the traveling public. The learned court below, after a careful inquiry into the facts and circumstances affecting the issue raised by the bill and answer, entered a decree which appears to be reasonable and just. It is a decree which carefully guards the rights of the bridge company, which properly regulates the use of the bridge by the railway company, and exacts from the latter the payment to the former of a toll rate, the adequacy of which is not questioned.

We have not overlooked the contention which denies to a court of equity, jurisdiction of the matter complained of, but we cannot assent to it. On the contrary we think the railway company applied to the proper tribunal for the relief sought.

The specifications of error are overruled. Decree affirmed and appeal dismissed at the costs of the appellant.