Struthers v. Dunkirk, Warren & Pittsburgh Railway Co.

delivered the opinion of the court,

The defendant corporation was authorized by its charter to construct a railroad from the northern boundary of the county of Warren to any point in the borough of Warren. With the consent of the borough authorities, the defendants, in August 1871, laid and constructed their railroad along the centre of High street, in the borough of Warren, directly in front of plaintiff’s premises. At the time the defendants’ road was being constructed, the plaintiff had erected and nearly completed, at considerable expense, a handsome dwelling-house on his said premises, and brought this' action of trespass on the case to recover damages for the inconvenience and annoyance occasioned by the building and operating of the railroad immediately in front of his residence. The pleadings are not given, but we gather from the charge of the court that the annoyance caused by the passage of trains, the cinders and smoke, and the hindrance to the passage of carriages, were the chief matters of complaint. However considerable these annoyances may be, they do not constitute a cause of action. There is no principle of law better settled in Pennsylvania, than that a common-law action does not lie against a corporation for consequential injuries occasioned by the construction and operation of its works: Monongahela Navigation Co. v. Coons, 6 W. & S. 101; Henry v. The Bridge Co., 8 Id. 85; N. Y. & Erie Railroad Co. v. Young, 9 Casey 175 ; O’Conner v. The City of Pittsburgh, 6 Harris 187 ; Watson v. The Pittsburgh and Connellsville Railroad Co., 1 Wright 469; Cleveland and Pittsburgh Railroad Co. v. Speer, 6 P. F. Smith 325; West Branch Canal Co. v. Mulliner, 18 Id. 357. It is equally clear that a railroad company may use a public street or highway for its road, when authorized by its charter to do so: Philadelphia and Trenton Railroad Co., 6 Whart. 25; Mifflin v. The Railroad Co., 4 Harris 182; Mercer v. The Pittsburgh, F. W. & C. Railroad Co.. 12 *286Casey 99; Commonwealth v. Erie & North East Railroad Co., 3 Id. 339. There is only one question remaining in the case, and that is, whether the court below should have received evidence to show that the company might have located its road upon another route, and thus have avoided laying the track upon High street. We are clearly of opinion that the learned judge was right in excluding evidence of this character, and also in his answers to the points in which the same question was presented. The discretion of the company in locating its road cannot be reviewed in this manner. The location was made in the exercise of an undoubted power. It was said in Parke’s Appeal, 14 P. F. Smith 137: “ Neither the court below nor this court has any right to interfere with the location made by the company on the score of preference, if any be felt. The only question is, whether it has or has not exceeded a discretion on the subject, apparent on the face of the act of incorporation.” See also N. Y. & Erie Railroad Co. v. Young, 9 Casey 175, and Cleveland & Pittsburgh Railroad Co. v. Speer, supra.

It was admitted by the learned counsel for the plaintiff, that the current of authority was against his view of the case, and we were urged to review the previous decisions of this court and recast them in harmony with the state of public opinion at the present day. We see no reason why the law should change to suit the barometer of public opinion. On the contrary, we see many reasons why it should not. And especially are we not disposed, for such reason, to overturn a long line of cases, solemnly decided, which have, to some extent, become rules of property, and upon the faith of which investments have been made and rights have grown up. It is our duty to apply the maxim stare decisis.

Judgment affirmed.