Vinton Colliery Co. v. Blacklick & Yellow Creek Railroad

Opinion by

This bill was filed to restrain the appellee railroad company, incorporated under the act of 1868, from taking lands of appellant under condemnation proceedings, because, as alleged, the right of eminent domain sought to be exercised was not for a public use, but for a purely private purpose. The right to thus proceed in equity is claimed under the act of 1871 and the authority of McCandless’s App., 70 Pa. 210; Edgewood Railroad Company’s App., 79 Pa. 257; Mory v. Railroad Company, 199 Pa. 152, and Deemer v. Bells Run Railroad Company, 212 Pa. 491. It is true equity jurisdiction was sustained in these cases for the general purpose stated, but solely upon the ground that the corporations in question, while possessing under their charter powers 'the right to appropriate lands for public uses, in point of fact were undertaking to condemn land for private purposes. The cases cited have gone this far and no farther. The charter powers of a corporation cannot be attacked in this manner, but must be inquired into in a proper proceeding to which the commonwealth is a party. *135This is the ruling principle of all the cases. The appellee is a railroad incorporated as a public service corporation and under its charter powers possesses the right of eminent domain. It may be compelled by law to perform its duties as a common carrier, and in a proper case its franchises may be forfeited for failure to do so. Questions growing out of the exercise of the powers granted cannot be raised in a proceeding under the Act of June 19, 1871, P. L. 1360, under which the inquiry is always limited to a consideration of the question, Does the corporation possess the power to do what it is attempting to do, and not whether it is exercising its powers in an improper manner. In the present case the appellee company has the prima facie right under its charter powers to do everything it is attempting to do, including the condemnation of lands for public use. When the railroad is completed and in operation, if it refuses to carry passengers, or to haul freight, or otherwise fails to perform its duties to the public, proceedings may and no doubt will be instituted to enforce these common-carrier obligations. In the present proceeding these questions do not arise except in an incidental way, and the inquiry relates solely to the use for which the land condemned is to be taken. If for a public use, the right of eminent domain attaches; if for a private purpose, no such power can be asserted against a landowner. The learned court below has found as a fact, “that it is the intent and purpose of the incorporators of defendant company to complete, equip and operate its railroad as required by law,” and that “public necessity demands the construction and operation of this road.” If these facts be true it necessarily follows that the use is a public one. This is an end of the case' unless it should now be determined that there was manifest error in the findings and conclusions stated in the opinion of the court below, and we find no warrant for so holding. Many of the assignments relate to the financing and management of the railroad by the lumber company during the period of construction and in the early stages of the enterprise, but these matters at most are only incidental to the real question involved, which is, Has the defendant company by whomsoever owned and operated, constructed a *136railroad, or is it constructing one for public use as a common carrier? The finding of the learned court below settles this question, and we see no sufficient reason to disturb it.

Decree affirmed at the cost of appellant.