Pennsylvania Schuylkill Valley Railroad v. Philadelphia & Reading Railroad
Pennsylvania Schuylkill Valley Railroad v. Philadelphia & Reading Railroad
Opinion of the Court
It is unnecessary to refer in detail to the facts of this case. They are fully set forth in the reports of the master and opinion of the court below. The purposes of the bill were to determine plaintiff company’s right to a grade crossing over defendant company’s tracks and to regulate the exercise of that right, and, in the meantime, to restrain defendant from interfering with the construction of said crossing. The questions involved depended largely on facts and circumstances which to some extent are peculiar to the case ; and they appear to have received the careful consideration of both the learned master and the court below. The first four and sixth specifications, respectively, charge error in not sustaining exceptions to the master’s report and supplemental report. The remaining specifications complain of (1), the following portion of clause “ first ” of the decree : “ That the crossing now constructed at grade, as indicated by the draft submitted, filed with and attached to the master’s report, remain free from defendant’s interference for the use and purposes of the plaintiff,” and (2), the refusal of the court to dismiss the bill. The residue of the decree, providing for the maintenance of said crossing, regulating the time and manner of using the same, etc., is not the subject of complaint, except in so far as it may be embraced in the general assignment of error to the refusal of the court to dismiss the bill.
An examination of the record, with special reference to the several questions involved in the specifications above referred to, has failed to convince us that either of said exceptions to the master’s report should have been sustained, or that there is any error in that portion of the decree above quoted. Further discussion of the questions so fully and carefully considered and disposed of by the learned judge of the common pleas would serve no useful purpose. The facts found by the master and approved by the court are sufficient to sustain the decree. We find nothing in the record that requires its reversal.
Decree affirmed and appeal dismissed, with costs to be paid by appellant.
Reference
- Status
- in an opinion by Ermentrottt
- Syllabus
- Railroads — Grossing of one by another — Equity—Act of June 19, 1871. ' A court of equity will not, under the act of June 19, 1871, P. L. 1361, decree the construction of an overhead crossing, where the cost of such crossing would be so great as to prevent the construction of the railroad. Equity — Pleading—Railroads—Municipal consent — Waiver—Act 1871. A railroad company filed a bill under the act of June 19, 1871, P. L. 1361, in which they alleged that, “ under authority vested in them by law, tlrey have surveyed, ascertained, located, fixed, marked, and determined upon a route crossing defendants’ line for two branch railroads.” Defendants in their answer averred that they “have no knowledge or information otherwise than from the bill and cannot set forth as to their belief or otherwise as to whether the plaintiffs, under authority vested in them by law, have surveyed, located, fixed, marked and determined upon the routes for a branch railroad as in said paragraph set forth, and, so fat as the same are material, the defendants ask that the plaintiff be held to due proof of the said several allegations.” Held, that the question as to the right of plaintiffs to cross streets, and whether the consent of the municipality had been obtained for the construction of their branches, was not raised by the pleadings, and was not in the case. It seems that a railroad company is not required to obtain the consent of the municipality for the construction of its road across streets which are merely plotted, and not actually opened. It seems that the municipality, by failure to object, may waive the necessity of consent, in any case, at least as far as another railroad is concerned.