15. The true definition of eminent domain under the Pennsylvania constitution is, "The sovereign power vested in the State to take private property for public use, providing first a just compensation therefor." 1 How Exercised. 16. The appropriation of lands under the exercise of the right of eminent domain, must be the act of the corporation by a resolution adopted by the president and board of directors, and not the act of the president alone without corporate action.2 Land Can Only be Taken for Public Use. 17. A railroad company organized under the Act of April 4. 1868, will not be restrained under the Act of June 19, 1871, P. L. 1361, in the exercise of its right of eminent domain from locating its road on the land of another, unless it is clearly shown that such corporation is engaged in a private and not a public enterprise. The Millersburg Railroad Company located and was about to construct a line of railroad across the plaintiff's land. The I Trenton Cut-Off R. R. & Pennsylvania R. R. v. Newtown Elec. Str. Ry., 8 Dist. 549 (1899), per Yerkes, J. 2 Schaadt v. Ironton R. R., 22 Pa. C. C. R. 101 (1898); 6 North, 333 (1898.) plaintiff alleged that said railroad is proceeding in violation of law to construct and locate the road for private and not for public use. Reed, P. J., said in dissolving the preliminary injunction and allowing the construction of the road: “The question of what constitutes a public use is one of great practical difficulty, and no inflexible rule can be laid down for its determination. Where the exercise of the right of eminent domain is challenged on this ground, each case must furnish its own rule. The use, which is public, however, possesses some general characteristics which distinguish it from a private one. In the former the right is vested in the general public, and may be enforced by law by each individual member of society. It is a right held in common, and to be enjoyed on the same terms and conditions by all who may have occasion to avail themselves of it. But it does not follow that the use or benefit must be available to the whole public, or to any considerable portion of it. Nor that all persons must be benefited alike. The fact that the use may contribute largely to the advantage of some private enterprise does not detract from its public character. The general welfare of the people of the Commonwealth is promoted by private business enterprises which develop the resources of the State and add to the general wealth and prosperity. Convenient and adequate means of transportation are essential to their existence, and the common carrier which supplies them with such means is serving a public interest and use, and not a private business enterprise. We think the right of a common carrier to construct branches and spurs to connect a particular business concern or establishment with its main line is well settled in this State, and, on principle, it would seem that the same thing may be done by an independent corporation clothed with a like franchise. Where the trade and travel are believed to be sufficient to warrant the construction and equipment of a railroad to accommodate them, the courts ought not to be readily moved to enjoin the enterprise on the allegation that it serves no public need, or does not tend to promote the public welfare." 3 3 Rochester & Pittsburg Coal & Iron Co. v. Berwind-White Coal Mining Co., 24 Pa. C. C. R. 104 (1900.) The question whether a railroad was a bona fide public road, or a private road and not entitled to the right of eminent domain must be determined, under the Act of 1871 by the situation of affairs at the time the charter was granted whether it could serve a public purpose. The fact that the railroad did not perform its public duties is not sufficient to deprive the road of the right of eminent domain; it is only ground for forfeiting its charter.* Necessity for Taking. 18. A railroad company operating a single track railway cannot by a bill in equity restrain another railroad company from taking some of the plaintiff's land, where it appears that at the time the bill was filed the plaintiff was not engaged in laying a double track, and neither the bill nor the proofs show that a second track was necessary and it conclusively appears that the occupancy of the land was important to the defendant for the proper exercise of its corporate powers and privileges." Under the Act of March 17, 1869, giving railroad companies the right to take land by eminent domain in improving their road, a railroad company may condemn land for a second track, which deflects from the original route one and onehalf miles, runs around a mountain through which the original route is tunneled and makes the second track over two miles longer than the other, where it appears that the detour will greatly facilitate the movement of trains, and lessen the danger to traffic by cutting down a grade of sixty-seven feet per mile to thirty-seven feet, and relieving the company of the necessity of using a helper engine between the two points, the route designated being the only one between the two points which will provide an easier grade than that of the original line. Under the Act of April 3, 1872, relating to straightened or improved lines of railroad, the company will be permitted to retain the use of the original track while operating the new track.6 4 Windsor Glass Co. v. Union R. R., 32 Pitts. III (1901.) 5 Pennsylvania Schuylkill Val. R. R. v. Schuylkill Nav. Co., 167 Pa. 576 (1895.) 6 Tissue v. Pittsburg & Connellsville R. R., 12 Dist. 175 (1902.) Taking for Water. 19. Under the general railroad law of 1849 and its supplements, a railroad company has the right to condemn land to be used as a water station or reservoir for the storage of water for use in the operation of its road even although the land to be condemned does not abut on the railroad company's right of way. "Water is a material in one sense of the word, just as gravel or timber, but the Act of 1849 as well as the Act of 1856 evidently contemplated the use and storage of water by the railroad as a necessary part of the construction of the road for the purpose of running its locomotives. A water station necessarily means a place for the storage of water for use of the railroad. What those stations may be and how far they may extend is not declared in the Act. Often, perhaps generally, the reservoirs for the storage of water for use of the railroad locomotives are wooden or iron tanks but not necessarily so. Nor does the Act of Assembly provide or intimate how or what they shall be. It must be left to the reasonable discretion of the railroad authorities, governed by the necessities of the case. The Act of 1856, which provides for the tender of a bond as compensation for the taking of lands and of water and of water rights or materials is not conclusive, but it is a legislative construction that in the right to construct water stations, the Legislature meant to include the taking of waters and water rights under the power of eminent domain. might be well for the Legislature to define more clearly the rights of railroad companies in regard to water stations and waters and water rights; but in the case before us it seems to us that in making its reservoir-a reservoir being a necessary part of a water station-the defendant company is exercising a reasonable discretion in the manner in which it proposes to erect the works to meet a pressing necessity for the operation of the road."7 Turnpike Companies-Telephone Lines. It 20. A turnpike company and a trolley company, occupying 7 Smithko v. Pittsburg & Western Ry., 5 Dist. 543 (1896); 27 Pitts. 17 (1896.) the turnpike under a lease, have a property interest in the road which cannot be interfered with or encumbered under Art. I, Section 10 of the Constitution without just compensation first made or secured. The construction of a telephone line along the side of a turnpike the middle or side of which is occupied by a trolley company imposes an additional servitude upon the turnpike and trolley companies and will be enjoined until just compensation to them is made or secured.8 Nature of Estate Acquired. 21. One who owns the land on both sides of a right of way of a railroad cannot, under the Act of April 16, 1838, construct an overhead bridge without the consent of the railroad company. A railroad company in the exercise of its right of eminent domain condemned for the uses of its railroad a certain strip of ground and built a railroad thereon. The acquisition of this strip of ground completely severed the lot of plaintiff. Plaintiff used the ground lying on both sides of the railroad for the handling and storage of coal and wood. In the prosecution of this business he made use of the crossing at grade over the railroad but was desirous of acquiring a second crossing over the railroad not at grade but by means of a structure elevated in the air. It was not the purpose of the plaintiff, however, to abandon the use of the crossing at grade as he intended to make use of both crossings. McCarthy, J., in refusing to allow the elevated structure, said: "It may be taken as the well settled law of this Commonwealth that where a railroad company condemns land for railroad purposes, and the damages for such taking have been assessed and paid, the railroad acquires a complete title in the nature of a base or conditional fee, terminable on the cesser of the use for railroad purposes in the surface of the land, and so much of the land beneath the surface as may be necessary for the support of the surface, and coupled with that interest it acquires the right to exclusive possession of the land so 8 Lancaster & Susquehanna Turnpike Road Co. v. Columbia Telephone Co., 10 Dist. 322 (1900.) |