A railroad company will not be restrained from removing a siding leading from the railroad to plaintiff's warehouse which it is necessary to remove to enable an additional track to be constructed necessary for the operation of the road, where it appeared that no agreement existed between the parties relative to the siding and that another siding extended from the railroad to the property.31

Where a person is indicted for nuisance for maintaining a railroad track as a siding on a public highway, he may show that although the siding ran into his mill the railroad company from whose line it extended constructed, maintained, and repaired it.32

Section 32 of the Act of April 2, 1831, providing that a certain railroad should not prevent the owners of land bordering on the railroad from constructing lateral railroads to connect with the railroad, etc., does not authorize an individual to lay railroad tracks for a siding on a public highway.33

A railroad company will not be restrained from using a certain derailing switch adjoining a township road and from making further crossings over the public road and be compelled to furnish lamps and electricity for lighting a passage under an overhead crossing, where from the evidence it appeared that defendant under its agreement with the township was ready to furnish electricity for lights, but complainant failed to furnish lamps as required by the contracts; that the switch did not belong to defendants, and the other complaints do not amount to such a breach of the contract as to justify interference.34

A railroad company bought a strip of ground in a borough and laid two tracks, after which the borough laid out a plan with streets crossing the railroad and crossings were made and kept up by the railroad. Subsequently the railroad company proceeded to lay additional tracks on its land. It was held that the railroad company had the right to lay the addi

31 Wood v. Philadelphia, Wilmington & Baltimore R. R., 8 Del. 321 (1901.)

32 Com. v. Greybill, 17 Super. Ct. 514 (1901.)

33 Com. v. Greybill, 17 Super. Ct. 514 (1901.)

34 North Versailles Township v. Union R. R., 33 Pitts. 410 (1903.)

tional tracks conforming to the grade of the street and would be granted an injunction restraining the borough from interfering with the laying of the tracks.35

Where the owner of land laid out a street upon his land, which was adopted by the borough but never opened, and built a railroad along the line of the street, subsequently transferred the railroad to a corporation without any conveyance in writing, and afterwards conveyed the land on which the railroad was built without any mention of the easement in the deed, the use of the right of way by the railroad at this time being open, notorious and visible to the grantee, it was held in an action by the railroad company against the grantee, that the purchaser of the land took it with only such notice of the easement as the actual use of the right of way, at that time would convey and if the railroad required any additional right of way, it must condemn and pay for the land. In addition it was held that the purchaser had the right to cross and recross the track, as the railroad as originally built was within the line of a public street of the borough.36

35 Pittsburgh & Connellsville R. R. v. Braddock Borough, 33 Pitts. 191 (1902.)

36 Chester & Delaware River R. R. v. Standard Steel Castings Co., 6 Del. 233 (1895.)

63. Mandamus is the appropriate proceeding to compel a railroad company to build an overhead bridge of sufficient width which was built to avoid a grade crossing in place of a bridge insufficient to accommodate the highway travel. Supervisors of the township may apply for the writ, but the application for the writ must be instituted in the county where the railroad company has its office and chief place of business.1

A writ of alternative mandamus awarded to compel a railroad company to rebuild portions of a public highway lying in three different municipalities which had been taken by it fortythree years before the filing of the writ will be quashed, where the road asked to be reconstructed lies in three different municipalities and only one of the municipalities by its proper officer is asking for its reconstruction.2

Indictment.

64. Where a railroad company has been acquitted on the trial of an indictment charging it with neglect to relocate and reconstruct several different portions of a public road, it cannot subsequently be convicted on an indictment charging it with neglect to relocate and reconstruct the whole of the same highway.3

1 Com. ex rel. v. Pennsylvania R. R. Co., 4 Dist. 362 (1895); 11 Montg. 52 (1895.)

2 Com. ex rel. v. Allegheny Valley R. R., 28 Pitts. 77 (1897); 6 Dist. 565 (1897.)

3 Com. v. Allegheny Valley Ry. Co., 21 Super. Ct. 188 (1902.)

Where a railroad company is indicted for maintaining an alleged illegal crossing over a country road and it appears that the laying of a second track at the point in question somewhat narrowed the traveled part of the road but it was disputed whether to such an extent as to impede travel, the question whether travel is impeded is for the jury. In such a case it is not an improper exercise of the discretion of the court to refuse to permit a map of the locality to be sent out with the jury where such map was not an exact representation of the height of an embankment at the crossing as compared with its length.*

Negligent Construction.

65. A railroad company cannot be held responsible in damages for the death of a person caused by the alleged negligent construction of an overhead bridge where it appeared that the railroad company had contracted with the borough to build a bridge in consideration of the borough vacating portions of certain streets which crossed its tracks at grade, and that the accident did not occur until long after the bridge had been completed and accepted by the borough.5

Reconstruction of Turnpike.

66. Where a railroad company was authorized to change the site of any turnpike, etc., upon assuming the burden of reconstructing such road longitudinally occupied, a corresponding duty to reconstruct the road falls upon a railroad company which succeeds by purchase to all its franchises and privileges. Rice, P. J., said: "The statutory duty of a railroad company to reconstruct a road taken up by it is a continuing duty; and if not performed by it, it devolves upon the railroad company which succeeds by purchase to its franchises and privileges and mere lapse of time will not absolve it from this duty, nor bar the Commonwealth.

"The offence in this case is not for taking possession of the highway in the construction of its road, but for the disregard

4 Com. v. Philadelphia, Harrisburg & Pittsburg R. R., 23 Super. Ct. 235 (1903.)

5 Smith v. Pennsylvania R. R., 201 Pa. 131 (1902.)

of its duty to forthwith reconstruct so as to provide a suitable highway in lieu of the one taken. It cannot therefore be compelled in this case to either remove the obstruction from the old road or to construct a new one. The sentence can go no further than to punish for the offence committed. That offence is the neglect to construct within a reasonable time. The performance of that duty cannot be specifically enforced by sentence on this conviction."

6 Com. v. Allegheny Valley Ry. Co., 14 Super. Ct. 336 (1900.)