70. A railroad company incorporated under the general railroad Act of 1868, and its supplements, has no power to enter upon, occupy and cross the streets of a municipality without its consent. The express prohibition of Sec. 12 of the Act of 1868 which prevents "the occupation of a street without municipal consent" is in no sense repealed by Sec. 1, Art. 17 of the Constitution of 1874, which provides that "any corporation organized for the purpose shall have the right to construct and operate a railroad between any points within the State and to connect at the State line with railroads of other States." Dean, J., said: "The Constitution is to be interpreted with reference to previous legislation of the State and powers always previously exercised by the Legislature remain to them, unless expressly or impliedly prohibited. While one object of the Constitution probably was to encourage competition between carrying corporations it just as plainly sought to promote another object, that is by the prohibition of all local legislation to encourage self-government by the people under general laws providing for local control of their local affairs. It would require a very plain mandate of the Constitution to move us to interpret the section in question as one practically handing over to railroad corporations the authority to control, occupy and obstruct the streets and highways of a great city in disregard of the convenience of citizens. While the interests of the carrying corporation and the municipality are not in themselves antagonistic they may easily become so by selfishness and indifference to each other's rights. It is to the interest of

the citizen that his city should grow and expand; with its growth commercially and industrially the railroad thrives. This, however, is only sound theory; in practice the railroad without regard to the city very often assumes that its only interest is to make money for the stockholders. It is therefore of the utmost importance to the well being of the city, that it should control its means of local business and social communication. In no reasonable interpretation of Sec. 1, Art. 17 of the Constitution, having regard to the legislation then existing and other parts of the same instrument can we see that it intended with the Act of 1868 plainly before the convention to take away from the municipal government the control of its streets and highways." 1

A railroad may be constructed and operated on the streets of the City of Philadelphia by a corporation organized under the general railroad law of April 8, 1868, P. L. 65, if the consent of the city be given thereto.2

A city cannot confer the right to construct a railroad on a street upon corporations or individuals who have no authority from the Legislature to construct and operate a railroad.3

Authority given by statute to a railroad company to use a street, does not necessarily imply that the company has the right to the exclusive use of the street. In such a case the right is limited to an occupation reasonably demanded by the transaction of the business contemplated. The presumption that the corporation has taken the whole width of the right of way authorized by its charter has no application where the words of the grant imply merely a right of passage over a street. Thus the Act of March 20, 1860, P. L. 471, authorizing a railroad to construct its road "across or along such streets as it might find expedient to use," and the Act of March 29, 1871, P. L. 466, authorizing the use of so much of certain streets as might "be necessary for the construction of their

I Pittsburg v. Pittsburg, Carnegie & Western R. R., 205 Pa. 13 (1903); reversing S. C. 10 Dist. 541 (1901); 25 Pa. C. C. R. 425 (1901); 32 Pitts. 87 (1901); see also Weigold v. Pittsburgh, Carnegie & Western R. R., 208 Pa. 81 (1904.)

2 Philadelphia v. River Front R. R., 173 Pa. 334 (1896.) 3 Philadelphia v. River Front R. R., 173 Pa. 334 (1896.)

tracks, sidings and branches," do not express a right to the exclusive occupancy of the streets.*

Where a railroad company has been given the right to erect an elevated structure over the intersection of two streets, the railroad company has not the right to take the full width of sixty feet for its right of way as provided by the general railroad law, for the width of a right of way, nor will the company in locating the overhead structure be presumed to have taken the width of sixty feet. The company takes only a right of passage over the streets, and can occupy no more space than is reasonably necessary for the purpose of passage. The erection of a structure less than sixty feet in width is a definition by the company of its needs, and a construction by it of the municipal grant. Such a structure exhausts the grant, and nothing more can be done without a new grant. If the erection of such a structure involves no actual taking of the land abutting on the street or streets a release by the company of land not actually occupied, or within the limits of the right of way occupied by the structure, will prevent a recovery by the owner of such land."

Notwithstanding the charter of a railroad company granted in 1832 forbade it from locating its road on any turnpike further than to cross the same, the company may for its necessary purposes take the land occupied by a turnpike road. The Act of March 17, 1869, confers such right and is to be read into all charters granted prior to the general Act of 1849, P. L. 79.6

An injunction will not be granted where the plaintiff has delayed the filing of his bill until large sums of money had been expended by defendant in pursuance of a contract with a municipality, in which large public interests are involved, even if plaintiffs have a strict legal right.7

4 Penna. Schuylkill Val. R. R. v. Phila. & Read. R. R., 157 Pa. 42 (1893.)

5 Jones v. Erie & Wyoming Valley R. R., 169 Pa. 333 (1895.)

6 Philadelphia & Trenton R. R. v. Philadelphia & Bristol Pass. Ry. Co.,

6 Dist. 269 (1897.)

7 Keeling v. Pittsburg, Virginia & Charleston Ry., 33 Pitts. 133 (1902); affirmed in 205 Pa. 31 (1903.)

Municipal Control-Watchmen, etc.

71. It is a reasonable exercise of the police power of a borough to pass an ordinance requiring a railroad company to keep a watchman at its own expense at dangerous crossings within the borough limits, but where a crossing is in the open country and there is no evidence to show to what extent it is frequented such an ordinance cannot be sustained.

A municipality, incorporated under the Act of May 23, 1889, has no power to require a railroad company to provide and maintain electric or other lights at railroad crossings. An ordinance making such requirement is ultra vires and void.

A railroad company will not be enjoined at the suit of a property owner from the erection of a watch-box upon the sidewalk in front of his property, ordered to be erected by councils.10

Obstruction of Streets.

72. The Act of April 12, 1851, which requires a railroad company under penalty to remove an obstruction from a crossing "after any agent or other person in the employment of the company shall have received at least fifteen minutes' notice" of the desire of the parties interested to use the crossing, does not mean that the railroad company under all circumstances is bound to remove the obstruction within fifteen minutes after notice, but it means that the railroad company is entitled to "at least fifteen minutes' notice" and as much more as the circumstances of the particular case may require, with the exercise on its part of proper energy and the use of suitable means. "The statute was intended to quicken the diligence of the railroad company and protect the rights of the landowners along its line by requiring prompt and energetic action on the part of the company to keep crossings free from obstructions. But it was not intended to require impossible or unreasonable things, nor to subject a company to a penalty because the re

8 Com. ex rel. v. Philadelphia, Harrisburg & Pittsburg R. R., 23 Super. Ct. 205 (1903.)

9 Hazleton v. Lehigh Valley R. R., 10 Kulp 571 (1902); 11 Dist. 644 (1902.)

10 Ledger v. Philadelphia & Reading Ry. Co., 12 Dist. 689 (1903.)

moval of an obstruction within fifteen minutes after notice was physically impossible."

The notice provided by the Act must be given to an agent of the railroad company in the locality, or to some employee who has some connection with the operation of the railroad. Notice to a mere track-walker engaged in cutting weeds and grass within the right of way, is not sufficient.11

Under the Act of March 20, 1845, P. L. 191, the obstruction of a street crossing by a railroad company in unnecessarily stopping its cars thereon is unlawful.12

The obstruction of a city street by a railroad track upon which steam motive power is to be used must be authorized by the legislative branch of the municipal government; the consent of the chief of the bureau of highways is not sufficient even though the track was laid by a municipal contractor for the purpose of carrying out his contract with the city.13

Where an incline plane railway is built across a street, and the piers which support it are built upon lots belonging to the company in fee, and the structure does not rest upon it, or overhang any other person's property, either within or without the lines of the street, evidence that access to the property of a neighboring landowner is obstructed, is inadmissible; but evidence that a part of the abutment was so constructed that water was discharged against the brick wall of a house, so as to render the house untenantable, is admissible.14

Where a railroad company occupies a street of a city before a grade is established and their tracks prevent the proper drainage of the street and interfere with the general use of the street by the public and the railroad company offers to place the track in proper condition conforming to the grade of the street when established, the city cannot compel the railroad company to grade the entire width of the street in advance of any action of its own. 15

II Simon v. Baltimore & Ohio R. R., 173 Pa. 517 (1896.)

12 Todd v. Philadelphia & Reading Ry. Co., 201 Pa. 558 (1902.)

13 Denison v. Ryan, 10 Dist. 495 (1901.)

14 Hartman v. Pittsburgh Incline Plane Ry., 159 Pa. 442 (1894.)

15 Lake Shore & Michigan Southern Ry. Co. v. Wiley, 193 Pa. 496 (1899.)