hicles passing daily, that thirty-four scheduled trains, beside extra trains passed the crossing, and that it was practicable to build an overhead crossing, eight hundred feet long. It was held that the court below committed no error in granting an injunction.29

The evidence showed that there was no physical obstacle to the erection of an overhead crossing; that there were no adjoining owners of property whose property would be interfered with and that the cost of an overhead structure would not exceed twenty-five hundred dollars. The court reversed a decree for a grade crossing and ordered that the street railway company be enjoined from crossing the railroad company's tracks at grade.30

On a bill for an injunction to restrain the defendant railroad company from interfering with the maintenance of a street railway or trolley wire crossing defendant's tracks and praying the court to make a decree for the manner of constructing the railway over the railroad it appeared that the city in which the grade crossing was sought to be established contained a population of twenty-five thousand inhabitants; that at the proposed crossing one hundred passenger trains and nearly the same number of freight trains pass in twenty-four hours; that the electric railway company carries over three million passengers yearly; that the electric railway company has a grade crossing only twenty feet from the proposed crossing and another only four squares distant; that the proposed crossing is sought by the electric railway company solely to promote convenience in operating its road, and that it is reasonably practicable to avoid the grade by an overhead crossing. It was held that a grade crossing would not be allowed.31

The practicability of an overhead crossing is not to be determined by the financial ability of the road seeking to cross, but by the physical practicability of avoiding the grade cross

29 Baltimore & Ohio R. R. Co. v. Butler Pass. Ry., 207 Pa. 406 (1904.) 30 New York Central & Hudson River R. R. Co. v. Warren Str. Ry. Co., 188 Pa. 85 (1898.)

31 Union Railway Company & Chester Traction Co. v. Philadelphia, Wilmington & Baltimore R. R., 188 Pa. 115 (1898); 7 Del. 281 (1898), reversing 6 Del. 481 (1896.)

ing. Thus where the capital stock of a street railway company which carried annually three million passengers over a crossing distant three hundred and ninety-five feet from the proposed grade crossing was but $500,000 and the cost of avoiding the grade crossing by one overhead would be from $150,000 to $200,000, the financial inability of the company is not a test to determine whether an improvement to carry safely three million passengers each year is reasonably practical. A corporation which undertakes to carry safely three millions of passengers annually should provide a capital sufficient to build a superstructure which will not subject this multitude to avoidable risk at a crossing.32

Where it appears that a street railway company has two grade crossings over defendant's railroad tracks the mere fact that they are not of sufficient capacity to enable the company to quickly move its cars does not constitute such "imperious necessity" as would justify a court of equity in decreeing another grade crossing inasmuch as grade crossings are not to be established to promote the mere convenience of the railroad seeking to cross. The Act of 1871 is in effect a mandate to the courts to prohibit grade crossings unless under or over ones are physically impracticable and unless crossings be an imperious necessity. The courts have no power to determine how they shall be avoided or equitably to apportion the expense among those interested.33

Upon a bill to prevent a street railway company from crossing a railroad company's tracks at grade the fact that there are other grade crossings in the same city over which more trains pass than over the proposed crossing is no argument in favor of sanctioning the maintenance of another grade crossing of a dangerous character. 34

32 Chester Trac. Co. & Union Ry. Co. v. Philadelphia, Wilmington & Baltimore R. R., 188 Pa. 105 (1898); 7 Del. 281 (1898), reversing 6 Del. 481 (1896.)

33 Chester Traction Co. & Union Ry. Co. v. Philadelphia, Wilmington & Baltimore R. R., 188 Pa. 105 (1898); 7 Del. 281 (1898), reversing 6 Del. 481 (1896.)

34 Pittsburgh Junction R. R. v. Fort Pitt Str. Pass. Ry., 192 Pa. 44 (1899); 29 Pitts. 405 (1899.)

Where the undisputed evidence as to the topography of the neighborhood, the surroundings of the crossing, and the extent to which the latter is used by both companies, establishes that a grade crossing is exceedingly dangerous and it appears that the natural growth of the city and consequent increase of travel and traffic on the street and over the railroad will necessarily render the crossing more and more dangerous every year, a grade crossing will not be permitted.35

Where upon application for an injunction by a steam railroad company to prevent an electric railway company from crossing its tracks at grade it appeared that the public road on which the street railway was built for between three hundred and four hundred feet on each side of the railroad was almost level; that an overhead bridge presented no engineering difficulties in the construction or use and that the cost of an overhead crossing would be from seven to ten thousand dollars, the court will enjoin the street railway company from crossing at grade. Dean, J., said: "Our utterances on the question of grade crossings have been so frequent and emphatic that it ought not to be necessary to repeat them. In Railroad Co. v. Railroad Co., 150 Pa. 193; Penna. R. Co. v. Railway Co., 152 Pa. 116, and quite a number of cases following these we have held in substance that the manifest purpose of the Act of 1871 was to discourage grade crossings and to absolutely prohibit them where it was reasonably practicable to avoid them; that what is reasonably practicable under such circumstances is determined largely by what is physically practicable and not by what is practicable to the treasury of the road seeking to cross; that the cost of avoiding a grade crossing is a matter to be considered in projecting a new road and that then sufficient capital should be provided to avoid that which the law in effect condemned. And further we have held in all these cases that neither the street railway Act of 1889 nor any subsequent legislation repealed the crossing provision in the Act of 1871. As said by our Brother Green, in Railroad Co. v. Street Railway Co., 188 Pa. 74: The one test imposed by the statute is the

35 Pittsburgh Junction R. R. v. Fort Pitt Str. Pass. Ry., 192 Pa. 44 (1899); 29 Pitts. 405 (1899.)

reasonable practicability of the overhead crossing. If that is established other considerations become unimportant. We desire to announce again that we firmly adhere to the policy and to the rules and principles expressed in the decisions to which we have referred.” 36

Where the practicability of an overhead crossing is established and the expense to construct it but light compared with the danger to be avoided the court will not permit a grade crossing. Accordingly in a case where the practicability of an overhead crossing was established and the expense of constructing it but light, it appeared that the approaches for the overhead crossing would be elevated for some distance on each side above the level of the street on which property owners have constructed their buildings; the owners allege that such elevated structure on the highway imposed an additional servitude upon their property and they will not consent thereto; the traction company not having the right of eminent domain under the Acts of 1887 and 1889 cannot on payment of damages proceed with the construction in the absence of agreement. In holding that this fact had no weight in determining what is reasonably practicable as applied to a grade crossing under the Act of 1871, Mr. Justice Dean said: "The traction company in effect says we have no power under our charter to construct a reasonably practicable overhead crossing as required by law, therefore as to us a crossing except at grade is impracticable. But the reasonably practicable is not to be determined by want of corporate power to invade the rights of the property owner. The construction of the crossing is what the statute expressly says shall be regulated by the courts, and this with a view to avoid danger and protect the older franchise from injury by the younger one. The Act of 1889 gives the right to cross at grade, but then we are met by the Act of 1871 which says the court shall by its process prevent it if an overhead crossing be reasonably practicable. This leaves for the court the physical problem to be solved by the inference warranted from the character of the two roads, the business done

36 Williams Valley R. R. v. Lykens & Williams Str. Ry. Co., 192 Pa. 552 (1899), reversing s. c. 1 Dauph. 225 (1898.)

upon them, the topography of the territory and like facts. To go outside of this class and determine the reasonable practicability of a grade crossing because of the absence of corporate power to invade private rights would necessarily lead us to authorized disregard of the Act of 1871 or into supplying in the Act of 1889 a power which the Legislature has not granted. The Commonwealth has given to electric railway companies the right to lay their rails on the streets and highways with the consent of the municipal authorities and impliedly power to injure private property along such highways with the consent of the owners, for while the statute as to the last named is silent the Constitution is very expressive. But if the consent of either be denied we can neither authorize the companies to disregard the law nor supply a power which as yet they have not. After a thorough consideration we are determined to unflinchingly adhere to the rule announced in Perry County Railroad v. Newport, etc. Railroad, 150 Pa. 193; Penna. R. R. Co. v. Braddock Electric Ry. Co., 152 Pa. 116, and subsequent cases." 37

A bill was filed to prevent defendants from constructing a bridge over the tracks and property of the plaintiffs at a point where there was no street or highway, and also to prevent the construction of an overhead way across a street on which plaintiffs own property in fee. It appeared from the evidence that the plaintiff stood by while the tracks of defendant were being laid on an avenue nearly parallel to the tracks of the plaintiff. It further appeared that plaintiff, without objecting to a grade crossing, negotiated with defendant as to the manner of its construction, and that when its demands were acceded to objected to a grade crossing and suggested an overhead crossing which defendant adopted and in carrying out the suggestion expended $40,000, it was held that the injunction asked for was properly refused.38

The crossing company must show its authority. A railroad

37 Scranton & Pittston Traction Co. v. Delaware & Hudson Canal Co., 180 Pa. 636 (1897), reversing 1 Super. Ct. 409 (1896.)

38 Pennsylvania R. R. & Pittsburg, Virginia & Charleston Ry. v. Glenwood & Dravosburg Elec. Str. Ry. & Second Ave. Trac. Co., 184 Pa. 227 (1898.)