Edgewood R.R. Co.’s Appeal, 79 Pa. 257 (Pa. 1875)

Mr. Justice Woodward

delivered the opinion of the court, January 4th 1876.

No doubt is entertained that at the time of the organization of the Edgewood Railroad Company, the plaintiffs had such title to the land which the defendants have appropriated, as to enable them to maintain this bill. The authorities referred to on the argument fully vindicate the finding of the master on the facts reported.

Yoluminous as this record is, it presents but one significant question for discussion and decision. Can such a railroad as that which the facts found by the master prove the defendants to have built, be maintained under the provisions of the act “to authorize the formation and regulation of railroad corporations,” passed on the 4th of April 1868, and the supplement to it passed on the 28th of April 1871 ? It is alleged by the plaintiffs that these acts have been wrested from their intended purpose to secure a public benefit, in order to promote a purely private enterprise, and that the construction of their road by the defendants under the charter which they hold, has been a fraudulent evasion of the provisions of the statutes relating to lateral railroads.

The first section of the Act of 1868 authorizes any number of

citizens, not less than nine,.to form a company for constructing a railroad for public use in the conveyance of persons and property. The supplement permits any number of persons, not less than three, to form a company to construct, maintain and operate a railroad not exceeding five miles in length, for public use as provided for in the original act. In pursuance of this legislation, the defendants obtained their charter, the due legal form of which (except in an alleged inadequate description of the terminus a quo, not now material), is not contested. They have built and are operating a road forty-seven hundred feet in length connecting with the Pennsylvania railroad at a point midway between the Edgewood and "VYilkinsburg stations of that railroad, being fourteen hundred and fifty feet from each, and extending to a point on land leased by Dickson, Stewart & Co. for the defendants, from George R. Johnston, on the 31st of March 1873. The eastwardly portion of the road for the distance of seven hundred and eighty feet, as well as the eastern terminus, is on these leased premises, which include also the ground covered by the incline railway of the Hampton Coal Company, and extend to that company’s coal openings. The grant to the lessees was “for a right of way for their coal railroad, and for no other purpose whatever, except such other purposes as are necessary for the ordinary working of coal works, and with the privilege of erecting thereon a blacksmith’s shop, carpenter’s shop, and an engine-house, but no other buildings whatever.” The eastern terminus is in a ravine, which is simply a cave in the hills, surrounded by hills on both sides and at its eastern end, and the bed of the road at this point is one hundred feet below the level of the stratum of coal belonging to the Hampton Coal Company. All of the stockholders of the Edgewood Railroad Company are stockholders of the Hampton Coal Company, except J. McC. Creighton and Francis Ardary, and they can have an interest whenever they choose to pay for it. The railroad was projected and constructed with the primary object and design of connecting the Hampton mines with the Pennsylvania railroad, in order that the coal from those mines should reach a market. Indeed, the master has found that this was the only object of the enterprise. In view of any present improvements along the line, it is of no utility. It is wholly unnecessary for the conveyance of passengers both at present and in the future, and the ground adjacent to it can never be used for manufacturing purposes. It was urged before the master that under the authority conferred by the Act of 1868 to build branches, the road can be so extended as to develop a large and valuable coal field, containing some fifteen hundred or two thousand acres. This the master reports to be true. He finds that the Hampton Company’s coal will be exhausted in less than five years ; that by a subterranean route the road can be so extended as to open availably to market the

coal upon the lands lying between the.present eastern terminus and Johnson’s run; that it would be to the interest, both of the coal company and the railroad company, that some connection should be made with the unmined coal in the field as rapidly as the vein is taken out of the field and exhausted; and that “if the Hampton Coal Company should acquire no additional coal lands hereafter, then when that which they own would be exhausted, it would be the policy of and necessity for the Edgewood company to extend its road into the field, in order to realize a return of the outlay made.” The report then continues in these words : “ It appears to be immaterial whether the Hampton Coal Company purchase more coal, or the railroad-company extends its road; in either event, the value of the coal in the whole field is greatly enhanced, the value of the different tracts in the field equalized, and hundreds of acres made accessible for use that without the Edgewood railroad would have been locked up and inaccessible for the market. This then is where the railroad is of utility. The mining of 50,000 bushels of coal per day would give employment to hundreds of persons. They must have homes near the mines and food to live on. Their wages would be spent in the neighborhood for rents and subsistence. The value of the property would be enhanced thereby. All the owners of coal would be benefited by its increased value, and the public at large would be benefited by this coal field being brought into market, in.the like manner that they are benefited by other developments of the mineral wealth of the state.” Upon grounds thus stated, the master found that the road was constructed for public use, and that its maintenance and operation are authorized by law. Exceptions filed to the report by the plaintiffs were sustained by the court below, and a decree was made enjoining the defendants from constructing, maintaining and operating their road, upon the premises of the plaintiffs, and directing a restoration of the premises to the condition they were in when the grievances charged in the bill were committed. The case is here on appeal from this decree.

The legislation under which the rights of the defendants are asserted, confers large powers upon associations of individual citizens, the exercise of which may be capable of producing varied forms of mischief. The passage of the Act of the 19th of June 1871, therefore, was a wise and salutary measure of precaution. The first section of that act makes it the duty of the court in which any proceeding is pending where an injury is alleged to have been caused by a corporation claiming a right or franchise to do the act by which the injury is produced, to inquire and ascertain whether the right or franchise claimed by the corporation is actually possessed. When this suit was commenced, the defendants were engaged in constructing their railroad upon the land of the plaintiffs, and the complaint was that they were doing this.in vio

lation of law. It was alleged that a lateral railroad was being built for private purposes without compliance with the statutes authorizing such a road, and under cover of a charter obtained under the Acts of 1868 and 1871. If the facts warrant the charges in the bill, the jurisdiction of the Common Pleas was unquestionable, and was discreetly exercised. Such a jurisdiction is in contravention of no rule which preserves legislative authority from judicial invasion. That the control of the right of eminent domain rests with the legislature (Cooley on Const. Limitations 538), and that the degree of the public necessity for the exercise of that right is exclusively for their ascertainment (Smedley v. Irwin, 1 P. F. Smith 445), is undoubted. But there does not appear to be anything in this ease to require the application of any such principle. It is not necessary even to approach the question of legislative power to create this corporation, and to vest it with all the rights it claims. The inquiry is solely as to what has been the action of the corporation, and as to the extent to which the franchises it is exercising have been conferred.

The object for which the Act of 1868 was passed is unmistakable. It was to vest in voluntary associations of individuals, under definite, uniform and general rules, powers which had previously been given only by special acts of incorporation. It applied to railroad companies in the sense in which the term had always been commonly employed. Passenger railways were expressly excluded from its operation. The companies to be chartered under it were made subject to the provisions of the General Railroad Law of 1849, and not one word was contained in it by which the legislation in regard to lateral railroads could be affected. The Act of the 28th of April 1871, was a supplement to the Act of 1868, simply reducing the number of the corporators to three in the case of a' road not exceeding five miles in length. These corporators, however, were still to constitute a railroad company, subject to the terms of the oi'iginal act and to those of the Act of 1849. Provision for so short a road could only have been made in order to secure some general public good. The supplement was manifestly intended to apply to settled communities, with a population at least so moderately dense as to require more than primitive means of conveyance, and with industries so varied and diversified as to require more than primitive facilities for the transportation of the products of machinery, labor and land. It was passed to provide for the convenience and necessities of masses of men, and not to promote private fortunes or develop private property. The Commonwealth transfers to her citizens her power of eminent domain only when some existing public need is to be supplied, or some present public advantage is to be gained. She does not confer it with a view to contingent results which may or may not he produced, and may or may not justify the grant, as a projected speculation may prove

successful or disastrous. Provision of the most ample kind has been made to meet individual requirements. The lateral railroad statutes afford every necessary facility for developing private property and transporting its products. And there are substantial reasons why the field within which those statutes operate should not be invaded. Owners of lands are protected by safeguards in their provisions which do not shield them when public ends are to he promoted. They have the right to demand the interposition of those safeguards when private property is appropriated for strictly private use.

The facts found by .the master prove in the distinctest way that this railroad is a mere appertenance to the mines of the Hampton Coal Company. The reasons for his decision that it has been constructed for public use are speculative, strained and vague. They have in view remote and contingent conditions, of the realization of which nothing even of probability is shown by the report. The road is completed between the termini specified in its charter. The capital of the corporation has been nearly if not entirely expended. It cannot of course he said that it is impossible that new capital shall be subscribed, the hill that bounds the eastern terminus tunnelled, the coal lands beneath which the extension may be constructed developed, and industries created that, would make the enterprise of public importance and public use. But all these possibilities are too remote to be ground for anything beyond conjecture. To rest the legal’rights of parties on such chances would be simply to obliterate those rights. In its existing condition, not one element of public advantage has resulted from this road that would not be gained by the construction of any lateral railroad extending from a great highway like the Pennsylvania railroad to coal mines of the kind and capacity of those of the Hampton company. For the. distance of seven hundred and eighty feet, including the eastern terminus, the defendants are precluded from affording facilities for any business but their own by the very terms of the grant of the right of way they obtained from Johnston. They are confined to the use of the land for such purposes as are connected with the ordinary working of coal property. “ The conveyance of persons and property,” in the sense in which those words are used in the Act of 1868, would be out of the question. The connection with the Pennsylvania railroad is at a point fourteen hundred and fifty feet from any station, nearly one-third of the entire length of the Edgewood road, and the statement of the fact is alone sufficient to make any idea of using it for the conveyance of passengers preposterous. There is the coal of the Hampton company to be carried, and there is nothing else. ’

Hardly as the rule may bear on these defendants, it is the plain duty of the courts to prevent the perversion of enactments passed for one purpose in order to subserve other and inconsistent objects.

To every legal intent this road is a lateral railroad. The right and franchise which the defendants claim to construct, maintain and operate it, was not conferred by the Acts of 1868 and 1871, and the charter in pursuance of them which they have obtained. In reality it has been throughout the property of the Hampton Coal Company as exclusively as the incline railway, schutes and fixtures at their mines. It is no more within the general railroad legislation of the state than was the road which was enjoined by this court under the powers granted by the Act of the 19th of June 1871, in McCandless’s Appeal, 20 P. F. Smith 210. It has been built in sheer defiance of legal provisions, the due observance of which could alone have justified its existence, and its maintenance would be a fraud upon the law.

To prevent the chance of misconception, the statement is repeated that the question of the legislative power to grant the right of eminent domain to associations of individuals for corporate purposes, has not been considered. It may be added that nothing which has been said has been designed to affect, limit, or disturb the corporate organization or the general corporate power of the Edgewood Railroad Company. The points decided are briefly recapitutated:

I. When the bill was presented to the Common Pleas, the plaintiffs had title to the land the defendants had appropriated.

II. On this land the defendants have laid and are operating a lateral railroad for private use, without the observance of any of the forms prescribed by the lateral railroad statutes.

III. The Acts of 1868 and 1871 were passed to provide for the organization and regulation of railroad corporations authorized to construct railroads, subject to the provisions of the General Railroad Law of 1849, for public use.

IV. The charter of the defendants did not warrant the appropriation they have made of the land of the plaintiffs for the purpose to which they have applied it. They are trespassers, as they would be if, under cover of their charter, they had entered on the land to build a turnpike or open a mine.

V. It follows that the defendants do not possess the right or franchise to do the acts which have resulted in the injury of which the plaintiffs complain. And in the circumstances of this ease, under the Act of the 19th of June 1871, a bill for an injunction is the appropriate remedy for the wrong.

Decree affirmed, and appeal dismissed, at the costs of the appellants.