Opinion by
Mr. Justice Mitchell,
The Railway Company appellant was formed by the merger of two passenger railway companies previously existing, one of the same name, chartered April 8, 1859, and the other called the Navy Yard, Broad Street and Fairmount Railway Company, chartered May 16, 1861. The validity of the merger under then existing laws having been questioned, an act of assembly was passed March 27, 1873, P. L. 435, confirming the merger, [277]*277providing for the surrender of certain corporate rights, and conferring other rights and making them exclusive. This act was solemnly accepted by the appellant by deed in the form prescribed by the act, filed in the office of the secretary of the commonwealth, April 8, 1873, and thus became the amended and operative charter of the consolidated company appellant.
It is argued that this was not in any sense a charter nor an amendment to a charter, but merely a contract between the legislature and the railway company by which the former confirmed certain rights other than those on Broad street, and the company abandoned its rights on Broad street, with a temporary license to run its cars thereon until Thirteenth and Fifteenth streets should be opened from time to time for six consecutive squares north or south of specified points. This claim however cannot be sustained. The act is in its nature and effect a grant of franchises, some positive and at least one negative privilege in the nature of an amended franchise, the right to abandon a part of the franchise to lay tracks on Broad street that was contained in the charter of the Navy Yard, Broad Street and Fair-mount Railway. The facts that the consideration to the state for passing the act was the surrender of other rights or franchises claimed by the company, and that the occupation of Broad street was terminable on specified contingencies, did not vary the nature of the act as a legislative grant of new franchises as well as a confirmation of others claimed under prior charters. Those charters were by the act continued and confirmed, as to all the franchises and powers of both companies, except so far as changed or taken away by the act itself, and of course the franchises so continued were accompanied with all the incidents, duties and obligations attached to them in the first instance.
The act of 1873 therefore is the operative and controlling charter of the appellant, but we must look for its grants and limitations, as well as for its burdens and obligations on the appellant, to those terms of the two original charters which remained unchanged and confirmed.
The charter of the original Thirteenth and Fifteenth Streets Railway provided in section 9 “ That the councils of the city of Philadelphia may from time to time by ordinances, establish such regulations in regard to said railway as may be required [278]*278for the purposes of paving, repaving, grading .... and the said company shall conform to the grades established by councils of the several streets and avenues traversed by the said railway. . . . The streets thus occupied by said company shall be by them kept in good order and repair at their own proper expense.”
The charter of the Navy Yard, Broad street and Fairmount Company provided in section 10, that “ the said company shall be compelled to keep in constant repair that portion of the street which they use and occupy, and (be) subject to such ordinances of councils as relate thereto, not inconsistent with this act.”
By both of these provisions the company is charged with the duty to keep in repair. Both provisions are general, applicable to all streets on which tracks are laid, and continuing, that is, applying from time to time whenever repairs may become necessary. The fact that part of Broad street at the time of the charter of the Navy Yard, etc., Company was required to be kept in repair by other parties who had privileges thereon, would not prevent the duty becoming incumbent on the appellant when circumstances should otherwise raise it. There is nothing therefore peculiar in regard to the situation of Broad which makes the duty of the appellant in regard thereto any different from that in regard to any other street upon which its tracks are laid.
The duty to keep the streets in repair being thus clear under either and both charters, two questions arise as to its extent. First, does it include the whole street from curb to curb between the points longitudinally where the line is laid on it, or is it restricted to the space between the tracks ? Secondly, does it extend to a practical repaving with a different and improved pavement?
First, the obligation to repair the whole street from curb to curb, if not expressly decided, has been so clearly foreshadowed as to leave little doubt of what the conclusion must be. Under the charter of the Thirteenth aud Fifteenth Streets Company the question could hardly arise, for the words are that the company shall conform to the grades of the streets traversed by the said railway and the streets thus occupied shall be kept in good order and repair. This so clearly means the whole of the streets [279]*279which the railway traverses that further elaboration seems to be unnecessary. But it is argued -that Broad street is only occupied by virtue of the franchise of the Navy Yard, etc. Co., and the obligation of that charter is only to keep in repair “ that portion of the street which they use and occupy,” which should be construed to mean that portion between the tracks. To this argument it would be sufficient answer that at most the words can only be claimed as doubtful and ambiguous, and in such cases all public grants are to be construed liberally in favor of the public and strictly against the grantee: Pittsburg R. R. Co. v. Bruce, 102 Pa. 23. But it is not necessary to resort to this rule. As already said the provisions of both the original charters in reference to keeping the streets in repair are general and applicable to all streets on which tracks are laid, and are meant to be of continuous application from time to time as circumstances may require. Both charters included the right to lay tracks on several streets and on different streets at different times, but neither looked to the occupation of the whole length of any of the streets named. The right was given to occupy certain portions longitudinally of the specified streets, and the corresponding duty was imposed of keeping those portions in repair. Whether the language used was as in the one case “ the streets traversed and occupied,” or as in the other, “ that portion of the street which they use and occupy ” the idea was the same, to wit, that the franchise to occupy and the obligation to keep in repair should be coextensive. In Pitts, and Birmingham Ry. Co. v. Pittsburg, 80 Pa. 72, a somewhat analogous case, where the question was not what part of the street but what kind of obstruction the company were bound to remove, the principle was well stated, that under the general law the obligation to keep the whole street in repair rested on the municipality, and that obligation the charter transferred to the company. So it is in the present case, whatever the duty of the municipality would have been as to repairs upon the streets where the tracks are laid, is now the duty of the railway company laying and using the tracks, and that plainly includes the whole width of the street.
But the duty does not rest on these provisions alone. It arises independently, but with equal eonelusiveness from other parts of the charter. Section 10 of the act of incorporation of [280]*280the Navy Yard etc.
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Opinion by
Mr. Justice Mitchell,
The Railway Company appellant was formed by the merger of two passenger railway companies previously existing, one of the same name, chartered April 8, 1859, and the other called the Navy Yard, Broad Street and Fairmount Railway Company, chartered May 16, 1861. The validity of the merger under then existing laws having been questioned, an act of assembly was passed March 27, 1873, P. L. 435, confirming the merger, [277]*277providing for the surrender of certain corporate rights, and conferring other rights and making them exclusive. This act was solemnly accepted by the appellant by deed in the form prescribed by the act, filed in the office of the secretary of the commonwealth, April 8, 1873, and thus became the amended and operative charter of the consolidated company appellant.
It is argued that this was not in any sense a charter nor an amendment to a charter, but merely a contract between the legislature and the railway company by which the former confirmed certain rights other than those on Broad street, and the company abandoned its rights on Broad street, with a temporary license to run its cars thereon until Thirteenth and Fifteenth streets should be opened from time to time for six consecutive squares north or south of specified points. This claim however cannot be sustained. The act is in its nature and effect a grant of franchises, some positive and at least one negative privilege in the nature of an amended franchise, the right to abandon a part of the franchise to lay tracks on Broad street that was contained in the charter of the Navy Yard, Broad Street and Fair-mount Railway. The facts that the consideration to the state for passing the act was the surrender of other rights or franchises claimed by the company, and that the occupation of Broad street was terminable on specified contingencies, did not vary the nature of the act as a legislative grant of new franchises as well as a confirmation of others claimed under prior charters. Those charters were by the act continued and confirmed, as to all the franchises and powers of both companies, except so far as changed or taken away by the act itself, and of course the franchises so continued were accompanied with all the incidents, duties and obligations attached to them in the first instance.
The act of 1873 therefore is the operative and controlling charter of the appellant, but we must look for its grants and limitations, as well as for its burdens and obligations on the appellant, to those terms of the two original charters which remained unchanged and confirmed.
The charter of the original Thirteenth and Fifteenth Streets Railway provided in section 9 “ That the councils of the city of Philadelphia may from time to time by ordinances, establish such regulations in regard to said railway as may be required [278]*278for the purposes of paving, repaving, grading .... and the said company shall conform to the grades established by councils of the several streets and avenues traversed by the said railway. . . . The streets thus occupied by said company shall be by them kept in good order and repair at their own proper expense.”
The charter of the Navy Yard, Broad street and Fairmount Company provided in section 10, that “ the said company shall be compelled to keep in constant repair that portion of the street which they use and occupy, and (be) subject to such ordinances of councils as relate thereto, not inconsistent with this act.”
By both of these provisions the company is charged with the duty to keep in repair. Both provisions are general, applicable to all streets on which tracks are laid, and continuing, that is, applying from time to time whenever repairs may become necessary. The fact that part of Broad street at the time of the charter of the Navy Yard, etc., Company was required to be kept in repair by other parties who had privileges thereon, would not prevent the duty becoming incumbent on the appellant when circumstances should otherwise raise it. There is nothing therefore peculiar in regard to the situation of Broad which makes the duty of the appellant in regard thereto any different from that in regard to any other street upon which its tracks are laid.
The duty to keep the streets in repair being thus clear under either and both charters, two questions arise as to its extent. First, does it include the whole street from curb to curb between the points longitudinally where the line is laid on it, or is it restricted to the space between the tracks ? Secondly, does it extend to a practical repaving with a different and improved pavement?
First, the obligation to repair the whole street from curb to curb, if not expressly decided, has been so clearly foreshadowed as to leave little doubt of what the conclusion must be. Under the charter of the Thirteenth aud Fifteenth Streets Company the question could hardly arise, for the words are that the company shall conform to the grades of the streets traversed by the said railway and the streets thus occupied shall be kept in good order and repair. This so clearly means the whole of the streets [279]*279which the railway traverses that further elaboration seems to be unnecessary. But it is argued -that Broad street is only occupied by virtue of the franchise of the Navy Yard, etc. Co., and the obligation of that charter is only to keep in repair “ that portion of the street which they use and occupy,” which should be construed to mean that portion between the tracks. To this argument it would be sufficient answer that at most the words can only be claimed as doubtful and ambiguous, and in such cases all public grants are to be construed liberally in favor of the public and strictly against the grantee: Pittsburg R. R. Co. v. Bruce, 102 Pa. 23. But it is not necessary to resort to this rule. As already said the provisions of both the original charters in reference to keeping the streets in repair are general and applicable to all streets on which tracks are laid, and are meant to be of continuous application from time to time as circumstances may require. Both charters included the right to lay tracks on several streets and on different streets at different times, but neither looked to the occupation of the whole length of any of the streets named. The right was given to occupy certain portions longitudinally of the specified streets, and the corresponding duty was imposed of keeping those portions in repair. Whether the language used was as in the one case “ the streets traversed and occupied,” or as in the other, “ that portion of the street which they use and occupy ” the idea was the same, to wit, that the franchise to occupy and the obligation to keep in repair should be coextensive. In Pitts, and Birmingham Ry. Co. v. Pittsburg, 80 Pa. 72, a somewhat analogous case, where the question was not what part of the street but what kind of obstruction the company were bound to remove, the principle was well stated, that under the general law the obligation to keep the whole street in repair rested on the municipality, and that obligation the charter transferred to the company. So it is in the present case, whatever the duty of the municipality would have been as to repairs upon the streets where the tracks are laid, is now the duty of the railway company laying and using the tracks, and that plainly includes the whole width of the street.
But the duty does not rest on these provisions alone. It arises independently, but with equal eonelusiveness from other parts of the charter. Section 10 of the act of incorporation of [280]*280the Navy Yard etc. Ry. Co. provides that “the said company shall be compelled to keep in constant repair that portion of the street which they use and occupy, and (be) subject to such ordinances of councils as relate thereto.” This includes existing as well as future ordinances, and among those existing at the date of the charter was the general ordinance of July 7, 1857 (Ord. 1857, p. 248), which provided that all passenger. railroad companies should be “ at the entire cost and expense of maintaining, paving, repairing and repaving that may be necessary upon any street .... occupied by them.” This, as was well said by Thayer, P. J., in Phila. and Gray’s Ferry Ry. Co. v. Philadelphia, 2 Weekly Notes, 639, means “not upon a portion of the street occupied but upon the whole street.” The subject was elaborately and very ably discussed in that case, and the opinion of Thayer, P. J., is cited with approval in Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. 444, where the present chief justice says: “ It has never been seriously doubted, nor can it be, that the duty to repair or to repave, when either is adjudged necessary, extends to the entire roadway from curb to curb.”
Secondly, that the duty to repair, where it exists, extends to the replacement of an old pavement by a new one of a different and improved kind was expressly held in Phila. v. Ridge Ave. Ry. Co., 143 Pa. 444 (471-2), where it was said by the present chief justice, “ The duties specified in (the company’s) charter were imposed with reference to the changes and improved methods of street paving which experience might sanction as superior to and more economical than old methods. In other words the company is bound to keep pace with the progress of the age in which it continues to exercise its corporate functions. The city authorities have just as much right to require it to repave at its own expense with a new, better and more expensive kind of pavement as they have to cause other streets to be repaved in like manner at the public expense.”
■ In the present case of Broad street the fact that the occupapation is terminable upon certain contingencies which may happen at any time and at the will of the city does not destroy the obligation. As a fact the occupation has already lasted some years, and from the nature o£ the surface of the ground and its existing uses, is likely to last some years longer, but [281]*281however this maybe it does not alter the mandate of the charter and the ordinances, to keep the street in repair so long as it is occupied.
A question is raised in the argument that the- appellant is not liable because the so-called repair or repaving of Broad street was in fact a first or original paving, and there is no obligation to pave in the first instance, as so much of the ordinance of July 7, 1857, as required paving of a street not previously paved, was repealed by the ordinance of April 1,1859, (Ord. 1859, p. 138.) There is nothing on the record however to show the fact now alleged. The appellant did not at any time offer to prove it, nor ask to have the jury pass upon it. The facts were practically treated as undisputed. The judge directed the verdict as a matter of law and there is no assignment of error to his action in so doing. Gen. Wagner for the plaintiff testified that the former pavement was partly cobble and partly macadam, and other witnesses speak of a paving with macadam in the center and cobble at the sides. Even if the whole street was macadamized it would not follow necessarily that it was not paved. That is" a question of intention. Some misapprehension seems to exist in the professional mind as to our recent decisions on this subject, and they have therefore been reviewed and the ratio decidendi discussed in Philadelphia v. Eddleman, opinion filed herewith, to which reference is made for all that is necessary to be said on the present point.
The only remaining assignments of error to be noticed relate to the exclusion of appellant’s offer to show damages by way of set-off from the improper method of paving Broad street, causing stoppage of the cars and consequent loss of profits. Passing by the question whether the offer was clearly within the exception to the general rule that a set-off in tort cannot be made to an action ex contractu, these offers substantially sought to raise the question of an abuse of the municipal authority and discretion. By the ordinance of 25th September, 1890, (Ord. p. 301) the councils instructed the director of public works to stop the running of the cars “ on Broad Street north from Glen-wood avenue until the said street is repaved in accordance with the notice to do such work served by him on the passenger railway company .... as required by the ordinance of July 7, 1857 ” etc. The ordinance of July 7, 1857, sec. 4, provides [282]*282that “ it shall be the duty of any company as aforesaid . . . . to pave or repave the highways, as hereinbefore provided, and should they refuse or neglect to do so for ten days from the date of such notice .... councils may forbid the running of any car or cars upon the said road until the same is fully complied with.” As heretofore shown the appellant is subject to the ordinance of 1857, and it thus appears that the act of stopping the cars while the repaving was being done was expressly authorized by that ordinance. It was not offered to be shown that the state of facts which justified the action of councils did not exist, to wit, the resolution for repaving, the notice to appellant to do its part, and the failure to do so in the time required. Appellant’s offer was to show that the work could have been done without stopping the cars, and therefore with less loss to appellant. But as the city was acting on its express legal rights, the offer was immaterial and irrelevant. It was not for appellant, or even the court and jury to review the city’s exercise of its unquestionable discretion.
Judgment affirmed.