Opinion,
Me. Justice Mitchell :
The question presented in this case, whether a turnpike company, by virtue of a charter under the general corporation act of 1874, specifying the termini of its road, can appropriate an existing highway, is one of very considerable importance.
Eminent domain is defined to be the sovereign power vested in the state, to take private property for the public use. The contention of the appellee is, that under the law of Pennsylvania, any five persons, only three of whom need be citizens, may constitute themselves a corporation, take possession of any public highway of the commonwealth, change it to a turnpike road, and thereafter pharge tolls for their private profit.
A claim which thus in effect completely reverses the definition and fundamental objects of the power under which it is sought to be exercised, may well challenge careful scrutiny into the basis on which it rests.
It has been settled, since the cases of Kensington Plan, 2 R. 445, and Philadelphia & Trenton R. Co., 6 Wh. 25, that property devoted to public uses, including franchises, is subject to eminent domain, and may be taken for other public uses; but it is equally settled that it cannot be so taken without legislative authority expressed in clear terms, or by necessary implication. Whether this rule has been correctly applied to the [633]*633facts in all the cases, is a question on which judgments may fairly differ, and have differed sometimes in this court, but in the long line of decisions from Stormfeltz v. Manor Turnpike Co., 13 Pa. 555, down to Pittsburgh Junction R. Co.’s App., 122 Pa. 511, the rule itself has never been questioned.
The appellee derives its power from a charter under the general corporation act of 1874. It is not claimed that its charter gives it any express authority to take the public road in question. Whether that act would authorize the issue of any charter granting an express power to take other public property or franchises, except incidentally, and to such extent only as would not destroy or substantially impair the existing public use, is, at least, extremely doubtful. The weight of judicial decision seems to be against such authority: Barber v. Andover, 8 N. H. 398; Springfield v. Conn. River R. Co., 4 Cush. 71; Com. v. Railroad Co., 14 Gray 93; Housatonic R. Co. v. L. & H. R. Co., 118 Mass. 391; B. & M. R. Co. v. L. R. Co., 124 Mass. 368; Re Petition of B. & A. R. Co., 53 N. Y. 574; Application of City of Buffalo, 68 N. Y. 167.
It is not necessary, however, to determine this point, as the present charter does not assume to grant such authority. It gives the termini only, and makes no mention of the intermediate route. “ It does not,” says the learned master, “ grant the right by express words to take and occupy the old road for the purpose of constructing the new one. Neither does it exclude or prohibit this defendant company from so doing.” But this argument overlooks the settled rule that a failure to grant is itself an exclusion. Omission is prohibition. And in this particular case, though further confirmation is unnecessary, the general rule is further confirmed by the fact that the omission was intentional, it appearing that the Executive refused to grant a charter with such express power.
We are left, therefore, to the consideration of the only other ground on which the claim can rest, that of necessary implication. The imperative and inevitable nature of the implication requisite has been laid down in all our cases, and nowhere more strongly than in some of the most recent and carefully considered: See Pittsburgh Junction R. Co.’s App.. 122 Pa. 511; Penna. R. Co.’s App., 93 Pa. 150; Penna. R. Co.’s App., 115 Pa. 517; Stormfeltz v. Manor Turnpike Co., 13 Pa. 555; [634]*634Cake v. P. & E. R. Co., 87 Pa. 307; Tyrone School District’s App., 22 W. N. 513.
The appellee’s charter gives only the termini of the proposed road, and is silent as to the intermediate route. The charter does not indicate the position of the termini relative to the old road, nor is the master’s report explicit as to this point, but it appears in the evidence that the starting place is on the old road, “at the terminus of the Bridgeport & Horseshoe Turnpike in East Lampeter township,” and the ending point is also on or near it, “ and end at the township line between East Lampeter and Leacock townships, near the village of Bird-in-Hand.” Assuming even that both termini are on the old road, the right to follow the course of that road between the two, would not be necessarily implied. As already said, the right of the new corporation to acquire an express authority under the act of 1874 is doubtful, and the right to create a necessity by its own act in fixing its termini, is equally so. But passing that, as the case does not call for its decision, it is entirely clear that the course of the old road is not the only and not even the most direct route between the given points. The master reports only that the line adopted for the pike, which is the bed of the old Philadelphia road, “ is very nearly direct between the termini; ” and it appears in the evidence that a straight road between the termini would not have occupied the old highway, though it would not have deviated far from it at any point. The intervening country offered no physical obstacles to a_new route, either perfectly straight or deflected to either side, for it was the fertile plain of the Lancaster valley. Notwithstanding the finding of the master, therefore, that “ draft No. 2, and the evidence, show it to be the only feasible, reasonable, and practicable route between the termini,” it is entirely clear from the evidence that this conclusion does not rest on any physical difficulties in the way of another route, but on what is the perfectly manifest animus of the appellee’s whole case, the saving of the expense of buying a new route through private property. This indeed is not disguised. There is scarcely a suggestion of any other ground on which the right claimed can be supported. How entirely insufficient this ground is, has been declared in Pittsburgh Junction R. Co.’s App., 122 Pa. 531, in terms so forcible and [635]*635so pertinent to the present case that I could not hope to improve upon them: “ The location claimed for defendant,” says the present Chief Justice, “ is a matter of economy, not of necessity. It can construct its road and reach its terminus by another route. It is true it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through plaintiff’s yard and cripple its facilities for handling its business, merely to save money. Upon this point, the language of our brother Gordon in Penna. R. Co.’s Appeal is so clear and forcible that I may well repeat it here : ‘ It is true that a franchise is property, and as such may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication, unless it arises from a necessity so absolute that without it the grant itself would be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience, or for the sake of economy.’ ”
This is decisive of the present case. There is no real ground set up, except of economy.
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Opinion,
Me. Justice Mitchell :
The question presented in this case, whether a turnpike company, by virtue of a charter under the general corporation act of 1874, specifying the termini of its road, can appropriate an existing highway, is one of very considerable importance.
Eminent domain is defined to be the sovereign power vested in the state, to take private property for the public use. The contention of the appellee is, that under the law of Pennsylvania, any five persons, only three of whom need be citizens, may constitute themselves a corporation, take possession of any public highway of the commonwealth, change it to a turnpike road, and thereafter pharge tolls for their private profit.
A claim which thus in effect completely reverses the definition and fundamental objects of the power under which it is sought to be exercised, may well challenge careful scrutiny into the basis on which it rests.
It has been settled, since the cases of Kensington Plan, 2 R. 445, and Philadelphia & Trenton R. Co., 6 Wh. 25, that property devoted to public uses, including franchises, is subject to eminent domain, and may be taken for other public uses; but it is equally settled that it cannot be so taken without legislative authority expressed in clear terms, or by necessary implication. Whether this rule has been correctly applied to the [633]*633facts in all the cases, is a question on which judgments may fairly differ, and have differed sometimes in this court, but in the long line of decisions from Stormfeltz v. Manor Turnpike Co., 13 Pa. 555, down to Pittsburgh Junction R. Co.’s App., 122 Pa. 511, the rule itself has never been questioned.
The appellee derives its power from a charter under the general corporation act of 1874. It is not claimed that its charter gives it any express authority to take the public road in question. Whether that act would authorize the issue of any charter granting an express power to take other public property or franchises, except incidentally, and to such extent only as would not destroy or substantially impair the existing public use, is, at least, extremely doubtful. The weight of judicial decision seems to be against such authority: Barber v. Andover, 8 N. H. 398; Springfield v. Conn. River R. Co., 4 Cush. 71; Com. v. Railroad Co., 14 Gray 93; Housatonic R. Co. v. L. & H. R. Co., 118 Mass. 391; B. & M. R. Co. v. L. R. Co., 124 Mass. 368; Re Petition of B. & A. R. Co., 53 N. Y. 574; Application of City of Buffalo, 68 N. Y. 167.
It is not necessary, however, to determine this point, as the present charter does not assume to grant such authority. It gives the termini only, and makes no mention of the intermediate route. “ It does not,” says the learned master, “ grant the right by express words to take and occupy the old road for the purpose of constructing the new one. Neither does it exclude or prohibit this defendant company from so doing.” But this argument overlooks the settled rule that a failure to grant is itself an exclusion. Omission is prohibition. And in this particular case, though further confirmation is unnecessary, the general rule is further confirmed by the fact that the omission was intentional, it appearing that the Executive refused to grant a charter with such express power.
We are left, therefore, to the consideration of the only other ground on which the claim can rest, that of necessary implication. The imperative and inevitable nature of the implication requisite has been laid down in all our cases, and nowhere more strongly than in some of the most recent and carefully considered: See Pittsburgh Junction R. Co.’s App.. 122 Pa. 511; Penna. R. Co.’s App., 93 Pa. 150; Penna. R. Co.’s App., 115 Pa. 517; Stormfeltz v. Manor Turnpike Co., 13 Pa. 555; [634]*634Cake v. P. & E. R. Co., 87 Pa. 307; Tyrone School District’s App., 22 W. N. 513.
The appellee’s charter gives only the termini of the proposed road, and is silent as to the intermediate route. The charter does not indicate the position of the termini relative to the old road, nor is the master’s report explicit as to this point, but it appears in the evidence that the starting place is on the old road, “at the terminus of the Bridgeport & Horseshoe Turnpike in East Lampeter township,” and the ending point is also on or near it, “ and end at the township line between East Lampeter and Leacock townships, near the village of Bird-in-Hand.” Assuming even that both termini are on the old road, the right to follow the course of that road between the two, would not be necessarily implied. As already said, the right of the new corporation to acquire an express authority under the act of 1874 is doubtful, and the right to create a necessity by its own act in fixing its termini, is equally so. But passing that, as the case does not call for its decision, it is entirely clear that the course of the old road is not the only and not even the most direct route between the given points. The master reports only that the line adopted for the pike, which is the bed of the old Philadelphia road, “ is very nearly direct between the termini; ” and it appears in the evidence that a straight road between the termini would not have occupied the old highway, though it would not have deviated far from it at any point. The intervening country offered no physical obstacles to a_new route, either perfectly straight or deflected to either side, for it was the fertile plain of the Lancaster valley. Notwithstanding the finding of the master, therefore, that “ draft No. 2, and the evidence, show it to be the only feasible, reasonable, and practicable route between the termini,” it is entirely clear from the evidence that this conclusion does not rest on any physical difficulties in the way of another route, but on what is the perfectly manifest animus of the appellee’s whole case, the saving of the expense of buying a new route through private property. This indeed is not disguised. There is scarcely a suggestion of any other ground on which the right claimed can be supported. How entirely insufficient this ground is, has been declared in Pittsburgh Junction R. Co.’s App., 122 Pa. 531, in terms so forcible and [635]*635so pertinent to the present case that I could not hope to improve upon them: “ The location claimed for defendant,” says the present Chief Justice, “ is a matter of economy, not of necessity. It can construct its road and reach its terminus by another route. It is true it would be expensive, but it is a mere question of money and engineering skill. It is not entitled to run through plaintiff’s yard and cripple its facilities for handling its business, merely to save money. Upon this point, the language of our brother Gordon in Penna. R. Co.’s Appeal is so clear and forcible that I may well repeat it here : ‘ It is true that a franchise is property, and as such may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication, unless it arises from a necessity so absolute that without it the grant itself would be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience, or for the sake of economy.’ ”
This is decisive of the present case. There is no real ground set up, except of economy. The master indeed finds that the old road, during part of the year, is in bad condition for travel; that the turnpike is really a continuation of the same use in a better form, and that the change will not work irreparable injury which should be enjoined. But these considerations are mere make-weights and of no validity. If the road is in bad condition there is an adequate remedy to compel its repair, but as it has been in use for a century and a half, there is a strong presumption that it is not altogether unsuited to the public requirements. But, however bad it might be, its 'condition would be no justification for taking it away from its owners, and the proposal to substitute a better article at a moderate price would not help the right claimed. It is the necessity for the new use, not the inadequacy of the old, that is the test of such a change. The rule as to enjoining irreparable injuries only, has no application to acts, especially corporate acts, entirely without authority, for which there is no adequate measure of damages at law. Such acts equity always enjoins.
On the whole case it is entirely clear that the appellee’s claim rests upon no real necessity, but only upon a convenience of [636]*636its own making and which has regard only to expense. The right, therefore, arises neither from express grant, nor from any necessary implication from the charter privileges, and hence does not exist at all. The injunction prayed for in the bill should be granted and made perpetual.
Decree reversed, and record remitted for decree in accordance with this opinion.
Me. Chief Justice Paxson and Me. Justice Geeen, dissented.