The opinion of the court was delivered, May 13th 1867, by
Thompson, J.
— In January 1865 a decree was made in this case by the learned judge of the 12th Judicial District, holding a special court, after hearing on bill, answer and proofs against the defendant, covering pretty much the entire ground claimed for relief by the plaintiff’s bill; from which decree this appeal was taken by the defendant.
The learned judge filed with the decree an elaborate and able opinion, both on the law and the facts. But as the case had not been sifted by a master, we referred it to one appointed by us, with authority to report on the whole case ; to take further testimony, if he deemed it essential to a full understanding of the controversy, to define as accurately as possible the area of plaintiff’s ground covered by the dirt and debris from the defendant’s mine, its depth and superficies, with an estimate of its amount in cubic yards, and to report to the court in banc at the ensuing October Term at Pittsburg. During that term the report was [25]*25accordingly made and filed, and the case submitted without argument on part of the appellant, printed or oral, and without filing any exception to the report, although in substance it did not materially differ from the facts which were found by the learned judge and which were the cause of the decree appealed from, nor have any exceptions ever been filed to the master’s report. However, notwithstanding these several findings of the learned judge, and afterwards of the master, we have also examined the testimony with care, and agree with them in all material points. This being the result, we shall affirm the decree, with a single suggestion as to its execution, leaving that to be carried into effect by the court below, viz.: That on compliance by the defendant with the decree in other particulars, he shall be allowed to enter a rule to show cause why that portion of it requiring the removal of the deposits of coal-dirt, slate, refuse coal and other materials made by the defendant and lessees or employees within the limits of the right of way of the Lackawanna and Bloomsburg Railroad, should not be annulled or modified. If it be the bonS fide intention of the railroad company to occupy and use it as the bed of a second track or siding of their road, it would not benefit the plaintiff to have it removed to be replaced by other material in order to lay such track, and an unnecessary expense to the defendant. We will not, however, modify the decree in this particular at this time, but leave it to the court below to determine when the proper time arrives. Their proximity to the scene of action will enable them intelligently to supervise and do right in the matter.
The right of the Commonwealth to take private property without the owner’s assent on compensation made, or authorize it to be taken, exists in her sovereign right of eminent domain, and can never be lawfully exercised but for a public purpose — supposed and intended to benefit the public, either mediately or immediately. The power arises out of that natural principle which teaches that private convenience must yield to the public wants. This public interest must lie at the basis of the exercise, or it would be confiscation and usurpation to exercise it. This being the reason for the exercise of such a power, it requires no argument to prove that after the right has been exercised the use of the property must be held in accordance with and for the purposes which justified its taking. Otherwise it would be a fraud on the owner, and an abuse of power. Hence it is that no one can pretend that a railroad company may build private houses and mills, or erect machinery, not necessarily connected with the use of their franchise, within the limits of their right of way. If it could, stores, taverns, shops, groceries and dwellings might be made to line the sides of the road outside of the track — a thing not to be thought of under the terms of the acquisition of the fight of way. [26]*26The exercise of the right of eminent domain, whether directly by the state or its authorized gi’antee, is necessarily in derogation of private right, and the rule in that case is, that the authority is to be strictly construed: Dwarris on Stat. 750 ; 2 Casey 355 ; 3 Id. 339 ; 7 Harris 211. What is not granted is not to be exercised. When, therefore, the Lackawanna and Bloomsburg Railroad Company, under its charter, and the promoter of the private railroad under the Act of 1832, were authorized to take private property for the use of their roads, the rights they acquired were a right of way and facilities necessary to the efficient use of the right. They were not empowered to use the exclusive right of way granted to each for any other independent purpose than that for which it was granted. The fee remained in the private owner, and outside of the authorized use, which must be public or incidental to the public use, the proprietary right is in the original owner: 1 Barr 336 ; 8 Id. 294; 6 W. & S. 378; Redf. on Railways 69. Upon these principles, without further elaboration, we think the court were right in holding the defendant bound to remove the deposits of dirt placed by him or under his authority from both roads, and most assuredly from the ground covered by it outside of them.
We have before us the original petition and survey and the report of the jury for the private road in question; the former was for a road at grade, “ or on the ground,” excepting for the distance of 17 perches next the river; that to be raised from the ground on stilts. The jury of view appointed by the court reported in favor of the proposed road, as applied for and surveyed. That was a road on the surface — an inclined plane all the way. In 1856, the grade was entirely changed. In place of an inclined plane from the starting-point, at the tunnel, the incline was rather in the opposite direction. The road was elevated on stilts, or timbers, beginning a short distance from the tunnel and gradually rising from the ground until at its junction with the Lackawanna and Bloomsburg Railroad it was 18 to 20 feet above the old road, and on that structure a slope was erected from which to ship coal on that railroad. It was contended below -that the defendant and his lessees had a right to take up the old road and reconstruct it in this manner. No authority for this was shown, nor can there be. The proceedings in the court at the outset, resulting in the grant of a right of way, was the charter for the road, and unless we disregard the act, there is no authority to do anything other than is provided therein. A survey is to accompany the petition for a private railroad. That shows what the petitioner asks liberty to do. The courses and distances, grades and the like, are to be laid down .on the drafts, and if the road be allowed, that remains on file to define the rights acquired on the one hand and taken on the other. On [27]*27this proposed plan a view is granted and damages are assessed. It cannot be maintained, on any principle, that the right once granted on a proposed plan, the promoter may adopt any other. If he could, there is nothing to define his right or restrain his power, and he might pay trifling damages on one plan, and do infinite mischief to the owner of the land on another, without compensation. The whole act is against the assumption that the location as evidenced by the draft of survey and allowed by the jury may be disregarded at will. That proposition is incapable of maintenance for a moment.
Again, the original application was for a private road from the tunnel of the plaintiff in this proceeding to connect with the slackwater navigation at the river.
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The opinion of the court was delivered, May 13th 1867, by
Thompson, J.
— In January 1865 a decree was made in this case by the learned judge of the 12th Judicial District, holding a special court, after hearing on bill, answer and proofs against the defendant, covering pretty much the entire ground claimed for relief by the plaintiff’s bill; from which decree this appeal was taken by the defendant.
The learned judge filed with the decree an elaborate and able opinion, both on the law and the facts. But as the case had not been sifted by a master, we referred it to one appointed by us, with authority to report on the whole case ; to take further testimony, if he deemed it essential to a full understanding of the controversy, to define as accurately as possible the area of plaintiff’s ground covered by the dirt and debris from the defendant’s mine, its depth and superficies, with an estimate of its amount in cubic yards, and to report to the court in banc at the ensuing October Term at Pittsburg. During that term the report was [25]*25accordingly made and filed, and the case submitted without argument on part of the appellant, printed or oral, and without filing any exception to the report, although in substance it did not materially differ from the facts which were found by the learned judge and which were the cause of the decree appealed from, nor have any exceptions ever been filed to the master’s report. However, notwithstanding these several findings of the learned judge, and afterwards of the master, we have also examined the testimony with care, and agree with them in all material points. This being the result, we shall affirm the decree, with a single suggestion as to its execution, leaving that to be carried into effect by the court below, viz.: That on compliance by the defendant with the decree in other particulars, he shall be allowed to enter a rule to show cause why that portion of it requiring the removal of the deposits of coal-dirt, slate, refuse coal and other materials made by the defendant and lessees or employees within the limits of the right of way of the Lackawanna and Bloomsburg Railroad, should not be annulled or modified. If it be the bonS fide intention of the railroad company to occupy and use it as the bed of a second track or siding of their road, it would not benefit the plaintiff to have it removed to be replaced by other material in order to lay such track, and an unnecessary expense to the defendant. We will not, however, modify the decree in this particular at this time, but leave it to the court below to determine when the proper time arrives. Their proximity to the scene of action will enable them intelligently to supervise and do right in the matter.
The right of the Commonwealth to take private property without the owner’s assent on compensation made, or authorize it to be taken, exists in her sovereign right of eminent domain, and can never be lawfully exercised but for a public purpose — supposed and intended to benefit the public, either mediately or immediately. The power arises out of that natural principle which teaches that private convenience must yield to the public wants. This public interest must lie at the basis of the exercise, or it would be confiscation and usurpation to exercise it. This being the reason for the exercise of such a power, it requires no argument to prove that after the right has been exercised the use of the property must be held in accordance with and for the purposes which justified its taking. Otherwise it would be a fraud on the owner, and an abuse of power. Hence it is that no one can pretend that a railroad company may build private houses and mills, or erect machinery, not necessarily connected with the use of their franchise, within the limits of their right of way. If it could, stores, taverns, shops, groceries and dwellings might be made to line the sides of the road outside of the track — a thing not to be thought of under the terms of the acquisition of the fight of way. [26]*26The exercise of the right of eminent domain, whether directly by the state or its authorized gi’antee, is necessarily in derogation of private right, and the rule in that case is, that the authority is to be strictly construed: Dwarris on Stat. 750 ; 2 Casey 355 ; 3 Id. 339 ; 7 Harris 211. What is not granted is not to be exercised. When, therefore, the Lackawanna and Bloomsburg Railroad Company, under its charter, and the promoter of the private railroad under the Act of 1832, were authorized to take private property for the use of their roads, the rights they acquired were a right of way and facilities necessary to the efficient use of the right. They were not empowered to use the exclusive right of way granted to each for any other independent purpose than that for which it was granted. The fee remained in the private owner, and outside of the authorized use, which must be public or incidental to the public use, the proprietary right is in the original owner: 1 Barr 336 ; 8 Id. 294; 6 W. & S. 378; Redf. on Railways 69. Upon these principles, without further elaboration, we think the court were right in holding the defendant bound to remove the deposits of dirt placed by him or under his authority from both roads, and most assuredly from the ground covered by it outside of them.
We have before us the original petition and survey and the report of the jury for the private road in question; the former was for a road at grade, “ or on the ground,” excepting for the distance of 17 perches next the river; that to be raised from the ground on stilts. The jury of view appointed by the court reported in favor of the proposed road, as applied for and surveyed. That was a road on the surface — an inclined plane all the way. In 1856, the grade was entirely changed. In place of an inclined plane from the starting-point, at the tunnel, the incline was rather in the opposite direction. The road was elevated on stilts, or timbers, beginning a short distance from the tunnel and gradually rising from the ground until at its junction with the Lackawanna and Bloomsburg Railroad it was 18 to 20 feet above the old road, and on that structure a slope was erected from which to ship coal on that railroad. It was contended below -that the defendant and his lessees had a right to take up the old road and reconstruct it in this manner. No authority for this was shown, nor can there be. The proceedings in the court at the outset, resulting in the grant of a right of way, was the charter for the road, and unless we disregard the act, there is no authority to do anything other than is provided therein. A survey is to accompany the petition for a private railroad. That shows what the petitioner asks liberty to do. The courses and distances, grades and the like, are to be laid down .on the drafts, and if the road be allowed, that remains on file to define the rights acquired on the one hand and taken on the other. On [27]*27this proposed plan a view is granted and damages are assessed. It cannot be maintained, on any principle, that the right once granted on a proposed plan, the promoter may adopt any other. If he could, there is nothing to define his right or restrain his power, and he might pay trifling damages on one plan, and do infinite mischief to the owner of the land on another, without compensation. The whole act is against the assumption that the location as evidenced by the draft of survey and allowed by the jury may be disregarded at will. That proposition is incapable of maintenance for a moment.
Again, the original application was for a private road from the tunnel of the plaintiff in this proceeding to connect with the slackwater navigation at the river. Since 1856 this connection has been abandoned, and the connection changed to the Lackawanna and Bloomsburg Railroad, and the portion between that and the river permitted to fall into disuse. If we take into consideration, what is possible to have occurred when damages were originally assessed for the right of way for this road, that the advantages to the landowner in common with the public to pass over the road may have entered into the calculation, we perceive at once how great injustice might result from changing the road and its terminus, so as to render this impracticable. Nothing of this may have occurred, but it might, and may, if we yield the right to change the construction so as to change the location in point of fact at pleasure or according to the promptings of interest on part of the roadowner. The one party being irrevocably bound by a location which takes a portion of his property from him, the rule would be unjust which would permit the other to act in regard to it as he pleases. If the latter desires a different road than that which he has got, let him apply anew to the proper source of power for authority to make it. He will not get it otherwise.
Another object of preserving a survey of the road, as authorized, in addition to those already mentioned, was that the Commonwealth reserves the right to take such roads from the proprietors by paying their cost. If such a determination should occur in regard to a road situated as this, it would be a task of no little difficulty to identify it, and much greater to show any title to it.
I have not, nor did I intend to, elaborate a vindication of the able opinion of the learned judge below. It needs none, but simply to express our approval a little more specially than a mere assent to the results arrived at would do.
The decree of the court below is affirmed, to be executed as suggested, at the costs of the appellant.