Opinion by
Mr. Justice Stewart,
The judgment in this case can be sustained only as it can be made to appear that liability for the injury complained of attached to the defendant company prior to the lease of its road to the operating company. The action was for the recovery of damages for undue and unreasonable discrimination in the matter of furnishing facilities for transportation. The appellee not only admits that the action was based on the statute of June 4, 1883, P. L. 72, which prohibits such discrimination and allows recovery of triple damages for any violation, but insists upon it, in view of the contention made by appellant to the contrary. Without this, it is too apparent for argument that the action was so based, and there can be no question as to the sufficiency of the declaration for that purpose. That appellee was unduly and unreasonably discrimina bed against by the refusal of siding privileges, which under similar conditions had been allowed to others, is a fact established by the verdict. The governing question, however, remains — Where did legal liability for the injury attach? The defendant had constructed its road long before the plaintiff became an adjoining landowner. Fifteen years before she became such owner the defendant company in the exercise of a statutory right, leased its entire road to the Philadelphia & Reading Railway Company, which latter company has ever since continued to operate it. It is settled law in Pennsylvania that when a railroad company leases its road to another company, the former is exempted from liability for any default or negligence in the operation of the road by the lessee. [267]*267Pinkerton v. Pennsylvania Traction Co. et al., 193 Pa. 229. This exemption, of course, does not extend to liabilities incurred by the owning company prior to the lease. Whatever legal liability the owning company incurred before the lease and which remained undischarged, continued as an obligation of that company from which neither lease nor statute could discharge it. No authority is needed for so plain a proposition. When did the liability arise which the plaintiff is here seeking to enforce? There can be but one answer: — when the discrimination was practiced. When was it practiced? To this also there can be but one answer: — when plaintiff was denied facility, which under like conditions had been allowed to others. This was fifteen years after the defendant company had parted with the control of its road. How then could liability attach to the defendant company for the default? The effort of appellee is to refer the default to an antecedent original obligation resting on the defendant company to allow siding privileges to adjoining landowners. We know of no such antecedent obligation. The right to siding connection as specific privilege is purely statutory. Under our acts of assembly the owners of mills and manufactories may of right connect their private sidings with railroads in their vicinity. So much was decided in Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426. The right there spoken of, it is to be observed, is not a right incident to adjoining ownership, but to the ownership of mills and manufactories in the vicinity of the railroad; and the right is given whenever such ownership has associated with it the right, however acquired, whether through ownership of all the land between mill or manufactory and the railroad, or by privilege, through grant, license or otherwise of an intervening owner, to construct a siding from the mill or manufactory up to the line of the railroad. The one test is the right of ownership of the mill or manufactory and, with it, the right to construct a siding therefrom to the line of the railroad. When these concur the right to the connection follows. Mere ownership of land adjoining a railroad, without more, confers no such right as here claimed. The plaintiff only acquired the right to build a siding up to the line of defendant’s [268]*268right of way in 1905 when she purchased the land lying between her land on. which were her quarries and lime-kilns and the defendant’s right of way; and not until then was she in position to demand, under the statute, a connection with the railroad. That as we have seen was fifteen years after the defendant company had leased its road. Clearly the railroad company owed no antecedent statutory duty to the plaintiff in this regard. Nor did it owe any original duty distinguishable from the original duty it owed to every citizen of the commonwealth. All such duties by the act of leasing devolved upon the defendant’s lessee. Corporate liability for disregard of them attaches, of course, but it attaches only to the company that inflicts the injury. An examination of the case of Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424, cited and relied upon by appellee’s counsel, will show that it gives no support whatever to their contention in this regard. There the original company had engaged, for a consideration paid it, to construct its road to a point within a certain township. After building its road conformably to the agreement, it leased it to another company which, in reconstructing the road, avoided the point designated in the agreement. At the suit of a taxpayer of the township against both lessor and lessee, it was held that the change in the road had been improperly made, and that the lessor was a necessary party for the determination of the controversy, because it had incurred whatever liability there was before it leased the road. We are unable to see anything in the case now before us that this case illustrates in the remotest degree. Admittedly there was a distinct, express agreement, for a consideration which the lessor company had received to maintain the fine to a certain point, and this agreement antedated the lease. In the present case there never was any agreement, and the duty arose only after the defendant had leased its road. Without agreement to be observed, and without duty to be performed, no liability could arise. The only original duty that rested on the original company in this regard, was [269]*269the duty to treat all citizens of the commonwealth alike with respect to transportation facilities. Quite as much of an antecedent duty rested upon the lessor to see that all were treated alike with respect to rates of transportation; and yet appellee concedes that for discrimination in rates the lessee alone is liable. It is difficult to understand the logic that would exempt the lessor in the one case and make it liable in the other.
It is argued that even though the effect of a lease from one railroad to another is to exempt the owning company from liability for discrimination in transportation facilities, the rule cannot be applied in the present case because here the roads of lessor and lessee were not in fact connecting roads at the time the lease was executed, and the lease therefore was invalid, since the statute gives the right to lease only where the roads connect. In what has already been said no reference is made to the fact of an earlier equity proceeding in which this plaintiff sought and obtained a mandatory injunction against both the defendant company and the Philadelphia & Reading Railway Company as the former’s lessee, requiring them and each of them, to do the very thing for the nondoing of which the present action against lessor was brought, and which has since been done by the Philadelphia & Reading Railway Company pursuant to the decree against it obtained at the instance of the plaintiff.
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Opinion by
Mr. Justice Stewart,
The judgment in this case can be sustained only as it can be made to appear that liability for the injury complained of attached to the defendant company prior to the lease of its road to the operating company. The action was for the recovery of damages for undue and unreasonable discrimination in the matter of furnishing facilities for transportation. The appellee not only admits that the action was based on the statute of June 4, 1883, P. L. 72, which prohibits such discrimination and allows recovery of triple damages for any violation, but insists upon it, in view of the contention made by appellant to the contrary. Without this, it is too apparent for argument that the action was so based, and there can be no question as to the sufficiency of the declaration for that purpose. That appellee was unduly and unreasonably discrimina bed against by the refusal of siding privileges, which under similar conditions had been allowed to others, is a fact established by the verdict. The governing question, however, remains — Where did legal liability for the injury attach? The defendant had constructed its road long before the plaintiff became an adjoining landowner. Fifteen years before she became such owner the defendant company in the exercise of a statutory right, leased its entire road to the Philadelphia & Reading Railway Company, which latter company has ever since continued to operate it. It is settled law in Pennsylvania that when a railroad company leases its road to another company, the former is exempted from liability for any default or negligence in the operation of the road by the lessee. [267]*267Pinkerton v. Pennsylvania Traction Co. et al., 193 Pa. 229. This exemption, of course, does not extend to liabilities incurred by the owning company prior to the lease. Whatever legal liability the owning company incurred before the lease and which remained undischarged, continued as an obligation of that company from which neither lease nor statute could discharge it. No authority is needed for so plain a proposition. When did the liability arise which the plaintiff is here seeking to enforce? There can be but one answer: — when the discrimination was practiced. When was it practiced? To this also there can be but one answer: — when plaintiff was denied facility, which under like conditions had been allowed to others. This was fifteen years after the defendant company had parted with the control of its road. How then could liability attach to the defendant company for the default? The effort of appellee is to refer the default to an antecedent original obligation resting on the defendant company to allow siding privileges to adjoining landowners. We know of no such antecedent obligation. The right to siding connection as specific privilege is purely statutory. Under our acts of assembly the owners of mills and manufactories may of right connect their private sidings with railroads in their vicinity. So much was decided in Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426. The right there spoken of, it is to be observed, is not a right incident to adjoining ownership, but to the ownership of mills and manufactories in the vicinity of the railroad; and the right is given whenever such ownership has associated with it the right, however acquired, whether through ownership of all the land between mill or manufactory and the railroad, or by privilege, through grant, license or otherwise of an intervening owner, to construct a siding from the mill or manufactory up to the line of the railroad. The one test is the right of ownership of the mill or manufactory and, with it, the right to construct a siding therefrom to the line of the railroad. When these concur the right to the connection follows. Mere ownership of land adjoining a railroad, without more, confers no such right as here claimed. The plaintiff only acquired the right to build a siding up to the line of defendant’s [268]*268right of way in 1905 when she purchased the land lying between her land on. which were her quarries and lime-kilns and the defendant’s right of way; and not until then was she in position to demand, under the statute, a connection with the railroad. That as we have seen was fifteen years after the defendant company had leased its road. Clearly the railroad company owed no antecedent statutory duty to the plaintiff in this regard. Nor did it owe any original duty distinguishable from the original duty it owed to every citizen of the commonwealth. All such duties by the act of leasing devolved upon the defendant’s lessee. Corporate liability for disregard of them attaches, of course, but it attaches only to the company that inflicts the injury. An examination of the case of Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424, cited and relied upon by appellee’s counsel, will show that it gives no support whatever to their contention in this regard. There the original company had engaged, for a consideration paid it, to construct its road to a point within a certain township. After building its road conformably to the agreement, it leased it to another company which, in reconstructing the road, avoided the point designated in the agreement. At the suit of a taxpayer of the township against both lessor and lessee, it was held that the change in the road had been improperly made, and that the lessor was a necessary party for the determination of the controversy, because it had incurred whatever liability there was before it leased the road. We are unable to see anything in the case now before us that this case illustrates in the remotest degree. Admittedly there was a distinct, express agreement, for a consideration which the lessor company had received to maintain the fine to a certain point, and this agreement antedated the lease. In the present case there never was any agreement, and the duty arose only after the defendant had leased its road. Without agreement to be observed, and without duty to be performed, no liability could arise. The only original duty that rested on the original company in this regard, was [269]*269the duty to treat all citizens of the commonwealth alike with respect to transportation facilities. Quite as much of an antecedent duty rested upon the lessor to see that all were treated alike with respect to rates of transportation; and yet appellee concedes that for discrimination in rates the lessee alone is liable. It is difficult to understand the logic that would exempt the lessor in the one case and make it liable in the other.
It is argued that even though the effect of a lease from one railroad to another is to exempt the owning company from liability for discrimination in transportation facilities, the rule cannot be applied in the present case because here the roads of lessor and lessee were not in fact connecting roads at the time the lease was executed, and the lease therefore was invalid, since the statute gives the right to lease only where the roads connect. In what has already been said no reference is made to the fact of an earlier equity proceeding in which this plaintiff sought and obtained a mandatory injunction against both the defendant company and the Philadelphia & Reading Railway Company as the former’s lessee, requiring them and each of them, to do the very thing for the nondoing of which the present action against lessor was brought, and which has since been done by the Philadelphia & Reading Railway Company pursuant to the decree against it obtained at the instance of the plaintiff. The claim there made by the plaintiff was a distinct assertion of the validity of the lease which she here would assail; she obtained against the lessee the decree which compelled it to build' the siding across the railroad’s right of way to her land solely on the ground that it was lessee, and she reimbursed the lessee for the cost and expense of constructing the siding, as she was directed by the terms of the decree. She is now concluded by these facts from asserting the invalidity of the lease. “It is settled law,” says Tktjnkey, J., in McQueen’s App., 104 Pa. 595, “that a man who obtains or defeats a judgment by pleading or representing an act in one aspect, will be precluded from giving [270]*270it a different and inconsistent character in a subsequent suit upon the same subject.” To the same effect will be found Campbell v. Stephens, 66 Pa. 314; Aronson v. Cleveland & P. R. R. Co., 70 Pa. 68. The general rule in such cases is thus stated in 16 Cyc. 799, “A claim or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same, and the same questions are involved.” The plaintiff thus being estopped from questioning the validity of the lease, discussion on our part of the matter here sought to be raised is wholly unnecessary.
In support of the judgment it is contended that appellant is estopped by the decree in the earlier equity proceeding from asserting its nonliability in the present action for damages for unfair discrimination, inasmuch as by that decree the defendant company was adjudged in default with respect to furnishing plaintiff with siding privileges. It is undoubtedly a general rule that where in an equity proceeding the merits, or any facts material to the final determination of the controversy, have been considered and passed upon, such matters are as much res adjudicata as they would be by a judgment at law. Nevertheless, a certain distinction between a decree in equity and a judgment at law remains, for, as said in Larkins v. Lindsay, 205 Pa. 534, in determining what was or might have been involved in the decree, regard must be had to the reasons of the chancellor as well as to his decree. In the equity proceeding the Philadelphia, Harrisburg & Pittsburg Railroad Company the lessor company, was made codefendant with the Philadelphia & Reading Railway Company, the lessee. The facts material to the final determination in the case must be gained from an examination of the decree. It was as follows: “And now, 23 day of August 1907, it is adjudged, ordered and decreed that the defendant, the Philadelphia, Harrisburg and Pittsburg R. R. Co., and the Philadephia [271]*271and Reading Railway Co. shall and do proceed, without further delay forthwith to place in position, and construct, at a convenient point, opposite the adjoining land of the complainant, a switching or siding connection, and lay tracks therefrom across its right of way to the border of her land, in order that it may be connected with a siding to be constructed by said Margaret Moser, the complainant in the bill, and she is hereby authorized to connect her track with the said switching or siding connection. The cost price of the switching, frogs, necessary rails and other material requisite, and the expense of putting them in place by the defendants to be paid by the plaintiff.” All that was required to support such decree was that plaintiff should have established, to the satisfaction of the chancellor, that she was the owner of a mill or manufactory in the vicinity of the railroad, that the connection she asked for was reasonably practicable, and that her request for the privilege had been refused. These were the only material facts, and all outside of them, no matter how specifically passed upon by the chancellor, were only incidentally cognizable, and as to these estoppel cannot be asserted. “The judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar; or as evidence, conclusive between the same parties on the same matter directly in question in another court. But neither the judgment of a court of concurrent or exclusive jurisdiction, is evidence of any matter incidentally cognizable nor of any matter to be inferred by argument from the judgment.” This rule derived from the Duchess of Kingston’s case has been accepted and applied in this state without qualification: Hibshman v. Dulleban, 4 Watts, 183. The particular finding by the chancellor in the equity proceeding that is here relied upon as an estoppel, is the affirmation of the following request submitted on part of complainant, “That frequent and persistent demands, covering a period of more than two years, were made by the complainant, and on her behalf upon the defendants, for a switch connection or siding to be constructed on her [272]*272twenty-six acre tract, adjoining the right of way of defendants, for use in her business,’’ etc. Here we have' a finding that for two years before the case was tried the complainant had been repeatedly and persistently demanding of this defendant a siding connection, a matter of no consequence whatever in the issue then being tried, since all that was necessary to support the decree entered in the case was that the defendant, without respect to the time it occurred, had neglected or refused to accede to complainant’s demand. If there was evidence to support such finding as this in that case, it is manifest that it was introduced not for the purpose of establishing complainant’s right to a siding, but for the purpose of recovering damages covering this period of two years during which complainant was deified the siding. But the court having declined to pass on the question of damages, the evidence was left without relevancy, except as establishing the fact that complainant some time or other before filing her bill had made a demand of this defendant. As to this latter fact the decree is conclusive, since without it appearing the decree would hardly have been entered, but as to the time when the first demand was made, the finding is incidental, because not entering into the decree. In the present action two items of damage were claimed; the first being the excess in cost which plaintiff was obliged to pay for the transportation by wagons of the coal she required during the- two years next preceding the construction of the siding, amounting to $168.68. No effort was made to show that any demand at any time had been made of this defendant for the construction of the siding, aside from the introduction of the findings of the court in the equity proceedings, saving that plaintiff’s desire for a siding had been communicated to Mr. Wetzel, who it appears was the legal counsel of both railroads. If the finding did not conclude the defendant in this subsequent action, then it was no evidence of the fact sought to be established thereby, viz: that defendant company had neglected or refused a siding upon demand made before or [273]*273during the period when this item of damage is alleged to have been sustained; and it was incumbent on the plaintiff to establish such fact by competent evidence. We have examined the evidence with care and find nothing in it that would justify an inference that any request for a siding was ever made of this defendant. That the learned trial judge in submitting to the jury this branch of the case relied wholly upon the findings in the equity case, is apparent from his answer to the defendant’s second point, which was, “That the evidence in the case fails to show that any application was ever made by the plaintiff or her agents to the defendant for the installation of a siding in connection with her land.” The answer was, “In the light of the record of the bill in equity filed in No. 4, October Term, 1906, and the findings of fact and conclusions of law, and the decree, the point is refused.” This answer is the subject of the first assignment of error. The point should have been affirmed. This assignment for the reasons stated is sustained. The other item of damage claimed was the increased cost of the siding that was finally constructed, over and above what it could have been constructed for two years previous when the first demand for it is alleged to have been made. It was in evidence that in 1906 the Philadelphia & Reading Railway Company had submitted to the plaintiff an estimate of the cost of a proposed siding, that estimate being $400. It was further in evidence that for the siding constructed in 1908, the plaintiff paid to the Philadelphia & Reading Railway Company $969.08. The claim was for the difference, and for this recovery was had against the defendant. The decree adjudging it the legal duty of this defendant to install a siding was made August 23, 1907. True, this defendant made no attempt whatever to comply with that decree of the court, nor does the evidence disclose that any request was ever made of it to comply, or any complaint that it had not so complied, but on the other hand, the evidence shows that negotiations looking to the construction of the siding were conducted wholly and exclusively [274]*274with the Philadelphia & Reading Railway Company, which company in June, 1908, constructed and completed the siding. The cost of the siding, $969.08, was voluntarily paid by the complainant to the Philadelphia & Reading Railway Company. There is not the slightest evidence that in the construction of this siding there was any community of effort or interests between the two companies. . However conclusive this evidence might be against the Philadelphia & Reading Railway Company, it is not apparent how it could affect this defendant. The offer of the former in 1906 to construct it for $400 was not in any way binding on this defendant, nor was this defendant affected by what plaintiff paid the Philadelphia & Reading Railway Company for the siding, especially in view of the claim now made that it was paid under protest, reserving to the plaintiff the right to recover back excessive charges which the plaintiff claimed were made for various items. The whole transaction from the original offer to construct for $400, down to the final payment of the $969.08, was res inter alios. Admitting the binding force of the decree requiring the defendant to construct the siding, there was no evidence as to when the defendant’s liability before • the decree was entered began, and there was no evidence from which defendant’s liability for the increased cost of the siding could be derived. In any event it was incumbent on the plaintiff to show that increased cost resulted after the time when defendant’s liability to construct the siding arose. The evidence was wholly lacking in respect to when this liability began. As we have said, it could only have arisen upon demand made, and there was no evidence as to when that occurred. The fifth point, submitted by the defendant was as follows: “The defendant is not liable to the plaintiff in this action for all or any part of the cost of the installation of the siding in connection with her land by the Philadelphia and Reading Railway Co.” The refusal of this point is made the subject of the third assignment of error. This assignment, for the reasons stated, is also sustained. In view of what we [275]*275have said the other assignments of error do not call for present consideration.
The judgment is reversed.