Pittsburg, Johnstown, Ebensburg & Eastern Railroad v. Altoona & Beech Creek Railroad

52 A. 13, 203 Pa. 108, 1902 Pa. LEXIS 659

• Court: Supreme Court of Pennsylvania
• Decided: May 19, 1902
• Docket: Appeal, No. 113
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

The decree entered on the cross-bill of the defendant and modified and affirmed by this court in 196 Pa. 452, was conclusive as to the right of forfeiture of the lease. The questions now raised concerning that right were then considered or should have been presented for consideration, and the adjudication is final as to them. The only question before the court on the application for an order for a writ of assistance was whether tbe decree had been complied with. To relieve from the hardship of a forfeiture of the lease, the time for the completion of the road was extended to January 1, 1902, more than nineteen months from the entering of the modified decree. In the meantime nothing substantial has been done, and it is admitted in the answer to the petition for a writ that the defendant does not intend to comply with the conditions on which an extension was granted. It was irregular to issue the writ before the expiration of the time. An application should have been made to this court to modify or rescind its order. But we are not disposed to set the order aside on this ground. As but five days remained in which to complete fifty or sixty miles of railroad, the defendant could not have complied with the conditions if he had desired to do so. It has already exhausted every claim to indulgence.

The order is affirmed at the cost of the appellant.