Opinion by
Mb. Cheep Justice Stebbett,
In its decree, the learned court below continued the injunction theretofore awarded, as to the greater part of the lot described in the bill, and dissolved the same as to the residue of said lot. This appeal is from so much of the decree as releases said residue from the operation of the injunction.
Among other things, the bill in substance avers that under its right of eminent domain, the plaintiff company took possession of the lot forty feet front on Mechanics street by 150 feet in depth, being lot No. 2 in block 19 on the town plot of the city of Scranton, on which it erected, for the purposes of its business, a building sixty feet front by 120 feet in depth, which it has continuously used for the purposes of its business; that the use of said lot is absolutely necessary to the business in which plaintiff is engaged, viz: furnishing the city of Scranton and the inhabitants thereof with a supply of pure gas; that its plant for the manufacture of gas, erected at an expense of over $200,000, is located on adjoining lots, and is separated therefrom only by the present right of way of the defendant company, and that said property, including the lot above described, is absolutely necessary for the supplying of gas to the public, and has so been used without let or hindrance thirty years and upwards last past; that the defendant company has instituted proceedings on the law side of the court for the purpose of taking possession, of said lot No. 2, etc.; and this is followed by a denial of the defendant’s right to take said property, and a prayer for an injunction, etc.
On the coming in of the answer, etc., the case was referred to a master who found substantially the following facts: Defendant’s railroad extends from the city of Wilkes-Barre, through the city of Scranton, to Green Ridge in Lackawanna county, a distance of over twenty miles, and is a connecting link between [93]*93blie Wyoming region of the anthracite coal field and the railroad system of the Delaware and Hudson Canal Company in the state of New York. An average of twenty-four passenger and seventy freight and coal trains pass over defendant’s road daily, and by reason of its constantly increasing traffic, its whole line has been double tracked, except for a distance of about 500 feet extending through lot No. 2 of plaintiff’s gas plant. This line of single track runs for some distance, in a measure parallel with the Lackawanna river, on the low lands lying southeasterly along said river, and at the foot of a steep bluff, rising from the interior curved line of the right of way of the railroad from twenty to thirty feet, and bounding on the northwest a plateau on which a built-up portion of the ■ city of Scranton is located. The line of defendant’s railroad, including the single track, may be said to describe a half circle, with a base of about 1,500 feet. Lying between this track and the river is the main plant of plaintiff’s gas works.
On the hearing, plaintiff introduced evidence to show the practicability of completing defendant’s double track system without appropriating lot No. 2 aforesaid, or any part of it. Three methods were proposed: (a) The construction of a tunnel underneath the plateau, and in the ■ neighborhood of the base line of the half circle described by the present track; (5) by the construction of an additional track for a distance of 1,600 or 1,700 feet, diverging from the present track in such manner as to avoid lot No. 2, leaving it between the tracks; and (c) by the construction of two tracks, substantially on the same line as that last indicated, by abandonment of the present track and right of way through plaintiff’s land, and the taking of a sufficient strip from lot No. 2 on the side furthest -from the gas works proper, and thus running lot No. 2, so to speak, up against plaintiff’s present land, and leaving lot No. 2, as thus moved, untouched.
The master reported that “ the tunnel route (a) is impracticable by reason of its expensiveness, as well as engineering difficulties.” After considering the methods of the other two routes proposed by plaintiff, and the attending difficulties, he concludes thus: “ While the defendant might operate its railroad after the completion of either the (5) or (c) method of accomplishing its double track system, yet the occupancy of lot [94]*94No. 2, for that purpose, by placing thereon an additional track immediately adjoining its present single one, as proposed by it at the time of filing this bill, is, from an engineering standpoint, both as regards construction and subsequent use by defendant, the most practicable and feasible method; and, in addition to this consideration, the defendant would be thereby saved in the item of construction alone, an expenditure of $62,000, as already indicated; and the use of Bridge and Scranton streets, as public highways at their present grades, would better sub-serve the needs of public travel.”
The master does not find that a double track at the point in question is imperatively necessary to the defendant company’s business, and, while he might possibly have so found from the evidence, it is quite apparent from his conclusions above quoted that there exists no necessity that impels defendant to take plaintiff’s land for its additional track. It is simply a question of economy or convenience, or both combined. This is not sufficient to justify the taking of property which has heretofore been acquired under the right of eminent domain and for many years devoted to public use by another corporation. As was said by Mr. Justice Gordon in Pennsylvania Railroad Co.’s Appeal, 93 Pa. 159: “ 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 will be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control. It may not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity such as this to be used as an excuse for the interference with, or extinction of previously granted franchises, would be to subject these important legislative grants to destruction on a mere pretense, in fact at the will of the holder of the latest franchise.”
After reciting the above quotation, Mr. Justice Paxson, in Pittsburg Junction Railroad Co.’s Appeal, 122 Pa. 511, employed language especially applicable to the case at bar: “ The location claimed for the defendant 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 [95]*95mere 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.” In Sharon Railway Company’s Appeal, 122 Pa. 588, the same learned Justice, reiterating the same principle, says, “ It is settled law and rests upon sound principles.” The same principle is reaffirmed in Groff’s Appeal, 128 Pa. 633, and again in Perry County Railroad Extension Co. v. Newport & Sherman’s Valley Railroad Co., 150 Pa. 200.
It may not be amiss to say that there is nothing new or exceptional in the rule that the test of the power to take by implication is “ a necessity so absolute that without it the grant itself would be defeated.” Implied powers in all cases rest on this basis.
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Opinion by
Mb. Cheep Justice Stebbett,
In its decree, the learned court below continued the injunction theretofore awarded, as to the greater part of the lot described in the bill, and dissolved the same as to the residue of said lot. This appeal is from so much of the decree as releases said residue from the operation of the injunction.
Among other things, the bill in substance avers that under its right of eminent domain, the plaintiff company took possession of the lot forty feet front on Mechanics street by 150 feet in depth, being lot No. 2 in block 19 on the town plot of the city of Scranton, on which it erected, for the purposes of its business, a building sixty feet front by 120 feet in depth, which it has continuously used for the purposes of its business; that the use of said lot is absolutely necessary to the business in which plaintiff is engaged, viz: furnishing the city of Scranton and the inhabitants thereof with a supply of pure gas; that its plant for the manufacture of gas, erected at an expense of over $200,000, is located on adjoining lots, and is separated therefrom only by the present right of way of the defendant company, and that said property, including the lot above described, is absolutely necessary for the supplying of gas to the public, and has so been used without let or hindrance thirty years and upwards last past; that the defendant company has instituted proceedings on the law side of the court for the purpose of taking possession, of said lot No. 2, etc.; and this is followed by a denial of the defendant’s right to take said property, and a prayer for an injunction, etc.
On the coming in of the answer, etc., the case was referred to a master who found substantially the following facts: Defendant’s railroad extends from the city of Wilkes-Barre, through the city of Scranton, to Green Ridge in Lackawanna county, a distance of over twenty miles, and is a connecting link between [93]*93blie Wyoming region of the anthracite coal field and the railroad system of the Delaware and Hudson Canal Company in the state of New York. An average of twenty-four passenger and seventy freight and coal trains pass over defendant’s road daily, and by reason of its constantly increasing traffic, its whole line has been double tracked, except for a distance of about 500 feet extending through lot No. 2 of plaintiff’s gas plant. This line of single track runs for some distance, in a measure parallel with the Lackawanna river, on the low lands lying southeasterly along said river, and at the foot of a steep bluff, rising from the interior curved line of the right of way of the railroad from twenty to thirty feet, and bounding on the northwest a plateau on which a built-up portion of the ■ city of Scranton is located. The line of defendant’s railroad, including the single track, may be said to describe a half circle, with a base of about 1,500 feet. Lying between this track and the river is the main plant of plaintiff’s gas works.
On the hearing, plaintiff introduced evidence to show the practicability of completing defendant’s double track system without appropriating lot No. 2 aforesaid, or any part of it. Three methods were proposed: (a) The construction of a tunnel underneath the plateau, and in the ■ neighborhood of the base line of the half circle described by the present track; (5) by the construction of an additional track for a distance of 1,600 or 1,700 feet, diverging from the present track in such manner as to avoid lot No. 2, leaving it between the tracks; and (c) by the construction of two tracks, substantially on the same line as that last indicated, by abandonment of the present track and right of way through plaintiff’s land, and the taking of a sufficient strip from lot No. 2 on the side furthest -from the gas works proper, and thus running lot No. 2, so to speak, up against plaintiff’s present land, and leaving lot No. 2, as thus moved, untouched.
The master reported that “ the tunnel route (a) is impracticable by reason of its expensiveness, as well as engineering difficulties.” After considering the methods of the other two routes proposed by plaintiff, and the attending difficulties, he concludes thus: “ While the defendant might operate its railroad after the completion of either the (5) or (c) method of accomplishing its double track system, yet the occupancy of lot [94]*94No. 2, for that purpose, by placing thereon an additional track immediately adjoining its present single one, as proposed by it at the time of filing this bill, is, from an engineering standpoint, both as regards construction and subsequent use by defendant, the most practicable and feasible method; and, in addition to this consideration, the defendant would be thereby saved in the item of construction alone, an expenditure of $62,000, as already indicated; and the use of Bridge and Scranton streets, as public highways at their present grades, would better sub-serve the needs of public travel.”
The master does not find that a double track at the point in question is imperatively necessary to the defendant company’s business, and, while he might possibly have so found from the evidence, it is quite apparent from his conclusions above quoted that there exists no necessity that impels defendant to take plaintiff’s land for its additional track. It is simply a question of economy or convenience, or both combined. This is not sufficient to justify the taking of property which has heretofore been acquired under the right of eminent domain and for many years devoted to public use by another corporation. As was said by Mr. Justice Gordon in Pennsylvania Railroad Co.’s Appeal, 93 Pa. 159: “ 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 will be defeated. It must also be a necessity that arises from the very nature of things, over which the corporation has no control. It may not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity such as this to be used as an excuse for the interference with, or extinction of previously granted franchises, would be to subject these important legislative grants to destruction on a mere pretense, in fact at the will of the holder of the latest franchise.”
After reciting the above quotation, Mr. Justice Paxson, in Pittsburg Junction Railroad Co.’s Appeal, 122 Pa. 511, employed language especially applicable to the case at bar: “ The location claimed for the defendant 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 [95]*95mere 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.” In Sharon Railway Company’s Appeal, 122 Pa. 588, the same learned Justice, reiterating the same principle, says, “ It is settled law and rests upon sound principles.” The same principle is reaffirmed in Groff’s Appeal, 128 Pa. 633, and again in Perry County Railroad Extension Co. v. Newport & Sherman’s Valley Railroad Co., 150 Pa. 200.
It may not be amiss to say that there is nothing new or exceptional in the rule that the test of the power to take by implication is “ a necessity so absolute that without it the grant itself would be defeated.” Implied powers in all cases rest on this basis. Any other rule would be subversive of the law of corporate authority. The rule relating to the appropriation by one corporation of land already dedicated to public use by another corporation, and necessary for the proper exercise of its corporate functions, is too firmly established on both principle and authority to be seriously questioned.
Before this bill was filed, the defendant company had instituted proceedings at law to condemn the whole of said lot No. 2. This was an assertion of the necessity of the whole for its corporate purposes; and the answer filed in this case reiterated that claim. At the close of the hearing before the master, the defendant, in the language of the master, admitted, “that it was sufficient for the construction and operation of the additional track that it should take no more than a strip of said land (lot No. 2) twelve feet wide and parallel with its existing right of way,” and “ specified as the quantity of plaintiff’s land which it was necessary and essential for the purposes of the defendant, a strip east of defendant’s present track, whose center line shall be parallel with and twelve feet to the east of the center line of its present track, leaving an open space to the east of the center line of such additional track, equal to the space between the center line of its present track and the land or building of the plaintiff company.” While it may be conceded, as before stated, that this amount of land finally claimed may be reasonably necessary to the defendant for its corporate purposes, it is certainly plain that there is no such necessity as would justify it in taking it from the plaintiff.
[96]*96These considerations are sufficient to dispose of the controlling questions in this case; but a few words on another branch of the case may not be amiss, viz: the necessity of the whole of lot No. 2 for plaintiff’s corporate uses. The master found that said lot was devoted by plaintiff to public uses, and “ that the use was not merely incidental or casual or as a matter of accommodation in the operation of its plant;” but he further found that it was not an essential part of plaintiff’s plant. On exceptions to his report, the learned judge of the court below disagreed with the master’s conclusions, except as to the strip twelve feet wide, and he accordingly dissolved the injunction as to that strip and made it perpetual as to the residue of lot No. 2. The findings of facts and his reasoning thereon should have led him to the logical conclusion that the injunction should be made perpetual as to the whole of the said lot No. 2. It appears to us that the learned court below attached too much importance to the immediately present needs of the parties, and not enough to their future needs. Our consideration of the evidence has led us to the conclusion that it presents a much stronger case in plaintiff’s favor than appears in the opinions of the master and the court below. Defendant’s expert witness, Byrne, in his examination in chief, speaking of the value of lot No. 2, said: “Restricted as they are for ground there, it might be of more than ordinary value to the gas company.” He also admitted that on account of the conformation of the ground of lot No. 2, the expense of a retaining wall would be enough to prevent the use of the lot for building purposes after the strip twelve feet wide was taken off. The witnesses substantially agree that the cost to the plaintiff in rearranging the gas plant in accordance with the defendant company’s suggestion, would equal, if not exceed, the additional cost to the defendant of adopting one of the alternative routes that would not injure the plaintiff company. There are also grave doubts whether the plans suggested on behalf of the defendant are either feasible or safe. But it is not our purpose to discuss the evidence. Enough has been said to show that the learned court below erred in not making the injunction perpetual as to the whole of said lot No. 2.
The decree of the court below is accordingly reversed and set aside; and it is now adjudged and decreed that the defend[97]*97ant company, its agents, workmen, servants and employees be, and they are hereby, severally enjoined forever from entering upon or taking possession of plaintiffs lot No. 2, described in the bill, or any part thereof, and also from laying railroad tracks thereon, or in any manner obstructing the plaintiff company in the free use' and enjoyment thereof; and it is further ordered that the defendant company pay all the costs, including the costs of appeal.