Opinion by
Mr. Justice Mestbezat,
The plaintiff has a constitutional right with its road to cross the railroad of the defendant company, subject, however, in the exercise of the right to the control of a court of equity under the provisions of the act of June 19, 1871, Purd. Dig. 780. The 2d section of the act declares that “when such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this commonwealth to ascertain and define, by their. decree, the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed; and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their processes prevent a crossing at grade.” This court has frequently interpreted this section of the act of 1871, and in doing so has clearly defined the rights of the two contesting railroads. In Pittsburg & Connellsville Railroad [183]*183Co. v. Southwest Pennsylvania Railway Co., 77 Pa. 173, Mercur, J., delivering the opinion of the court, says: “We see it (act of 1871) does not put the rights of- the company desiring to cross the railroad of another, on a level with the rights of that other company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute. The one, that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other, that crossings at grade shall be prevented whenever they can reasonably be avoided. .... The parties do not stand on an equality. The rights of the first occupant of the ground, in pursuance of law, are recognized as superior to those of the new claimant.” In Pittsburg Junction Railroad Company’s Appeal, 122 Pa. 511, it is held that a railroad company has a right to consider the needs of the future and to construct its road and make its plans with reference to those needs. Paxson, J., speaking for the court quotes and declares as sound and sensible the following language of Judge McKennan in Lake Shore, etc., Ry. Co. v. New York, etc., Ry. Co., 8 Fed. Repr. 858: “ Every reasonable intendment must be taken in favor of the primary rights of the complainant at the points of the alleged conflict. No actual encroachment upon these rights can be sanctioned or allowed, and in measuring their extent there must be a liberal consideration for the future, as well as the existing necessities of the complainant, the use of the existing tracks, the construction of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction of all its business.”
We do not think it necessary to take up and consider separately the thirty-nine assignments of error filed in this case. It would unduly and unnecessarily extend this opinion. I.t is to be regretted that the learned trial judge did not, in addition to answering the points, find and state briefly and clearly the facts of the case. Such is much the better practice and the one that should be adopted in cases of this character.
The appellant objects to the decree entered by the court below, and alleges that it does not provide a proper mode of crossing its right of way, one that will inflict the least practicable injury upon the rights of the appellant company; and that a temporary grade. crossing for construction purposes [184]*184should not be permitted without limitation as to time. We have read and carefully considered all the testimony in the case and in our judgment it does not authorize the decree entered by the learned trial judge. The appellee’s road crosses the appellant’s right of way at air angle of 21° and 28' and the mode of crossing as defined by the decree deprives the defendant company at this point of the use of about three fourths of its right of way, leaving to it at the place of the proposed crossing sufficient space only for a single track, unless the appellant company in the future convince the court that it needs an additional track. The reason for the decree, as stated by the learned judge, is that “ there is no probability and scarcely a possibility that the defendant company will ever need more than two tracks at this point ” and that “ at the present time the business transacted on the defendant’s road is of trifling importance.” These conclusions ignore the facts disclosed by the evidence. The appellant had secured a right of way sixty feet in width, presumably to be used for the construction of its roadway. The testimony of its officers is to the effect that it will occupy with its tracks the full right of way at the place of crossing; that the plans of the appellant company call for a double track and for a long siding at that point; that its railroad carries passengers, coal, lumber and general mechandise, eighty-five per cent of its traffic being coal; that at present it has a daily coal tonnage of about 3,200 tons and that new mines are being opened and means are being taken to increase the coal tonnage to 6,000 tons per day, or 1,500,000 tons annually. The court found that the appellant had finished and was operating 143 miles of its through line of road, and that on portions of the road, including the place of the crossing, it was running regular passenger and freight trains. With these facts conceded or indisputably established, the mode of crossing the right of way by the appellee’s road, defined by the court below, invades the superior rights of the appellant company. Having selected and adopted the route for its road, the appellant may use the whole or any part of it for the purpose for which it was acquired, and to the extent that such use is necessary the appellee cannot, without an imperative necessity, appropriate any part of it in crossing or for any other purpose. Here, as observed above, it is shown that the future needs of [185]*185the road will require two tracks and a large siding. The appellant company has constructed only one track, but it has the unquestioned right to anticipate its future necessities in the operation of its road, and hence its right to adequate space over its right of way for additional tracks in the future made necessary in handling its traffic. An overhead crossing is conceded to be practicable. But neither its economical construction nor the convenience of the appellee is sufficient to justify the exclusive occupancy of any part of the appellant’s right of way which is necessary for the operation of the latter’s road. In the location of its road, the appellee should have considered the mode of crossing the appellant’s railroad and the possibility of other locations by means of which such crossing would be avoided: Perry County Railroad Co. v. Newport & Sherman’s Valley Railroad Co., 150 Pa. 201. Such considerations might have saved the appellee the expenditure of a large sum of money. This expenditure, however, will not be permitted to interfere with the franchises of another railroad company. Pennsylvania Railroad Company’s Appeal, 93 Pa. 150. The primary rights of the appellant to its right of way must be regarded and enforced, subject only to the right of the appellee to a crossing “ which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed.”
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice Mestbezat,
The plaintiff has a constitutional right with its road to cross the railroad of the defendant company, subject, however, in the exercise of the right to the control of a court of equity under the provisions of the act of June 19, 1871, Purd. Dig. 780. The 2d section of the act declares that “when such legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of courts of equity of this commonwealth to ascertain and define, by their. decree, the mode of such crossing which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed; and if, in the judgment of such court, it is reasonably practicable to avoid a grade crossing, they shall by their processes prevent a crossing at grade.” This court has frequently interpreted this section of the act of 1871, and in doing so has clearly defined the rights of the two contesting railroads. In Pittsburg & Connellsville Railroad [183]*183Co. v. Southwest Pennsylvania Railway Co., 77 Pa. 173, Mercur, J., delivering the opinion of the court, says: “We see it (act of 1871) does not put the rights of- the company desiring to cross the railroad of another, on a level with the rights of that other company, but manifestly declares them to be secondary. Two thoughts are clearly expressed in this statute. The one, that no unnecessary injury shall be perpetrated on the road sought to be crossed; the other, that crossings at grade shall be prevented whenever they can reasonably be avoided. .... The parties do not stand on an equality. The rights of the first occupant of the ground, in pursuance of law, are recognized as superior to those of the new claimant.” In Pittsburg Junction Railroad Company’s Appeal, 122 Pa. 511, it is held that a railroad company has a right to consider the needs of the future and to construct its road and make its plans with reference to those needs. Paxson, J., speaking for the court quotes and declares as sound and sensible the following language of Judge McKennan in Lake Shore, etc., Ry. Co. v. New York, etc., Ry. Co., 8 Fed. Repr. 858: “ Every reasonable intendment must be taken in favor of the primary rights of the complainant at the points of the alleged conflict. No actual encroachment upon these rights can be sanctioned or allowed, and in measuring their extent there must be a liberal consideration for the future, as well as the existing necessities of the complainant, the use of the existing tracks, the construction of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction of all its business.”
We do not think it necessary to take up and consider separately the thirty-nine assignments of error filed in this case. It would unduly and unnecessarily extend this opinion. I.t is to be regretted that the learned trial judge did not, in addition to answering the points, find and state briefly and clearly the facts of the case. Such is much the better practice and the one that should be adopted in cases of this character.
The appellant objects to the decree entered by the court below, and alleges that it does not provide a proper mode of crossing its right of way, one that will inflict the least practicable injury upon the rights of the appellant company; and that a temporary grade. crossing for construction purposes [184]*184should not be permitted without limitation as to time. We have read and carefully considered all the testimony in the case and in our judgment it does not authorize the decree entered by the learned trial judge. The appellee’s road crosses the appellant’s right of way at air angle of 21° and 28' and the mode of crossing as defined by the decree deprives the defendant company at this point of the use of about three fourths of its right of way, leaving to it at the place of the proposed crossing sufficient space only for a single track, unless the appellant company in the future convince the court that it needs an additional track. The reason for the decree, as stated by the learned judge, is that “ there is no probability and scarcely a possibility that the defendant company will ever need more than two tracks at this point ” and that “ at the present time the business transacted on the defendant’s road is of trifling importance.” These conclusions ignore the facts disclosed by the evidence. The appellant had secured a right of way sixty feet in width, presumably to be used for the construction of its roadway. The testimony of its officers is to the effect that it will occupy with its tracks the full right of way at the place of crossing; that the plans of the appellant company call for a double track and for a long siding at that point; that its railroad carries passengers, coal, lumber and general mechandise, eighty-five per cent of its traffic being coal; that at present it has a daily coal tonnage of about 3,200 tons and that new mines are being opened and means are being taken to increase the coal tonnage to 6,000 tons per day, or 1,500,000 tons annually. The court found that the appellant had finished and was operating 143 miles of its through line of road, and that on portions of the road, including the place of the crossing, it was running regular passenger and freight trains. With these facts conceded or indisputably established, the mode of crossing the right of way by the appellee’s road, defined by the court below, invades the superior rights of the appellant company. Having selected and adopted the route for its road, the appellant may use the whole or any part of it for the purpose for which it was acquired, and to the extent that such use is necessary the appellee cannot, without an imperative necessity, appropriate any part of it in crossing or for any other purpose. Here, as observed above, it is shown that the future needs of [185]*185the road will require two tracks and a large siding. The appellant company has constructed only one track, but it has the unquestioned right to anticipate its future necessities in the operation of its road, and hence its right to adequate space over its right of way for additional tracks in the future made necessary in handling its traffic. An overhead crossing is conceded to be practicable. But neither its economical construction nor the convenience of the appellee is sufficient to justify the exclusive occupancy of any part of the appellant’s right of way which is necessary for the operation of the latter’s road. In the location of its road, the appellee should have considered the mode of crossing the appellant’s railroad and the possibility of other locations by means of which such crossing would be avoided: Perry County Railroad Co. v. Newport & Sherman’s Valley Railroad Co., 150 Pa. 201. Such considerations might have saved the appellee the expenditure of a large sum of money. This expenditure, however, will not be permitted to interfere with the franchises of another railroad company. Pennsylvania Railroad Company’s Appeal, 93 Pa. 150. The primary rights of the appellant to its right of way must be regarded and enforced, subject only to the right of the appellee to a crossing “ which will inflict the least practicable injury upon the rights of the company owning the road which is intended to be crossed.”
We are convinced by the evidence in the case that the appellant will need sufficient space for two tracks and one siding, and we agree with its counsel that a proper mode of crossing its road will be by a three-span structure with a vertical clearance of twenty-one feet supported by iron posts on piers resting upon the right of way, as shown by exhibit “ N,” and fully and particularly described in the testimony of A. G. McComb, the civil engineer. Such an overhead crossing may not do the least practicable injury to the appellant, but manifestly it gives to the appellee all the rights and privileges on and over the appellant’s right of way to which it is entitled. It involves the expenditure of more money than the mode of crossing directed by the court below, but the excess is not burdensome nor sufficient to justify complaint on the part of the appellee.
Under the testimony and the finding of facts by the learned trial judge, we cannot say that he erred in granting the ap[186]*186pellee a temporary crossing for construction purposes; but the court should have required its removal within a designated time. As the decree hereinafter directed to be made by the trial court will finally dispose of the case, the reason for not fixing a time limit for the temporary grade crossing suggested in the argument of appellee’s counsel, will cease and hence no longer avail their client. If necessary, the court below can take further testimony to enable it to ascertain the time in which the grade crossing should remain on the appellant’s right of way. If any valid reason should arise for extending the time fixed in the decree, the court being convinced of the fact can modify the decree so as to protect and enforce the rights of the parties.
It is now ordered, adjudged and decreed that the court of common pleas of McKean county, sitting in equity, modify the decree heretofore entered by it in this case on August 9, 1901, so as to conform to the views expressed in the foregoing opinion, and the decree as thus modified is affirmed. It is further ordered that the appellee pay the costs of this appeal.