Westside Electric Street Ry. Co. v. West Penn Power Co.

8 Pa. D. & C. 281, 1926 Pa. Dist. & Cnty. Dec. LEXIS 312

Opinion

Opinion on exceptions to the court’s adjudication.

Cummins, J.,

Plaintiff by bill seeks to restrain defendant company from crossing, with a system of high-tension lines, its tracks and facilities at a height of at least 145 feet above and without touching at any point the physical property of the former. The facts fully appear in the court’s adjudication; plaintiff’s exceptions to which are now before the court in banc. By these exceptions but a single question of law is raised — whether the Act of May 21, 1921, P. L. 1057, which gives to light, heat and power companies the right of eminent domain, vests in such a company authority to cross the right of way of a street railway company, high above the facilities of and without touching the physical property of the latter, where the latter owns its right of way in fee?

The Act of May 21, 1921, gives to light, heat and power companies the power of eminent domain by a general grant, and then limits such general grant with the proviso that “streams, rivers or waters of the Commonwealth, or any of them, or the land covered thereby, or other public property, or property of a public service company, or property used for a burying-ground or place of public worship, or a dwelling-house . . . shall not be appropriated.” We held in our adjudication that the properties of public service companies excepted out of the operation of the general grant were only such as were, or reasonably might become, necessary or essential to a public service company for its franchise purposes; that in the case of a street railway this included only such an interest in its right of way as it might have acquired by condemnation; that as to such right of way there had been no taking of property; and that as to plaintiff’s interest in the fee in excess of such right of way, such interest could be condemned in the same manner as if owned by an individual. Counsel for plaintiff, both at final hearing and upon argument of plaintiff’s exceptions, earnestly contended, first, that all property owned by a public service company, whether necessary or essential to its franchise or not, is excepted from the operation of the act; and, second, that the interest of a street railway company acquired by condemnation is such that defendant’s crossing with its wires would constitute a taking of plaintiff’s right of way, even if limited to that acquired by condemnation. Neither position can be sustained.

The limitation imposed by the legislature on its general grant of power must be so construed as to reasonably effect the purpose and object which it sought to attain: Swift’s Appeal, 111 Pa. 516, 523; Essinger v. New Castle, 275 Pa. 408, 411. Obviously, it was not intended that the property of a public service company was to be protected against appropriation because such owners were to constitute a favored class, but because of the public or quasi-public uses for which their franchise properties are held and dedicated. Dwelling-houses, burying-grounds and places of public worship are likewise excepted from the operation of the act for the same general reason. Clearly, then, the property of a public service company to be excepted is only such as is, or may reasonably become, essential or necessary to a proper exercise of its franchise; and, hence, any other property owned by it would be subject to appropriation in the same manner and to the same extent as if owned by an individual: In re Application of Cleveland & Pittsburgh R. R. Co., 2 Pitts. Rep. 348, 352; Scranton Gas and Water Co. v. D., L. & W. R. R. Co., 225 Pa. 152, 162.

While we have no authorities construing the limitation under consideration, or at least none have been called to our attention, yet the construction which we have placed upon this act is in accord with the reasoning and construction placed upon the quite similar legislative restriction appearing in the General Railroad Act of Peb. 19, 1849, P. L. 79, 83. It is held, in construing that act, that the portion of a cemetery not adapted to use for cemetery- purposes may, notwithstanding the restriction, be condemned: Ex parte New Brighton & New Castle R. R. Co., 30 Pitts. L. J. 22; Brush Run Cemetery Co. v. Montour R. R. Co., Washington County, No. 78, August Term, 1913; and see 1 Lewis on Eminent Domain (2nd ed.), 655, and Wood v. Railroad Co., 68 Ga. 539; that whether a building is exempted from appropriation as a dwelling-house shall be determined from its use: Johnson v. Railroad Co., 33 W. N. C. 184, 186; Woods v. Railroad Co., 30 W. N. C. 117; and, although the curtilage is conceded to be part of a dwelling-house (Swift’s Appeal, 111 Pa. 516, 523; Damon’s Appeal, 119 Pa. 287, 290), yet that only such portion thereof is exempted from condemnation as is found to he necessary or essential to the reasonable use or enjoyment of such building as a dwelling: Swift’s Appeal, 111 Pa. 516; Damon’s Appeal, 119 Pa. 287; Lyle v. Railroad Co., 131 Pa. 437; Millroy v. Railroad Co., 44 Pitts. L. J. 377; Stahl v. Railroad Co., 155 Pa. 309; and see Snyder v. B. & O. R. R. Co., 210 Pa. 500; Bierly v. Railroad Co., 225 Pa. 182.

The second contention relied upon by counsel for plaintiff necessitates a consideration of the nature of a right of way acquired by a street railway company by exercise of the right of eminent domain. The interest thus acquired cannot be properly described by referring to it as any common law estate or interest in land, because at common law no such interest or estate existed. This newly-created interest in land is without a technical legal name by which it may be properly designated; hence, some confusion has resulted in attempting to properly refer to it, but the authorities as to the actual nature and extent of the interest itself seem to be in accord. In some of the eases it is referred to as being an easement, and in still others as being in the nature of a base fee, and, although it may and does have some of the characteristics of each, yet it cannot be properly said to be either: Dilts v. Railroad Co., 222 Pa. 516, 525; and see Lazarus v. Morris, 212 Pa. 128, 131. As was aptly said by Mr. Justice Simpson in the recent case of Hall v. Railroad Co., 270 Pa. 468, 471: “The vital thing, however, is not the name given to the estate acquired by the railroad company (for applying an old name to that which is sui generis is apt to be followed by attempts to give all the attributes usually applicable to an old title to the new creation, to which they do not belong), but what are the rights acquired by reason of the taking? and the answer is, . . . those rights which by legislation or in the nature of the thing, are necessary for the carrying on of the [corporate] business.” The interest acquired by the condemnor does not include the subsoil; the title to the minerals thereunder, including the coal, oil and gas, still remain in the land owner: Lyon v. Gormley, 53 Pa. 261; Lawrence’s Appeal, 78 Pa. 365; Rice v. Clear Spring Coal Co., 186 Pa. 49, 61; Hall et al. v. Railroad Co., 270 Pa. 468, 472; in fact, the condemnor does not acquire even a base fee in the surface, for such condemnor cannot sell or give away coal, gravel or dirt excavated in grading and not needed for railroad purposes: Lyon v. Gormley, 53 Pa. 261; Hall et al. v. Railroad Co., 270 Pa. 468, 472; Barclay v. Howell, 6 Peters (U. S.), 495, 512; nor does it acquire title to the waters of a spring which may be within its right of way: Dilts v. Railroad Co., 222 Pa. 516, 530; and see Cambria, etc., Ry. Co. v. Water Co., 226 Pa. 402; nor can it grant to a telephone company the right to erect poles and wires on its right of way for the latter’s corporate purposes: Pittock v. C., D. & P. Tel. Co., 31 Pa. Superior Ct. 589. Again, it has been held that the interest acquired by a railroad company in its right of way does not constitute any estate in the land itself, but only the exclusive right to use such right of way for railroad purposes, and that this interest is not, therefore, subject to lien or sale under execution: Western Penna. R. R. Co. v. Johnston, 59 Pa. 290, 294. An appropriation for a street railway right of way is a servitude on the subjacent strata only so far as is necessary to support the surface for the public use for which it is taken: Penn Gas Coal Co. v. Gas Co., 131 Pa. 522; Davis v. Gas Co., 147 Pa. 130; Dilts v. Railroad Co., 222 Pa. 516, 532. A street railway company which has acquired its right of way by appropriation is entitled to. the exclusive use of such right of way for street railway purposes, together with necessary support of the surface and freedom from interference with its facilities from the air.

The defendant company in crossing plaintiff’s right of way with its high-tension wires passed, by means of towers, high above the former’s tracks and facilities and without touching at any point the physical property of said right of way. As to plaintiff’s property which is necessary or essential to the exercise of its corporate franchise (such interest in its right of way as it would have acquired by condemnation), there is no taking, although such a crossing is subject to regulation by the Public Service Commission (see Smethport R. R. Co. v. Railroad Co., 203 Pa. 176); and as to plaintiff’s interest in the right of way in excess of such as it would have acquired by appropriation, as to this interest defendant has a like right to appropriate as if same were still held by a private individual: Gas Co. v. Railroad Co., 225 Pa. 152, 161, 162; and to properly effect this end, which it has already ineffectually attempted, defendant is in good equity entitled to a reasonable time within which to institute a proper proceeding to condemn: Creamery and Dairy Co. v. Philadelphia, 274 Pa. 251, 255, 256.

Decree.

And now, to wit, Feb. 1, 1926, this case came on to be heard on plaintiff’s exceptions to the court’s final adjudication and was argued by counsel, whereupon, upon consideration thereof and for the reasons set forth in the foregoing opinion, said exceptions are dismissed, and it is further ordered* adjudged and decreed that defendant, West Penn Power Company, is perpetually enjoined and restrained from operating or maintaining its system of transmission lines, including all equipment incident thereto, over or across the property of plaintiff, Westside Electric Street Railway Company, at the point or place described in plaintiff’s bill, unless it shall, within sixty days from the date hereof, proceed to take such corporate action, and thereafter institute and prosecute with due diligence, such legal proceedings as may be necessary or proper to effect an appropriation of such right of way over plaintiff’s said land as required for said crossing complained of, and á proper ascertainment and payment of compensation to plaintiff for the damages resulting therefrom; the costs of this proceeding to be paid by defendant.

Prom H. D. Hamilton, Washington, Pa.