64 legal efficacy of any of these proceedings. The contract in question and enter upon the street, adoption of a branch through High Street was tear up the tracks previously laid by the Railway made by the Board of Directors of the Railway Company and thereupon proceed to lay the cable Company at a meeting regularly held. The or- tracks. It can hardly be that the question of dinances of the city councils were duly enacted statutory authority can be made to depend upon by the proper authorities. Everything done was such a consideration as that. If it did, it would in strict conformity with all legal requirements, only be necessary for the Traction Company to and, in our opinion, sufficed to clothe with take up its tracks, for the Railway Company authority of law all the acts of the several parties thereupon to lay its tracks, and then for the done in conformity with those requirements. Traction Company to take them up and relay its On December 27, 1888, a formal contract was own again. But in our opinion there is no occaentered into between the two companies, by which sion to resort to such a subterfuge. The plain the Railway Company agreed that the Traction meaning of the Act is, that if, at the time of its Company might enter upon any and all highways passage, a railway track had already been laid, or on which the tracks of the Railway Company if thereafter a railway track might legally be laid now are, or hereafter may be, constructed, and by a passenger railway company, the Traction may there construct, maintain, and operate during Company could contract with the Railway Comthe term of this contract, such motors, cables, pany to construct motors, cables, etc., by means electrical or other appliances, and such necessary of which to run the cars. It would be absurd to and convenient apparatus and mechanical fixtures say that if the Railway Company was legally as will provide for the traction of cars on the authorized to lay a horse-car track, but had not track of said Passenger Railway Company." yet laid it, and desired to lay a cable track, it The contract was to continue during the term of could not do so without first laying a horse-car ninety-nine years, and contained other provisions track, and then contracting with a cable comas to details, and required the Traction Company to pay an annual sum of $26,250 in consideration for the rights and privileges granted by the contract. If this contract was within the power of the contracting parties to make, we cannot perceive the slightest reason for questioning the good faith, or the right of either of the parties to consent to its terms and become bound by them. It is not a matter of the smallest possible consequence whether either or both of the parties found it to their pecuniary advantage to enter into and to execute this engagement. The learned Court below found that "the new route probably accommodates more people than the old one did, and the company has given rapid, frequent, and comfortable transportation to the public, in place of the slow, infrequent, and uncomfortable passage of the old Passenger Railway." This being so, the public is a gainer by the transactions of the two companies, and their interests ought not to be sacrificed except for plain and sufficient reasons. pany to have the latter lay a cable track. If the cable track could lawfully be laid at all, and if the Horse-Car Company had a legal right to lay a horse-car track, and also a legal right to have a cable track laid instead of a horse-car track, it certainly cannot be that the prior laying and destruction of a horse-car track is a condition precedent to the right to lay a cable track. ad The Act of 1887 does not require any such strained and unreasonable construction. It is only necessary to read the word "may" before the word "hereafter" in the first section, in its ordinary sense, to understand the propriety of this reading. The Master and the learned Court below read the word "may" as if it were the word "shall," and inferred that the word was imperative and implied that the railway track must have been actually laid vance of the right to contract for a cable track, whereas the word "may" does not necessarily import anything more than that a railway track may be laid; that is, that there is a right to lay The learned Master was of opinion that, be-it. There is no doubt that the railway company cause the Railway Company had not in point of had the right to lay a track on High Street at the fact laid a track or tracks upon High Street be-time of the contract, and was not restricted as to fore the tracks were laid there by the Traction the kind of track it should lay. Its power did Company, the power to lay them did not exist under the agreement and ordinances, because the Act of 1887, under which the defendant company was organized, only gave authority to lay tracks upon any street upon which "a passenger railway now is, or may hereafter be, con-horse-car track may be laid. Its right to do so structed." The result of the reasoning of the Master would simply be that if the Railway Company had first laid tracks on High Street, the Traction Company could lawfully make the not depend upon the Act of 1887, and it is not possible to understand why the Traction Company with a power to contract for the laying of a cable track, where a horse-car track was already laid, could not contract to lay a cable track where a comes within the letter of the Act, and it is very plain that the Act intended by the words, " or may hereafter be constructed," to enlarge the scope of the powers of the Traction Companies, so as to embrace future development as well as | Pass. R. W. Co., 131 Id. 1, the Act of 1870 that which already existed. To hold as the Mas- will apply to the Central Passenger Railway ter and the Court below held, would be to rule Company, but holds that under the rules of inthat the general powers of the Traction Com- terpretation laid down in Gyger v. Philadelphia panies were restrained by these words "may Railway Company, 136 Pa. 96, the Act of 1870 hereafter be constructed," whereas they were was not intended to and does not apply to passplainly intended to enlarge them. This idea is enger railway companies. We do not agree that confirmed by the concluding words of the first there is any inconsistency in these several declause of the section, viz., "and to enter into cisions. They, all of them, and especially the contracts with passenger railway companies to last one cited, hold that the terms "railway" and construct and operate motors, cables or other" railroad" are synonymous and have no distinct appliances necessary for the traction of their and independent meaning in themselves, and that cars." These words are general and confer upon when either of the words is used in a statutory or the motor companies the general power to con- constitutional provision and the context is with tract with all passenger railway companies for out indication that a particular kind of road is the construction and operation of motors, cables, intended, the provision will be held applicable to and other appliances. No limitation is here every species of road embraced in the general placed upon the power to contract to do, sense of the word used. In the Gyger case we practically, the same things which the previous held that there was very clear indication in the clause of the section provided for. The gener- context of the 4th section of the 17th Article of ality of the construction we have indicated for the Constitution that passenger railways were not the first part of the section is also strengthened intended to be included in the provisions of that by the eighth clause of the powers specifically con- section, and for that reason only we held that ferred by the concluding clause of the same sec-street railway companies were tion, to wit, "To lease the property and franchises of passenger railway companies which they may desire to operate, and to operate said railways." Here also the power conferred is without any restriction, and embraces all passenger railway companies. The power to lease and operate the property and franchises of passenger railway companies necessarily includes all the franchises, rights and privileges of the company leased, and among these is necessarily the right to occupy such streets, and lay all such tracks as the leased company is possessed of. We are therefore of the opinion that the right of the Traction Company, defendant, to enter into the contract in question in the present case was fully conferred by the Act of 1887, and cannot be restrained, as to the laying of tracks, to the laying of tracks only pon such streets as the Railway Company had already laid tracks upon prior to the making of the contract. The learned Court below went further than the Master and held that the railway company had no power to make such a contract as it did, because the contract was a virtual surrender of all the property and franchises of the company to another corporation, which could only be done under express statutory authority, and such authority, the Court held, did not exist as to the Central Passenger Railway Company. To this the defendant company replies that the necessary statutory authority to make the contract in question does exist, and is conferred by the Act of February 17, 1870, P. L. 31. The learned Court below admits that under our decisions in the case of Hestonville Railroad Co. v. City, 59 Pa. 210, and Millvale Borough v. Evergreen not included within the prohibition of the section. The considerations which led us to that conclusion are fully presented in the opinion and they are in entire harmony with everything that was said and decided in the other two cases cited. In the present case those considerations are not applicable and we are entirely clear, upon the reasoning in all three of the cases, that the Act of 1870 does include passenger railroad companies as well as steam railroad companies. The language is very general and embraces all railroads without distinction. The Court below was of opinion that because it included railroads in other States it could not have been intended to include passenger railroads in this State. We do not see the force of that inference. The power to contract for railroads in other States is espe cially given because it would be necessary to give it by express mention, they being extra-territorial. But surely if without that enlargement of the subject-matter the language of the Act would embrace passenger railroads, the extension of the power to embrace railroads out of the State can not operate to cut off or exclude passenger roads within the State by mere implication. The words which extend the contracting power to roads out of the State are words of enlargement of power, not of restriction upon powers already granted by the Act, and we cannot give them such meaning by mere intendment. rail Another objection is made to the application of the Act of 1870, because no continuous connection is made between the road of the passenger company and any road of the Traction Company, and under the proviso of the Act such connection is necessary before the Act can operate. This raises a question not of construction of the Act, | means as new wants and the improvements of the but whether companies seeking to make use of it have brought themselves within its terms. In Williams v. Railway Co., 41 Fed. Rep. 556, the Court said: "The operation of a street railroad by mechanical power when authorized by law, on a public street, is not an additional servitude or burden on land already dedicated or condemned to the use of a public street, and is, therefore, not a taking of private property, but is a modern and improved use of the street as a public highway and affords to the abutting property holder, though he may own the fee of the street, no legal ground of complaint." age may render necessary; and that the question whether a new method of using the street for As the Traction Company has no road of its public travel results in the imposition of an own, there is much plausibility in this contention; additional burden on the land or not must be debut yet the question still remains, whether the termined by the use which the new method makes plaintiffs are in a position to sustain their bill on of the street and not by the motive power which this ground. If they have no interest arising it employs in such use. It was also held that the from remediable injury, it is difficult to under-erection of poles in the centre of the street and stand how they can invoke the aid of the law to on the sidewalk in front of the plaintiff's propcorrect an excessive exercise of power by making erty, with connecting wires, for the purpose of the lease or contract in question. If they have applying electricity as a motive power to propel done that they are responsible to the Common-street cars, was not imposing an additional serviwealth, but not to a private citizen who has sus-tude upon the street, and that the owner had no tained no special injury for which he is entitled cause of action. to redress. It has been many times held, and by many different Courts, that the use of a public street for purposes of street railroads, is not the imposition of an additional servitude, and does not entitle the abutting land-owners along the street to compensation for such use. In the case of Lockhart v. The Craig Street Ry. Co., 139 Pa. 419, we affirmed the lower Court in the following ruling: "It cannot be doubted at this day that the Legislature of Pennsylvania has the power to authorize the incorporation of companies, with power to build and operate railways with In the case of Briggs v. Railway Co., 79 Maine, horses over the streets of cities, with the authority 363, the Court said: "We do not think the conand consent of the authorities of said cities, as struction and operation of a street railroad in a provided by section 9, Article XVII. of the Con- street is a new and different use of the land from stitution. And it is too late to say that such use its use as a highway. The modes of using a highand occupation of the streets impose such an ad- way, strictly as a highway, are almost innumerditional burden or servitude thereon as renders itable; and they vary and widen with the progress necessary to provide for compensation therefor to the owners of abutting property. . . . . So far as the street use proper is concereed there is no substantial difference between the tracks of such a street railway and one operated by electricity. . . And it may be now taken as settled that the owners' rights as to abutting property are subject to the paramount right of the public, and the rights of the public are not limited to a mere right of way but extend to all beneficial, legitimate street uses, such as the public may from time to time require. ... Recognizing the right of the Legislature and city authorities to authorize the building of railways upon the streets of a city without compensation to property owners, because it is a means of public transportation and accommodation, the necessary and proper apparatus for moving them must be allowed to follow as an incident, unless there is something illegal in its construction or use." In Halsey v. Railway Co., 20 Atlantic Rep. 859 (Court of Chancery, New Jersey, 1890), it was held that land taken for a street is taken for all time, and compensation is made once for all, and by the taking the public acquire the right to use it for travel, not only by such means as were in use when the land was acquired, but by such other .... of the community. . . . . The laying down of rails in the street and running street cars over them for the accommodation of persons desiring to travel on the street is only a later mode of using the land as a way, using it for the very purpose for which it was originally taken. It may be a change in the mode, but is not a change in the use. We do not think the motor is the criterion. ... This defendant company is using the land as a street. Its railroad is a street railroad. Its cars are used by those who wish to pass from place to place on the street. A change in the mode is not a change in the use." All of this is strictly applicable to the facts of the present case. High Street was a public street of the city before the defendant's tracks were laid, and it is so still. Whether the motive power of the cars be horses, electricity, or a submerged cable makes no difference in the use, and no one of these modes of use confers any right of action upon the abutting owner. In Taggart v. Newport Street Ry. Co., 7 Rwy. & Corp. L. J. 385, it was also held that a street railway operated by electricity imposed no new servitude upon the property owner, although poles and wires were erected in the streets in connection with the railway. Laying a street car track so close to the sidewalk that vehicles cannot stand gives no ground for action: Killinger v. Railway Co., 50 N. Y. 206. We do not at all agree with the learned Court below that the occupation of the street by the tracks and motors of the defendant has diminished the value of the plaintiffs' properties from one-third to one-half. The testimony to that effect was chiefly the interested testimony of the plaintiffs themselves, and was matter of opinion only, fortified by no actual facts. It was admitted by two of them that there was no change in the rental value of their properties, and that is as fair an actual test of market value as can ordinarily be shown. Other testimony was to the effect that there was no decrease of value in the properties, and this opinion was supported by instances of property sales in other localities where similar conditions existed. This subject, however, is not controlling, and is only alluded to because it was made the subject of a distinct finding by the learned Court below, which, we think, was not justified by the testimony. Upon the whole case and a review of all the testimony, we are of opinion that the Traction Company had ample authority under the Act of 1887 to make the contract with the Passenger Railway Company, and that whether the latter company exceeded its lawful authority by becoming a party to the contract is a question of the excessive exercise of power by a corporation, for which it is amenable to the Commonwealth, but not to a private suitor, unless he has sustained a private injury for which he has legal redress. We hold that these plaintiffs have not sustained such injury, and therefore have no standing to maintain their bill. We think, however, that in view of all the circumstances, the costs should not be imposed upon the plaintiffs, but should be borne by the defendant. It is claimed for the plaintiffs that their right of free access to their property along High Street is interfered with because vehicles cannot stand between the railway tracks and the curbing without interfering with the cars. But the right of the property-owner in this respect is not at all changed. He has the same right after the tracks are laid and the cars running that he had before. It is a right which must be exercised in reason whether there are car tracks on the street or not. In no circumstances does it confer the privilege of obstruction by unreasonable exercise. But the reasonable exercise of the right gives no right to the street-car companies to arrest it. If at any time the owner has occasion for the presence of vehicles in front of his property on the street to take away or deliver persons or goods, he may exercise that right for such reasonable time as is necessary for his purposes; and if, in such exercise of the right, the passage of street cars is impeded, the street cars must wait. Such stoppage of cars is a matter of hourly occurrence in all large towns and cities where street-car tracks are laid upon narrow streets; and it was proved on the hearing before the Master that not only in Pittsburgh and Allegheny, but in Philadelphia, there are numerous instances of this kind. It was also proved that in actual fact there had been no trouble of this kind on High Street since the cars were running; but the important question is as to the existence of the right of the owner, and not as to its abuse by either the street-car company or the owner. For such abuse by the company on the one hand, or the owner on the other, each The decree of the Court below is reversed, and is responsible and each has adequate remedy. the bill of the plaintiffs and all proceedings These principles are sustained by abundant au- thereunder are dismissed and set aside, but all thority, and they are the teachings of common the costs of the case shall be paid by the desense. The same is true respecting the right of fendant. access to the pipes and mains lying under the surface of the street. Some of them were lowered slightly by the defendant company to make room for the conduit for their cables, and the connections were restored by the company. The right of future access to those pipes and mains by the owner remains precisely the same as it was before. A slight difference in the depth to which the owner must go, upon the very rare C. P. No. I. occasions when he may desire to make repairs or new connections, is so very trivial that it must be regarded as damnum absque injuria. If for any reason, such as change of grade by the municipal authorities or to get below the frost, the pipes and mains require to be lowered, it certainly has never been supposed that the owner would have a right to recover damages against the municipality or other authority on account of such lowering of the pipes and mains. Common Pleas. In re Linton. A. R. H. February 6, 1892. Lunacy-Appointment of committee-Act of June The petition set forth that Lydia Linton, a resident of the city of Ithaca, State of New York, | Where the law raises a presumption of paywas, upon August 10, 1891, by decree and order ment, the testimony to rebut it should be satisof the Court of Tompkins County, duly adjudged factory and convincing, of which the Court a lunatic, and a committee of her person and should judge, and where it is vague, uncertain, estate, for the territory of New York State, duly and equivocal, it should not be submitted to the appointed; that petitioner is a nephew of said jury. Lydia Linton, and that said Lydia Linton is the owner of certain ground-rents and securities in the city of Philadelphia, yielding an income of $860 annually. The petition prayed for the appointment of the Girard Life Insurance, Annuity and Trust Company as committee of the estate of said Lydia Linton, in and for the State of Pennsylvania, under the terms and provisions of the Act of June 13, 1836, sec. 18; the said company being exempted from giving security by the provisions of its charter. The petition was accompanied by formal and duly authenticated proof of the record in the lunacy proceedings which were had in New York State. John Hampton Barnes (Geo. Tucker Bispham with him), for the petition. Eo die. Prayer of petition granted. o. L. Gregory v. Commonwealth, 22 WEEKLY NOTES, 381. Claims of this character against estates of dead men resting on mere oral testimony of declarations or admissions, are very dangerous, and ought not to be favored by the Courts. Pollock v. Ray, 85 Pa. 428. Barhite's Appeal, 126 Id. 404. Graham v. Graham, 34 Id 475. Ulrich v. Arnold, 120 Id. 170. Wall's Appeal, 111 Id. 460. Cooper's Estate, 24 WEEKLY NOTES, 384. William A. Manderson, contra. Eo die. Rule discharged. C. P. No.1. H. W., Jr. January 2, 1892. viving partner for an account. Henry C. Terry, for the rule. S. Morris Waln, contra, cited Rule LXI. of the Supreme Court, as follows: On the trial it appeared that the plaintiff went to decedent's house as nurse about thirteen months before his death, and it was for the whole of this period that she claimed compensation. Either party may enter a rule as of course on his adverSuit was not brought until more than four years sary to close the taking of his testimony within thirty days after decedent's death. To rebut the legal pre-after notice of such rule; any testimony taken after thirty sumption of payment, plaintiff examined two days' notice of such rule shall not be read in evidence at But it shall be in the discretion witnesses, who testified that the decedent had the hearing of the cause. .said that plaintiff should be well paid. One of of the Court to enlarge the time on the application of the party against whom such order may have been obtained, these witnesses testified that decedent had made upon sufficient cause being shown; and no such rule shall this statement just after plaintiff came to nurse be entered against a party while by the provisions of the him. The other testified, he said it often, he 59th rule such party is not bound to begin until his adsaid it all along." Verdict for plaintiff. versary has closed. John Dolman, for the rule. Where domestic services are rendered and no demand for payment of wages is made for a considerable time after their termination, the presumption is that the services have been paid for. McConnell's Appeal, 97 Pa. 31. |