Vinton Colliery Co. v. Blacklick & Yellow Creek Railroad

Railroads — Condemnation of land — Public use — Private use — Equity. 1. A bill in equity to restrain a railroad company incorporated under the Act of April 4, 1868, P. L. 62, from condemning land, on the ground that the land was intended for a purely private, and not a public use, is properly dismissed, where the court finds from sufficient evidence that it was the intent and purpose of the incorporators of the defendant company to complete, equip and operate its railroad as required by law, and that public necessity demands the construction and operation of the road. 2. Questions growing out of the exercise of the powers granted to a corporation cannot be raised in a proceeding under the Act of June 19, 1871, P. L. 1360, under which act the inquiry is always limited to a consideration of the question, Does the corporation possess the power to do what it is attempting to do, and not whether it is'exercising its power in an improper manner.

Appeal, No. 50, Oct. T., 1909; by plaintiff, from decree of C. P. Cambria Co., June T., 1908, No. 3, dismissing bill in equity in case of The Vinton Colliery Company v. The Blackliek & Yellow Creek Railroad Company. Bill in equity for an injunction. O’Connor, P. J., found the facts to be as follows: The above-named defendant is duly incorporated and organized as a railroad company under the act of April 4, 1868, and its supplements. The complainant is a corporation organized for the purpose of acquiring and mining coal and has large holdings in the counties of Cambria and Indiana, state of Pennsylvania. The defendant company is seeking to condemn land for right of way for a railroad already constructed and in operation upon the site sought to be thus legally acquired. That portion of the railroad in question which passes over land of plaintiff was constructed as a lateral railroad by the Vinton Lumber Company, Limited, and is covered by the adopted route for defendant’s railroad. The plaintiff seeks to restrain the defendant company from condemning, first, for the reason that it does not affirmatively appear that it possesses the right of eminent domain; and second, that the petition does not aver the necessity for such action. The plaintiff, however, admits, in the second paragraph of its bill, that the defendant company is incorporated under the act of April 4,1868, and its supplements, for the purpose of constructing and operating a railroad. If this be true it has the right of eminent domain and the court is relieved from further consideration thereof. We find that the stockholders in the Vinton Lumber Company, Limited, and those of the defendant company are not identical, though if it be the desire of those holding stock in the former company to obtain stock in the defendant company, they will be accorded that privilege. We further find that it is the intent and purpose of the incorporators of defendant company to complete, equip, and operate its railroad as required by law. The Pennsylvania Railroad Company had an option to take over the lateral railroad of the Vinton Lumber Company, Limited, and establish it as one of its branches. This option but recently expired. The Vinton Lumber Company, Limited, had agreed with the defendant company to finance the building of its road, operate it during the construction period and settle with the defendant company when the way to do so became' clear. The option of the Pennsylvania Railroad Company having terminated, the beginning of the end was in sight and at once defendant company became active. Condemnation proceedings were begun; negotiations looking toward the purchase of the rails owned by the Pennsylvania Railroad Company were opened, and generally a movement toward a complete acquirement of all that was necessary for defendant’s complete control and operation of the road was made. Plaintiff filed exceptions to the condemnation proceedings, which were disposed of in the court where filed, and then filed in this court to the above number and term the bill in equity upon which this proceeding is based. The only ground upon which this court could take cognizance of the complaint was the allegation that the proceeding was an unlawful attempt to procure plaintiff’s land for a private use under the guise of a railroad charter. All other matters, facts and circumstances alleged were urged as grounds supporting this allegation. From the pleadings, the testimony and arguments upon part of plaintiff we are asked to find as a fact that the action complained of is an attempt on part of the Vinton Lumber Company, Limited, to procure a railroad for its private use under the cloak of defendant’s charter. We find from the evidence, however, that the operations of the Vinton Lumber Company, Limited, have ceased in this region and as a lumber company it has no further use for this road. We find that public necessity demands the construction and operation of this road. We find that both passenger and freight trains are being used upon this railroad, and that a regular passenger schedule had been adopted prior to the hearing in this cause. The testimony of Mr. Lee and others called as witnesses upon the hearing fully explains away the seeming doubtful actions on part of defendant company, and has satisfied this court that even the plaintiff will get what it asserted it desired, viz.: A railroad which will in a true sense be a common carrier. It follows from the foregoing that the bill filed in the premises should be dismissed at costs of complainant, and unless exceptions to such finding be filed within ten days a formal order to that effect will be made. Error assigned was decree dismissing the bill.