Groff v. Bird-in-Hand Turnpike Co.

1. Property devoted to public use, including franchises, may be taken under the right of eminent domain for other public uses, but it cannot be so taken without legislative authority expressed in clear terms or necessarily implied. 2. In construing a grant of corporate authority, the fact that a particular power is omitted from those enumerated in the charter, is to be given the effect of a prohibition against its exercise, unless there be an imperative implication of its inclusion. 3. A turnpike company, incorporated under the act of April 29, 1874, P. L. 73, by a charter which specifies the termini of its roadway but is silent as to the intermediate route, cannot appropriate an existing public highway, merely to avoid the expense of acquiring a new route through private property. 4. That such existing highway is in bad condition for travel, is no just ground for the exercise of the right, upon a proposal to substitute a better road therefor; it is the necessity for the new use, not the inadequate condition of the old road, that is the test of the power. 5. Whether the act of April 29,1874, would authorize the issue of a charter granting an express power to take other corporate property or franchises, except incidentally and to such an extent only as would not destroy or impair the existing public use, not decided. 6. The rule that only irreparable injuries may be enjoined, has no application to acts, especially corporate acts, entirely without authority, for which there is no adequate measure of damages at law; and equity will enjoin the unauthorized appropriation of a public road by a turnpike company, though irreparable damage 'may not result therefrom to any one.

No. 92 July Term 1889, Sup. Ct.; court below, Equity Docket No. 2, page 271; C. P. in Equity. On October 5, 1885, W. W. Groff, Peter Dorsheimer and Andrew Johe filed in the court below their bill in equity against the Bird-in-PIand Turnpike Company, praying for an injunction to restrain the defendant company from constructing a turnpike road upon and over a certain public road in the township of East Lampeter, Lancaster county, commonly known as the Old Philadelphia Road. The defendant made answer, asserting a right under its charter to appropriate the old Philadelphia road for the purpose of building its turnpike road thereon, and denying that the plaintiffs would sustain any injury by reason of such appropriation. The pleadings are more fully stated in the master’s report. On October 3,188T, by agreement of all parties interested, the court appointed Mr. George N. Kline, examiner and master. At the hearings before him, the plaintiffs offered no testimony upon the question whether the turnpike road of the defendant company could have been constructed upon any route other than the bed of the old Philadelphia road; but for the defendant, several witnesses testified that the route adopted was the only feasible and practicable one, and that any other route would have necessitated the destruction of valuable improvements on private property, causing great damage to property owners. Calvin Cooper, a civil engineer, testified that the turnpike road occupied very nearly a direct line between its termini; that if built on a perfectly straight line, it would have been shorter and would not have occupied the bed of the old road, but that this would have necessitated going on private property and destroying private buildings, and to avoid destruction of valuable improvements the company would have been obliged to diverge very far from a straight line; that to build a turnpike road on any other practicable route would have cost from $40,000 to $50,000, a sum greater than the amount of the capital stock; that both to the north and to the south of the line of the old Philadelphia road engineering difficulties would be encountered, such as steep grades in some places,- marshy ground in others, railroad crossings, and the necessity of crossing a mill dam; and that it was not feasible and practicable to construct a road on any other route than the one adopted. The master’s report, filed January 19, 1889, was as follows: The examiner and master respectfully reports the following abstracts of the bill and answer. The bill, as amended, charges : 1. That the complainants are taxpayers and inhabitants of East Lampeter township, in the county of Lancaster and state of Pennsylvania, owning real estate adjoining what is known as the Old Philadelphia Road, in the said township; the said road being a public highway, laid out by law, and used as such for many years, and kept up and maintained by the supervisors of the townships through which it runs. 2. That the Bird-in-Hand Turnpike Company is a corporation organized under the act of April 29,1874, P. L. 73, on letters patent issued to it September 21, 1885, for the purpose of budding a turnpike road in said township, commencing at a point at the terminus of the Bridgeport and Horse Shoe Turnpike, in said township, and ending at the township line, between East Lampeter and Leacock township, in Lancaster county, near the village of Bird-in-Hand. 3. That the said defendant has, without any authority whatever, entered upon the said the old Philadelphia road, and is about to appropriate it, between the said terminal points, for the purpose of building its turnpike road upon it. 4. That- if the said defendant is permitted to so appropriate the said old Philadelphia road, the complainants and a vast number of other citizens of East Lampeter township and county of Lancaster, will not be permitted to travel over the said road free and uninterrupted, as is their right, but will sustain great and irreparable injury, utterly incapable of being compensated at law. 5. And pray that the said Bird-in-Hand company and its officers, etc., be enjoined from proceeding in its intended purpose of constructing a turnpike road, under its charter, on and over the said public road, on a portion of which the said defendant has already entered. The answer filed by the defendant company sets forth: 1. It neither admits nor denies the facts in the plaintiffs’ bill, 1st paragraph, and demands exact proofs thereof. 2. It admits the facts set forth in the 2d paragraph. 3. It admits that it has entered upon the said old Philadelphia road, and has appropriated it between the said terminal points, for the purpose of building its turnpike road upon it, but denies that it has done so, or is about doing so, unlawfully and without authority. It asserts its right to do so by its charter. It alleges, that to build a turnpike between the terminal points, it is necessary to lay it over the bed of said old Philadelphia road, said road being the shortest and only feasible and practicable route or line for a turnpike between said terminal points; that such pike must be laid either on the bed of said old Philadelphia road, or, by diverging widely from a straight line, in order to prevent destroying many valuable improvements along the line of said old road; that, by adopting the line of said old road, no injury would be done to any person or property, while the adoption of any other line would result in very serious injury to a large number of people, and be destructive of very valuable property. 4. It admits that, after completing said turnpike, travelers over it will be obliged to pay tolls; and denies that the complainants and others will sustain great and irreparable injury, utterly incapable of being compensated at law, or that they will sustain any injury whatever. It avers, that the construction of said turnpike on the bed of said road will be a benefit to the complainants and all others having occasion to use the road, in that they will not be required to pay any taxes to keep the said old road in repair, and will have a smooth, substantial, solid road to travel on at all seasons of the year, instead of the present clay road, which, at some seasons of the year has keen heretofore well nigh impassable on account of the softness and miry character of its bed: Concluding with the prayer that the bill may be dismissed with costs. FINDINGS OF FACT. The Bird-in-Hand Turnpike Company was chartered under the act of April 29,1874, by letters patent, issued on September 21, 1885. At the hearing before the proper authorities at Harrisburg, the applicants for the charter and the objectors were heard by their respective attorneys. The application, with the direction that letters patent issue, appear of record in Lancaster county in Charter Book No. 1, p. 30. The only clause necessary to be quoted is the second, defining the object of the corporation, and is as follows: “ Said corporation is formed for the purpose of constructing and maintaining an artificial road or turnpike, of stone, gravel or earth, to commence at a point at the terminus of the Bridgeport & Horseshoe Turnpike, in East Lampeter township, in the county of Lancaster, and ending at the township line between East Lam-peter and Leacock townships, near the village of Bird-in-Hand, a distance of about three and one half miles. The whole of said proposed road is in Lancaster county.” The capital stock was fixed at $20,000, divided into 800 shares of $25. Soon after the grant of the letters, the directory located the turnpike, appropriating for that purpose the bed of the old Philadelphia road, all of which lies between the terminal points of the charter, a distance of three miles and 1,458 feet, and commenced work immediately thereon. The old Philadelphia road has been a public highway since 1783, being laid out by viewers appointed by the Governor and Council of Pennsylvania on a petition presented in 1730-1. A return made in 1733, by courses and distances, from the city of Lancaster to its intersection with the King’s Highway, leading from Chester to Philadelphia, was approved by the Governor and Council, and the records certified to the courts of the respective counties, October, 1733, and by the court of Lancaster ordered to be opened: See Rupp’s History of Lancaster County, 262; Mombert’s History of Lancaster County, 134; III Colonial Records, 521; Road Docket of Lancaster County, No. 1, from 1729 to 1742, p. 104. The plaintiffs’ bill was filed October 5, 1885, seeking to restrain the defendant, and only after nearly $9,000 had been expended in building the road, being almost half the cost of the entire superstructure. ^ After the bill was filed the defendant proceeded to the completion of the road, and then asked the court to appoint viewers to examine and report upon the same, who returned that the turnpike was built in a competent and workmanlike manner, and recommended that the court grant the company the right to erect gates and collect and receive tolls. Application was then made to the court for this authority. At this point the court divided in opinion on the status of the case, and this resulted in sending it to the undersigned master for examination and report upon the rights of the parties. The master, from the testimony before him further finds: 1. That the old Philadelphia road, in the summer season, when not rainy, was a good road, with easy grade, with but few exceptions. 2. That at other seasons, from the late fall until sometime in the spring, a period running from four to six months, the road was at times almost impassable, if the period was rainy, by reason of the soft and miry character of its bed, when the road would be badly cut up; and then when the ground would be frozen, was hard, rough and very difficult to travel over. 3. The road is located in one of the most thickly populated parts of Lancaster county, and has a large amount of travel and hauling over it from all surrounding points. The Pennsylvania Railroad has a prominent station and warehouse at Bird-in-Hand, close to its eastern terminus. 4. The line adopted for the pike is very nearly direct between the termini, is on the bed of the old Philadelphia road, and along its entire route interferes with no private property. 5. [ Draft No. 2, and the evidence, show it to be the only feasible, reasonable and practicable route between the termini. Any other route would have diverged either to the north or to the south.] 1 The character of the surrounding country, on the south, is hilly near the creek, soft, and the hills steep. Near the eastern terminus, it would meet the railroad where there is a fall of about twelve or fourteen feet. On the north, the railroad (Pennsylvania) would be met at several places, to be crossed above or under grade; at Mill creek a dam to be crossed, and from that eastward to the terminus low ground, and would have been exceedingly injurious to private property. 6. [The change in the road from a highway to a turnpike will not work great and irreparable injury to the plaintiffs and others using said road. The pike gives a good and substantial road, ready for all uses, in all seasons of the year. It works no injury or damage to any one.] s The only change the turnpike makes is the substitution of tolls for taxes, and thus throws the burden of maintenance upon all who use it, without regard to residence, while, as a public highway, that burden must be met by the inhabitants of the township through which it passes. 7. [The change in the old road, from a public highway passing through a rural district to a turnpike, makes no change in the use of the road. The turnpike will be used for the same purposes and by the same modes of inter-communication as the old Philadelphia road had been.]3 CONCLUSIONS OU LAW. Under these facts, the question arises, has the defendant company under its charter, a right to appropriate the bed of the old Philadelphia road, for the purpose of building an artificial road or turnpike thereon ? The charter gives explicitly the termini. The road or pike to be built must be between these two points. It is silent as to the intermediate route. It does not grant the right, by express words, to take and occupy the bed of the old road, for the purpose of constructing the new one. Neither does it exclude or prohibit this defendant company from so doing. The question of location is left open to the judgment and sound discretion of the company, acting faithfully upon all the circumstances and necessities of the case, and “ will not be revised by the court, unless it appears that they have clearly exceeded the limitations of the charter and have acted in bad faith: ” Mills on Em. Domain, § 62, 2d ed. If, therefore, the power to appropriate, as was done in this instance, exists at all, it is the result of necessary implication; of a necessity which arises from a state “ of things over which the corporation has no control.” [In selecting the bed of the old Philadelphia road, and appropriating it to the uses of the new company, the latter appears to have been guided by the legislative requirements in relation to the laying out of public roads and highways, “ having respect to the shortest distance and the best ground for a road, and in such a manner as shall do the least injury to private property: ” Act of June 13, 1836, § 2, P. L. 555.] 4 There is no change in the use of the road. It is not like the change of a highway into a railroad. The turnpike will he used for the same purposes, and by the same modes of intercommunication as the old road had been, transit over on foot, by horse, in carriage, by wagons, and other mediums of transportation usually used on public highways. It is still a highway, and the land does not revert to the owner. It is not an additional burden on the old public road. The only change in its operation is the payment of tolls instead of taxes, and this is only a change in sustaining the road, and not a change of use. For such a change the adjoining owners are not entitled to compensation. In the rural districts, such as this is, through which this turnpike passes, they still own the land to the centre of the same, and the corporation, like the public, over the old road has but an easement or right of way : Mills on' Em. Domain, § 34. [The appropriation of the old road injures no one,] 5 but on the contrary furnishes a good, substantial macadamized road that can be used in all seasons of the year to the great comfort and convenience of the public, in place of one which, in many parts, for an average at least of one third of a year is almost impassable and extremely burdensome in its use. There is no difference in a charter, whether granted specially by the legislature, or granted under a general law of the state: Cochran v. Arnold, 58 Pa. 405. In Commonwealth v. Railroad Co., 27 Pa. 354-5, Black, C: J., says: “ Of course, when the power is given in express words, there can be no dispute about it. It may also be given by implication; for instance, if a company be authorized to make a railroad by a straight line, between two designated points, this implies the right to run upon, along or across all the streets or roads which lie in the course of such line. So, also, when an act of incorporation directs a road to be made between certain termini, by such route as the grantees of the privilege shall think best, it may be located on an intervening street or other common highway, if, in the judgment of the directors, it be necessary or expedient to do so. But, when an act of incorporation authorizes the making of a railroad, which it is not possible to make without using the streets of a town for part of it, still such streets cannot be so used, if the same act of incorporation forbids it. If the powers given to the corporators cannot be executed without disregarding the restrictions with which they are coupled, they cannot be executed at all.” In the charter of this company there is no restriction of any kind. “In determining whether a power, generally given, is meant to have operation on lands already devoted by a legislative authority to a public purpose, it is proper to consider the nature of the prior public work, the public use to which it is applied, the extent to which the use would be impaired or diminished by the taking of such part of the land as may be demanded by the subsequent public use..... If an implication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject matter of it, so that by reasonable intendment some especial object sought to be attained by the exercise of the power granted, could not be reached in any other place or manner: ” City of Buffalo, 68 N. Y. 167. The master, on the facts found, and the law governing the case, as he conceives it to be, finds that the corporation defendant, [the Bird-in-Hand Turnpike Company, has not “unlawfully and without any authority whatever,” entered upon the “ Old Philadelphia Road,” and appropriated it between the terminal points specified in its charter; but, on the contrary, he finds that its entry upon and appropriation of that part of the “Old Philadelphia Road,” for the purpose of building its turnpike road upon it, was lawful, and with authority under its charter.] 6 [He therefore recommends to the court a decree dismissing plaintiffs’ bill, at their costs, with a further decree, that the defendant have permission to erect toll-gates upon the line of their .road, and receive and collect such tolls as the law authorizes.] 7 To the foregoing report various exceptions were filed by the plaintiffs, which the master overruled. The plaintiffs thereupon filed in court exceptions specifying that the master erred: 1-6. In his findings and conclusions in [ ] 1 to 6 7. In reporting the decree recommended by him.7 8. In not recommending a decree in accordance with the prajmr of the plaintiffs’ bill. The court after argument overruled the exceptions filed, confirmed the report, and entered the decree reported by the master, Patterson, J., saying: “ The master took some thirty-seven or more pages of testimony from which he found the facts submitted in his report. We have read the report, and his application and conclusions of the law on the same, and the whole case of the plaintiffs in their bill as it appears to the court, affords no ground for the injunction. Therefore, let the decree reported by the master dismissing plaintiffs’ bill at their costs be confirmed.”9 The plaintiffs thereupon took this appeal specifying that the court erred: 1-8. In overruling the exceptions to the master’s report.1 to 8 9. In confirming the report of the master and dismissing the bill.9