Pennsylvania Railroad Company's Appeal

Mr. Justice Gordon

delivered the opinion of tne court, March 1st 1880.

About the right of the Lombard and South Street Passenger Railway Company to have its tracks on Dock street there is no dispute. It had occupied this ground from the year 1863 by virtue of a charter granted to it by the legislature of this Commonwealth. As between itself and the Pennsylvania Railroad Company it had the prior right, and that company, the present appellant, can justify its conduct, in entering upon and removing the appellees’ tracks, only by the exhibition of a better right — some superior authority. Such right and authority it claims by virtue of the Act of March 12th 1873, Pamph. L. 253. Upon the construction of this act the result of this controversy depends. By the first section thereof, the Pennsylvania Railroad Company was authorized to'construct a double track railroad upon the easternmost thirty feet of Delaware avenue, in the city of Philadelphia, as relocated between Queen *159 and Washington streets, and as widened between the north side of Dock street and Christian street, with such connections with its Delaware river extention and turnouts as may be necessary. This section gives this company no power to go beyond the line of Delaware avenue at the northern or Dock street end of its route, for there it had neither connections nor turnouts. Were this all the defendant had to show for its right to enter upon Dock street and the appellees’ franchise, the case would be a short one, for here is no warrant whatever for the assumption of such powers. But it is said that such authority is found, if not by direct grant yet by necessary implication, in the second section. That part of this section, which is material to the point under discussion, reads as follows : “And the said company is hereby further authoi’ized to take and hold, in fee-simple, such ground and property, near and convenient to said avenue or streets, as said company may deem necessary for depot and other railroad purposes.”

Now, it is said, as power is here given to take and hold ground and other property, near or convenient to said avenue or streets, for depot and other railroad purposes, it must necessarily have the right to use the adjacent street and intervening franchise in order to gain access to its depot or other property. This may be so, but this plea o-f necessity is so frequently used to cover infractions of both public and private rights that, prima facie, it is suspicious, and must be closely scrutinized, especially where it is used to carry corporate privileges beyond charter limits. This plea, in the first place, must be tested by the rule, now of universal acceptation, that all acts of incorporation, and acts extending corporate privileges, are to be construed most strongly against the companies setting them up, and that whatever is not unequivocally granted must be taken or withheld. This rule is to be held in all its rigor where the attempt is so to construe a corporate grant as to interfere with a previous grant of the same kind: Packer v. The Railroad Co., 7 Harris 211. It is true that a franchise is property, and, as such, may be taken by a corporation having the right of eminent domain, but in favor of such right there can be no implication unless it arises from a necessity so absolute that, without it, the grant itself will be defeated. It must, also, be a necessity that arises from the very nature of things-, over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. To permit a necessity, such as this, to be used as an excuse for the interference with, or extinction of, previously granted franchises would be to subject these important legislative grants to destruction on a mere pretence, in fact, at the will of the holder of the latest franchise.

Now, the appellant admits that it has entered upon, and, for its own uses and purposes, has destroyed part of the plaintiff s road, *160 but it attempts to justify its action in that it was necessary for it so to do in order to reach its depot on Dock street. But the question recurs, how came it that this warehouse was placed in such a position that it became necessary to enter upon and cross Dock street in order to reach it? The answer is found in the testimony of Mr. Kneass, the assistant of the president of the railroad company. He says, the whole block, from Walnut to Dock, and from Delaware avenue to Water street, excepting some stores fronting on Dock street, at the corner of Water street and at the corner of Delaware avenue, was purchased for the use of a freight depot, and the offices necessarily connected therewith. But we learn from the evidence of Mr. Trautwine, whose ability as an engineer no one doubts, that .a practical entrance to this depot might be made either at the corner of Delaware avenue or at a short distance north of it. This, of course, would avoid any interference with the rights of the appellee, but the appellant did not purchase, or take, as it might have done, the property on the corner of Dock street and Delaware avenue, and so was obliged to enter upon, with its tracks, and cross Dock street in order to reach its warehouse. The reason why this property was not purchased or taken, is explained, by the witness first above mentioned, to have been that the necessities for that property were not imperative and the price therefor not satisfactory. He also says, further on, that the reason for not purchasing this property was one of economy merely. We thus discover that this necessity, by which the unlawful acts of this company, appellant, are sought to be excused is one of its own making — a matter af economy. It is cheaper to use Dock street, and the appellees’ franchise, than to buy the property above mentioned. A defence more weak, or one more barren of equity, could scarcely be imagined. Moreover, though a franchise may be property such as a corporation, vested with the power of eminent domain, may take for its own uses, a public street or highway is not such property. It is a public franchise and cannot be violated except by direct legislative grant: Commonwealth v. Erie and North East Railroad Co., 3 Casey 339; Cake v. Philadelphia and Erie Railroad Co., 6 Norris 307. But for the invasion of Dock street the appellant has shown no legislative grant; its structures upon that street are merely nuisances ; hence, it follows, that the plaintiffs’ tracks were protected from disturbance, if for no other reason, because they were upon ground dedicated to public use, and upon which the appellant had no right to enter.

The decree is affirmed, the appeal is dismissed, and the appellant ordered to pay the costs.