Homestead St. Ry. v. Pittsburg & Homestead Electric St. Ry.

Citations

• 166 Pa. 162
• 30 A. 950
• 1895 Pa. LEXIS 1170

Syllabus

<p>Street railways—Occupation of highways—Act of May 14, 1889.</p> <p>Under the act of May 14, 1889, P. L.-211, two street railway companies cannot be authorized to lay their tracks upon the same highway.</p> <p>The statutory power of incorporation can only be executed in favor of a company which will construct and operate a railway on a street or highway upon which “ no track is laid or authorized to be laid,” under any existing charter.</p> <p>The time of which the act speaks is the time of proposed incorporation, and the act does not refer merely to charters existing at the date of the passage of the act.</p> <p>Street railways—Consent of local authorities—Consent prior to incorporation—Act of May 14, 1889.</p> <p>The source of authority to lay a track upon a highway is not the municipality, but the commonwealth, through its enabling legislation. The municipal consentís an incident, but necessarily of subsequent occurrence. So far as incorporations are concerned the authorization to lay the track is complete when the charter is obtained.</p> <p>Defendant, a street railway company incorporated under the act of May 14, 1889, P. L. 211, obtained its charter Nov. 16th, and the municipal consent Dec. 19th. Plaintiff, also a street railway company, incorporated under the act of May 14,1889, obtained its charter on Nov. 29th, and the municipal consent was granted Nov. 20th, prior to its incorporation. Held (1) That defendant was legally authorized to lay a track on the disputed highway at the time of plaintiff’s application for a charter. (2) That defendant obtained the municipal consent to lay the track within a reasonable time after the grant of its charter, and therefore consummated its legal right by the speedy acquisition of the municipal-consent. (3) That plaintiff was subject to the prohibition of the statute at the time of application for a charter, and could not acquire a right to occupy the disputed highway with a track in hostility to the previously acquired