Larimer & L. St. Ry. Co. v. Larimer St. Ry. Co.

Citations

• 137 Pa. 533
• 20 A. 570
• 1890 Pa. LEXIS 993

Syllabus

<p>1. Although the unauthorized occupation of a public street by a railway track may be regarded as a nuisance, per se, which will be enjoined, an injunction against it will not be granted at the suit of a private citizen, or a corporation, unless the plaintiff can make out a case of special damage.</p> <p>2. Under § 9, article XVII. of the constitution, and § 15, act of May 14, 1889, P. L. 211, the consent of a city to the construction of a street railway upon its highways, is a condition precedent thereto, and without it a company incorporated under the act of 1889 has no right, present, or prospective, to occupy streets for that purpose.</p> <p>3. Wherefore, such a company, not having obtained such consent, has no standing by a bill for an injunction to question the right of another company, subsequently incorporated, to occupy for its railway streets covered by the prior charter; having itself no right to occupy such streets, the older company cannot be said to suffer special damage.</p> <p>4. If a city ordinance, specially authorizing a particular street-railway company by name to occupy certain streets, is invalid as a special grant to said company, it is absolutely void; it cannot be given a general effect, so as to enure to the benefit of another company having a prior charter for the streets named.</p> <p>5. Whether by § 7, article LX, of the constitution, or by § 52, act of May 16, 1889, P. L. 228, relating to streets and sewers in cities of the second class, the councils of such a city are precluded from passing a special ordinance granting consent to the construction of a street railway by a particular company, incorporated under act of May 14, 1889, P. L. 211, not decided.</p>