Penna. R. v. Diem

Citations

• 128 Pa. 509
• 18 A. 522
• 1889 Pa. LEXIS 810

Syllabus

<p>1. The privileges conferred upon the Pennsylvania Railroad Co., by the act of March 27, 1848, P. L. 273, with relation to changes in the site of a portion of any turnpike or public highway, are, by virtue of the act of May 16, 1857, P. L. 519, exercisable by it as the purchaser and owner of the Philadelphia and Columbia Railroad.</p> <p>2. The right of said company to change the site of a public highway is not confined to cases in which the highway is occupied longitudinally by the tracks of the railroad, but exists as well in cases where the construction or reconstruction of its road-bed across a highway renders such a change of site necessary.</p> <p>3. It is not essential that the necessity to justify such a change should be one insurmountable by engineering skill and money; the question in any given case is, not what is possible, but what is reasonably practicable, in view of all the difficulties encountered in adjusting the two roads to each other.</p> <p>4. The circumstances out of which the necessity for such a change must arise, are left by the statute to be determined in each case by the railroad company, in the first instance, and its determination of the question is conclusive, in the absence of an abuse or misuse of the power thus committed to it.</p> <p>5. An abuse or misuse by the company of this discretion committed to it, may be restrained or redressed through the courts; but township supervisors have no power to revise its action and of their own motion to re-open upon the original site a road which the company has changed and reconstructed upon another location.</p>