Pennsylvania Railroad v. Inland Traction Co.

Citations

• 25 Pa. Super. 115
• 1904 Pa. Super. LEXIS 25

Syllabus

<p>Street railways — Railroads—Railroad company as abutting owner — Turnpike road — Equity—Doubtful right.</p> <p>Ownership in fee of the bed of its railroad where the same crosses a public highway does not put a railroad company in precisely the same position with reference to the right of a street railway company to lay its tracks upon the highway that its vendor would have held, if he had not parted with his title, but by reason of the provisions 'of section 18 of the Act of May 14, 1889, P. L. 219, as the latter is qualified by the provisions of sec. 2, of the Act of . 1871, P. L. 1360, the railroad company holds subject to the lawful uses of the highway, and amongst them its use for the passage of the cars of a street railway company, provided of course, that the latter is otherwise fully entitled soto do. This proposition is applicable to all the land which in a legal sense constitutes the roadway, or it is commonly called, “ the right of way ” of the railroad company at the point where it crosses the highway ; but unless the lands of the railroad company held in fee can fairly be said to be a part of its roadway, where it crosses a highway, the right of the owner, though a railroad corporation, as against the asserted right of a street railway company to lay its tracks upon a suburban road, is as perfect as that of a private individual. If it is doubtful whether the land owned in fee is, or is not a constitutent part of the roadway or right of way, the court will not restrain a street railway company from laying its tracks on the turnpike on which the land abuts, and extending them on the turnpike across the railroad’s right of way.</p>