Pennsylvania. Supreme Court.

Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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that there were not two full terms between the appointment of the jury and
the confirmation of their report.

3. The regulation of a street in a city or incorporated district is given to
the corporation, only for the corporate purposes, and is subject to the para-
mount authority of the state in respect to its general and more extended



4. The provision in the constitution, that private property shall not be
taken for public use without compensation, does not prohibit the legislature
granting to a railroad company the privilege of layiug rails on the streets
of a city or town, and of using the railroad so made.

5. There is nothing in the constitution to prevent the grant of such a
monopoly as a railroad.

THIS was a certiorari to the Court of Quarter Sessions for the
County of Philadelphia, to remove the proceedings in the matter
of the Philadelphia and Trenton Railroad Company.

The proceedings in this case were instituted under an act entitled
" A further supplement to an act entitled an act, authorizing the
governor to incorporate the Philadelphia and Trenton Railroad Com-
pany," passed on the 22d of March 1889; the material provisions
of which are as follows:

"Sect. 1. That the Philadelphia and Trenton Railroad Company
be, and they are hereby authorixed, to continue the railroad of
said company, in its present location, along Frankford road and
*Maiden street, in the district of Kensington, until the said r*.)fi
company conveniently can locate and construct another
railroad upon another route from their depot in Kensington to their
depot at the corner of Third and Willow streets, in the district of
Northern Liberties; the said privilege of continuing their road as
aforesaid, not to extend longer than one year. And that James
Ronaldson, Thomas D. Grover, and Daniel Smith (carpenter), be,
and they are hereby appointed commissioners to view and examine
the said road, and to consider and determine if any damages, and
to what amount, any owner of property along the line of the said
road in the district of Kensington may sustain; or if any damages,



26 SUPREME COURT [Dec. Term,

[Philadelphia & Trenton Railroad Co.J

and to what amount the district of Kensington at large may sus-
tain, and ought of right and equity to be paid by reason of said
road remaining upon and continuing along the line of Frankford
road and Maiden street aforesaid. And upon the award of the
commissioners aforesaid, the Philadelphia and Trenton Railroad
Company shall pay to any and all persons, or the corporation of
the district of Kensington, the full amount of damages awarded by
said commissioners, and at such times and such manner as they
shall direct : Provided, That the said company shall not be required
to pay damages for a longer period than the time the said road and
street shall be occupied by the said railroad; and the said road and
street shall be put in as good condition and order as they were when
the said company first laid their rails thereon.

Sect- 2. And the said Philadelphia and Trenton Railroad Com-
pany are hereby authorized, as soon as they conveniently can, and
they shall within one year, locate and construct a railroad from
their depot in the district of Kensington, to their depot at the cor-
ner of Third and Willow streets, in the district of the Northern
Liberties by the best route along the streets between said depots,
and for that purpose they may occupy such street or streets as shall
be most beneficial and convenient ; which location, before the con-
struction of said road, shall be approved of by the judges of the
Court of Quarter Sessions of the county of Philadelphia, upon the
view of six disinterested jurors, to be appointed by said court as
directed, who, on being applied to, are hereby required to act in
the premises; the said railroad to be on a level with the pavement
or surface of the street or streets, and that the said railroad shall
be so constructed as not to form any unnecessary obstructions to
the free use and passage of any street or streets in which the same
shall be located and constructed ; and that in making said location
through Kensington and the Northern Liberties aforesaid, regard
shall be had to the public business, trade and private property in
and through the same, so that in the making of such location to
interfere with and injure as little as possible such said public busi-
ness, trade and private property, the said company shall at all times,
at their own cost, keep in good condition and repair so much of all
*O7-| or anv streets, "lanes or roads, along which the road may
run in and through the said districts, as may be used by
said company, so that the passage along and over said railroad may
be safe and convenient."

In pursuance of the provisions of the act, the Court of Quarter
Sessions for the County of Philadelphia, on the 1st day of Febru-
ary 1840, appointed a jury of six persons to view and locate the
road; and ordered that public notice be given of the time and
place of meeting of the viewers in two daily newspapers for four
days.



1340.] OF PENNSYLVANIA. 27

[Philadelphia & Trenton Railroad Co.]

On the llth of February 1840, the viewers made the following
report :

" The undersigned, jurors or viewers appointed by the judges of
the Court of Quarter Sessions of the Peace for the County of Phila-
delphia, by the order of the said court hereunto annexed, met in
pursuance of previous notice, on Friday, the seventh day of Febru-
ary, instant, at 10 o'clock, A. M., at Evans's hotel, in George street,
near to and west of Sixth street, and were all duly sworn or
affirmed according to law ; and then and there W. M. Kennedy,
representing the district of the Northern Liberties, and certain in-
dividuals, and James Goodman, representing the district of Ken-
sington, discussed before said viewers the construction of the act of
assembly under which they were appointed, and the duties to be
performed by said jurors or viewers under their said appointment;
and the said viewers then proceeded to examine the different routes
upon which to make a location of the railroad from the depot of
the said Philadelphia and Trenton Railroad Company, in the dis-
trict of Kensington, to the depot of the said company at the cor-
ner of Third and Willow streets, in the district of the Northern
Liberties ; and the said examination was made in the presence of
William M. Kennedy, the counsel aforesaid, and other persons
claiming to be interested in the location of the said railroad ; and
the said viewers heard the suggestions and opinions of the persons
so attending with regard to the location and the effects thereof ;
and the said viewers adjourned to meet at Evans's hotel, in George
street, on Monday, the 10th day of February instant, at 7 o'clock,
p. M., and at which last mentioned time and place, all the jurors or
viewers being present, they heard a further discussion upon the
subject of the law, and what was proposed to be proved by William
M. Kennedy on behalf of the districts and persons objecting to the
location of the said railroad ; and also having heard the counsel
for the said Railroad Company, the jurors or viewers did not con-
sider that any further examination of witnesses upon the subject of
their duties could in any manner aid them in arriving at a proper
decision as to the location of the said railroad; and the said jurors
or viewers then adjourned to meet at Evans's hotel, on the llth
instant, at half-past one o'clock, P. M.

*And now, to wit, at the time and place last aforesaid, r*9o
the viewers or jurors all being present, do make the follow-
ing report to the said court: " Having taken into consideration,
and having had regard to the public business, trade and private
property in and through the said districts, as well as the best route
for the location of the said railroad along the streets between the
said depots, do hereby make the following location under the provi-
sions of the said act :

" Beginning at a point laid down on the annexed plan on the



28 SUPREME COURT {Dec. Term,

[Philadelphia & Trenton Railroad Co.J

west side of the lot on which the depot of the said company ia
located, in the district of Kensington, and running south-westerly
into Front street, above Harrison street, and thence down Front street
to Willow street, and thence up Willow street to the depot of the
Philadelphia and Trenton Railroad Company, at the corner of
Third and Willow streets, in the district of the Northern Liberties;
which said location is represented upon the draft hereunto annexed.
In witness whereof, we have hereunto subscribed our names, this
eleventh day of February, Anno Domini, 1840."

The following exceptions were filed to the report on the part of
the holders of property on Front street and the commissioners and
inhabitants of the Northern Liberties :

'" Exception 1st. The parties interested were misled by the said
company's calling the jury together in the city, and were hindered
access to the said jury in passing along Front street, and from
knowing that the said jury were viewing the said route, by their
being conducted along said Front street in an omnibus provided by
the said company, thereby separating the said jury from the pro-
perty holders assembled at the corner of Willow and Front streets,
and hindering the said parties interested in said route from being
heard in the premises before the said jury.

2d. The jury were guilty of gross misconduct in the performance
of their duties.

Spec. 1. They declined hearing the opponents of said road, read
sections from the charter of said company, to show the nature
of the said road, and the duties of the jury in the premises
prior to said view.

2. They entered an omnibus at the corner of Front and Willow
streets, provided by said company, leaving a number of the
parties assembled there to sustain their interests in the street ;
thereby withdrawing from the said parties interested, and deny-
ing to them access to the said jurors while examining in the
said omnibus the said route.

3. The jurors retired from the room in which they were con-
vened on the 10th instant, as announced at the time for the
purpose of deliberating upon an application for a postponement

*291 or * a( lj urnmerit made by W. M. Kennedy, for the pur-
pose of affording an opportunity of procuring deposi-
tions touching matters contested; and with the view of
avoiding consumption of time by an examination of the same
witnesses upon the same matters, and for the purpose of afford-
ing Messrs. Goodman and Ingersoll an opportunity of exhibit-
ing the evidence, and of being heard in behalf of the parties
represented by them ; and during their said absence as afore-
said, they, the said jury, in the absence of the parties interested,
and in denial of their right to be heard by themselves or their



1840.] OF PENNSYLVANIA. 29

[Philadelphia & Trenton Railroad Co.]

attorneys, and by other proofs and allegations in the premises,
wrongfully determined upon all the matters contested in the
premises, and returned to the room, when convened, and to
the great surprise of the parties interested, and in attendance
for the purpose of being heard before said jurors in the prem-
ises, announced that the said jurors had determined all matters
and did not wish to hear any of the parties in the premises.

The said jury refused to allow W. M. Kennedy to examine
Alderman Mott, John E. Keen, John Manderson and others,
witnesses then present, for the purpose of showing the char-
acter of the public travel, business, trade and the value of
private property upon the said street, and upon other streets
or routes, and for the purpose of showing the relative effect
of the said railroad upon the public travel, trade and con-
venience, and upon the value of the private property upon
said routes.

The said jury refused to inquire into the extent of the public
trade and business, the value of private property, and the
manner in which the same are affected by the location of a
railroad upon a public street, and the effects of the said loca-
tion on Front street, although an offer to examine witnesses,
and furnish proof by witnesses then present, was made by
different persons representing several interests to the said
jurors, in a respectful manner at the said meeting on the
10th instant.

The said jurors, prior to viewing the said route, agreed and
announced said agreement, to meet on the 10th instant, at 7
o'clock P. M., to hear the parties objecting to the proposed
routes, &c., upon the motion of James Goodman ; and having
convened according to said adjournment, withdrew from the
parties interested, assembled to make their objections to said
proposed route, and made, up their minds as to the course they
intended to pursue during the time they were so withdrawn
from the said parties interested ; and upon returning to said
room, announced through the chairman thereof, that they had
made up their minds upon the law and subject, and refused to
hear the parties interested, their objections to the said pro-
posed route, and their proofs and allegations in the premises,
and the views of the said parties upon the acts of assembly,
and *matters involved in the premises, and contested T*OA
before the said jury.

The said jurors, though authorized and required to act in the
premises, refused to entertain the claims of the district of the
Northern Liberties, and the owners of property on said Front
street, for damages for the injury sustained by them in the
location of said railroad upon said Front street.



30 SUPREME COURT [Dec. Term,

[Philadelphia & Trenton Railroad Co.]

The said jury, in the presence of the said parties, adjourned
without naming any time and place to which they stood ad-
journed on the 10th instant.

The said jury held a meeting on the llth instant, at Evans's

hotel, in the premises, without giving any notice thereof to

the parties interested, in opposition to the said location and

K " railroad company; of which meeting the said company had

notice, and attended by their agents thereat.

The said jury have betrayed on the face of their said report, a
consciousness of misconduct, and have sought to anticipate,
excuse and forestall exception thereto, in behalf of the parties
aforesaid, interested as aforesaid. Their report is not full ; it
is partial, and intended to conceal and mitigate misconduct
complained of.

3d. The said act of assembly, so far as the same authorizes the
location of the said railroad upon Front street and Willow street,
if any such authority is given therein, is unconstitutional and void.

Spec. 1. It impairs the obligation of contracts between the said
Philadelphia and Trenton Railroad Company and Kensington
district ; between said company and the district of the North-
ern Liberties, and between said company and the Philadelphia,
Trenton and Northern Liberties Railroad Company.

It impairs the obligations of the several contracts under which
the property holders hold, and have improved their properties
upon the said route.

It divests vested rights of property, corporeal and incorporeal.

It incutnbers private property with a servitude for the private
benefit of a private company.

It affords no compensation for damages, and does not take the
said private property for public use, but for private use.

The said act does not make the said railroad a highway or pro-
vide for the public use thereof; nor is the common use of the
said road upon equal and reasonable terms, and toll secured
to the public as a public and common right.

4th. The route located by the said jury is not in pursuance of
the directions of the said act of assembly ; it is located through
*31 1 P r ' vate *property ; it is not between said depots, but extends
' beyond the same at each end thereof.

It intersects Front street, north of the Kensington depot, and
extends south of the Northern Liberties depot, and is not
between the same.

It is not another railroad upon another route from their depot
in Kensington to their depot at the corner of Third and
Willow streets.

It is not upon the best route along the streets between the
said depots.



1840.] OF PENNSYLVANIA. 31

[Philadelphia & Trenton Railroad Co.]

It greatly damages the property of the districts through which
it passes, of the owners of the soil upon which it is located,
and cannot be constructed until compensation is made
therefor.

The location thereof upon Willow street is a fraudulent pre-
tence upon the part of the company, in fraud of the rights of
the district of the Northern Liberties, of the Philadelphia,
Trenton and Northern Liberties Railroad Company, of the
public right of highway thereon, and of the written contracts
of said company."

The agreements or contracts referred to in the third exception
were as follows :

" Articles of agreement, had, made and entered into this twenty-
first day of March A. D. one thousand eight hundred and thirty-
nine, between the commissioners and inhabitants of Kensington
district of the Northern Liberties on the one part, and the Phila-
delphia and Trenton Railroad Company of the second part

" Witnesseth, that whereas the ordinance of the 19th of August,
A. D. 1836, by the party of the first part, and acceded to and ac-
cepted by the party of the second part, has expired ; and the party
of the second part has been desirous to have and occupy the route
of railroad as now laid down, for a further period of time ; and
whereas the same has not been considered advantageous to the in-
terests of the said party of the first part ; but, in order to enable
the party of the second part to have a continuous line of railroad,
have, by a resolution of the board of said party of first part granted
permission to said party of the second part to continue, as hereto-
fore, the use of said streets on which their railroad is now made
for such further time as they deem fit and proper, viz., the party
of the second part, they paying therefor to the party of the first
part the annual sum of two thousand dollars, in quarterly payments,
on the twenty-first days of June, September, December and March,
in each and every year, or at that rate, for such period of time as
they the party of the second part shall use and occupy for railroad
purposes the same ; and in case of non-payment and notice to that
effect given to the party of the second part, they, the party of the
first part, may and *can take up said rails at the expiration r*qo
of ten days thereafter, at the proper cost and charge of the
said party of the second part ; and all privileges and all restrictions as
to the right of travel on the road, as provided for in the ordinance
aforesaid, shall continue and remain as heretofore. Now, therefore, it
is mutually agreed that the party of the second part shall annually
pay at the rate of two thousand dollars per annum, for the privi-
leges aforesaid, so long as they shall use the same, and in quarterly
payments as aforesaid, if a quarter of a year shall be due, or so
much as shall be due ; and the party of the first part covenants that



32 SUPREME COURT [Dec. Term,

[Philadelphia & Trenton Railroad Co.]

all and every of the privileges extended under ordinance of the
19th of August, 1836. be continued during the time of the conti-
nuance of these covenants between the parties."

" Articles of agreement made this twenty-third day of October,
in the year of our Lord one thousand eight hundred and thirty-
nine, between the Northern Liberties and Penn Township Rail-
road Company of the first part, and the Philadelphia and Trenton
Railroad Company of the second part :

" Witnesseth, that the party of the first part for the consideration
hereinafter stated and agreed to be paid by the party of the second
part, to the party of the first part, do hereby give and grant unto
the said party of the second part, at all times the free use of all
that part of the railroad of the Northern Liberties and Penn
Township Railroad Company from Front street to Third street,
along Willow street, for the railroad cars belonging to the said
Philadelphia and Trenton Railroad Company for the transportation
of passengers, merchandise, &c., until the 23d day of February,
A. D. 1862, and to commence from and immediately after the deter-
mination of the contract which now exists, between the said two
companies for the use of the said road, subject to such rules and
regulations as the board of managers of the party of the first part
may adopt for the general government of the said railroad, not
inconsistent with the rights hereby granted to the party of the
second part. And the party of the first part further agree, that
they will keep that part of their railroad from Front to Third
street, along Willow street, which is embraced within this contract,
in good repair, and at all times to correspond with the construction
and superstructure of the Philadelphia and Trenton Railroad as
the same is or may hereafter be made, as may be necessary to the
connection of the said roads, so that the union of the two roads at
the corner of Front and Willow streets may form a continuous track
ot railroad from the depot of the Philadelphia and Trenton Railroad
Company, in Kensington, to their depot at the corner of Third and
Willow streets. And should it be required at any future period
that the Philadelphia and Trenton Railroad Company should lay a
track on a wider superstructure than the width which is now used,
*qq-i so as to correspond with the line *of railroad between Tren-
ton and Jersey City. It is agreed that in such case the
said Philadelphia and Trenton Railroad Company shall have the
right to make such alterations as they may desire at their own ex-
pense, in the width of that part of the Northern Liberties and Perm
Township Railroad embraced in this contract. Provided said alter-
ations if made shall not in any way interfere with the free passage
of cars built according to the regulations of the Canal Commission-
ers for the Philadelphia and Columbia Railroad on and over said
Northern Liberties and Penn Township Railroad. And the Phila-



1840.] OF PENNSYLVANIA. 33

f Philadelphia <fc Trenton Railroad Co.]

delphia and Trenton Railroad Company, the party of the second
part, hereby covenant and agree to pay to the Northern Liberties
and Penn Township Railroad Company, the party of the first part,
for the use of the said railroad the sum of five hundred dollars each
and every year during the continuance of said contract, and the
said payment to be made quarterly, the first quarter to be paid
three months after the determination of the agreement now existing,
and quarterly thereafter. And it is further agreed by and between
the said parties hereto, that if the railroad of the Philadelphia and
Trenron Railroad Company shall not be located and constructed
under the provisions of the act of the General Assembly of Penn-
sylvania passed the 23d day of March, in the year of our Lord,
1839, from their depot in Kensington to their depot at the corner
of Third and Willow streets, along Front street to Willow street,
then and in that case the contract shall cease and determine and
be of no force and effect, anything herein contained to the contrary
notwithstanding."

Depositions were taken in support of and in opposition to the
exceptions relating to the proceedings of the jury ; and after argu-
ment the Court of Quarter Sessions dismissed the exceptions and
confirmed the report.

The case was then removed to this court by certiorari ; and the
following exceptions were filed.

1. The said jury were appointed without any authorized application

by the Philadelphia and Trenton Railroad Company, and with-
out the knowledge or consent of the said company or the
directors thereof.

2. The court erred in appointing said jury to view and locate a

railroad under the provisions of the said act, &c.

3. The jurors were not sworn by the court, nor by authority from

the court, nor in the terms prescribed by law.

4. The parties interested were misled by the advertisement calling

the jury together in the city.

5. The jury were guilty of misconduct, in not hearing the owners

*of property upon Front street, their proofs and allega- r*o
tions upon the matters before them.

6. In refusing to hear evidence of the injurious effects of said

railroad to private property, to public business and trade upon
the said street.

7. In refusing to entertain or consider the claims of private pro-

perty holders for damages for the injuries done them by the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 3 of 75)