part of the contract, in effect, a contract between 774. The Court below, in the case first cited, had them and the bondholder, their liability by the based its decree on Spencer's Case, and Keppell contract will continue until the last bond has been v. Bailey, 2 Myl. & K. 517; Tulk v. Moxhay paid; that is, nothing the obligor in the bond, was cited by us as overruling Keppell v. Bailey, the Gettysburg and Harrisburg road, may do in and deciding that where the covenant was, the violation of the contract, can relieve plaintiffs purchaser and his assigns would use or abstain from, in substance, their contract with the bond- from using the land in a particular manner, that holder, to continue to set aside fifteen per cent. equity would enforce the covenant against all of the gross receipts for purchase of bonds. The purchasers with notice of it. The doctrine of South Mountain and Gettysburg roads having that case has been applied in later cases in Engreceived in large part the consideration for enter- land only to restrictive covenants. But this ing into the contract, and the contract not being Court has not so limited the principle, by conin violation of law, it ought to be enforced fining the administration of equity in like cases specifically, if it be of such terms, as that it is to a restraining order; to accomplish equity, capable of enforcement in equity, and if the par- where there is no adequate remedy at law, often ties, as they now stand in relation to each other, demands mandatory orders; thou shalt do, as well can be brought within the jurisdiction of equity, as, thou shalt not. True, the restrictive order is so that the hand of a chancellor will reach them. generally more easily enforced, than one purely First, as to the Gettysburg and Harrisburg mandatory; in practice, often, the latter is inRailway, which by the consolidation now stands capable of enforcement; but where such order as the representative of the South Mountain and can be enforced in aid of an equitable decree, it Gettysburg and Harrisburg Railroad Company. will be issued and ought to be. In the mere A controlling interest in the stock of the two change of name and personnel of the boards, we merged and consolidated roads, was obtained by see no serious obstacle to a mandatory writ in the Philadelphia and Reading, which controlled aid of a restraining order. the Philadelphia, Harrisburg and Pittsburgh It is further argued, that as the term for which Railroad, a parallel and competing line with the the contract was made is not fixed, therefore it Cumberland Valley, constructed long after the continued only during the will of the parties, contract. It was manifestly, therefore, to the and might be revoked by either on notice. This, Reading's interest as the practical owner of a as a general proposition, if the fact were as stated, competing line, to break the contract with the is correct, and it is so held in Pa. Railroad v. plaintiffs. It proceeded to do so without hesi- River Front Railroad, 168 Pa. 357, and the authortation, acting nominally through the new boards ities there cited. But the term in this contract of management in the roads over which it had is fixed by the plainest implication; the bonds to secured control. But a change of persons in a be purchased, ran for thirty years; the obligation corporation board of directors, does not change of plaintiffs was to set aside annually fifteen per the identity of the corporation, nor its contract cent. of the gross receipts, to be used in annual liability; nor is the obligation of the other party purchase of the bonds. The term of defendants' to the contract affected; such change can no more obligation under the joint contract, must be corelieve the corporation from its contract liability extensive, as to time, with plaintiffs' obligation than from the $250,000 mortgage on its corpor- to set aside and pay; that is, thirty years. ate property. What effect the dissolution of the Nor is the contract so indefinite in its terms, corporation under judicial decree, or the sale of that performance cannot be decreed; for nine its franchise and property under proceedings in years they operated their roads under the agree bankruptcy, would have on unsecured contracts, ment without, so far as appears, finding it necesare altogether different questions. Here, the two sary to resort to the arbitration clause in case of corporations, at the instance of stockholders hav- dispute; its indefiniteness is first alleged, when a ing full knowledge of their prior contract, were motive exists for breaking the contract. While consolidated under a new name and different the exact details, by which each shall receive management; but for juridical purposes, the new and transport promptly the other's traffic, and managers and new name present no obstacle to how the joint earnings shall be apportioned on judicial decree for performance of a contract. a mileage basis, cannot now be particularized by Equity deals with the substance, not the form, the Court, the primary stipulations of the conwhen it seeks to enforce its decrees. This was in tract are definite, and as to them has been entersubstance held in Bald Eagle Valley Railroad v. ed a decree that they shall be performed specificNittany Valley Railroad, 171 Pa. 284. Counsel ally; the purpose of defendants to stop the interare mistaken in assuming the decision in that case change of traffic under the contract has been was based solely on Tulk v. Moxhay, 2 Phil. arrested by this decree; the contract is now ob Jan. '96, 151. H. B. February 6, 1896. Northern Central Railway Company v. Harrisburg and Mechanicsburg Electric Railway Company and The Cumberland Valley Traction Company. ligatory upon all the parties, and is to be per- appeal is dismissed at costs of appellant accruing formed according to its manifest intent; when on their appeal since the same was taken. this is done in good faith, the daily operations of the respective roads, alone can determine the exact details necessary to effective obedience of the decree. In case of dispute as to the particular methods, either can call into operation the arbitration clause, or if this be unavailing, either can, on proper proof, secure from the Court below a supplementary decree, which in the light of the evidence that may then be adduced, will carry out fully the decree already made. While parties to such contract can agree definitely, that they will promote and facilitate the interchange of cars and business between their respective roads, and A street railway company organized under the Act of that the earnings from the joint business shall be May 14, 1889, P. L. 211, is authorized to construct and apportioned on a mileage basis, it would be prac-operate its railroad on established streets and highways tically impossible to enumerate in the agreement, only. Such a street railway has no right to cross a steam all the details by which it should be carried into where no public highway exists, and an attempt to make railroad, by means of an overhanging bridge, at a point effect; these would necessarily have to be post-such crossing should be prevented by injunction. poned until the daily operations of the road suggested what would best promote their convenience and that of the public. Street railways-Act of May 14, 1889, P. L. 211 Appeal of the Northern Central Railway Company, plaintiff, from the decree of the Common As to the appeal of the Gettysburg and Harris-Pleas of Cumberland County, dismissing a bill burg Railway Company, it is dismissed and the praying an injunction against the Harrisburg and decree affirmed. Mechanicsburg Electric Railway Company and For the reason given by the Court below, the the Cumberland Valley Traction Company. decree as against the Philadelphia and Reading The plaintiff's bill set forth that it was the owner Railroad Company, the Hunter's Run and Slate in fee of a certain strip of land in Lower Allen Belt Railroad Company, and the receivers of the township, Cumberland county. Philadelphia and Reading Railroad Company, is affirmed and their appeals dismissed. PLAINTIFFS' APPEAL. That the Harrisburg and Mechanicsburg Electric Railway Company was incorporated under the Act of 14 May, 1889, on the 17th day of May, 1892. October 6, 1896. DEAN, J. There is nothing That the route designated in its charter began of merit in these assignments of error which has in the city of Harrisburg, county of Dauphin, not been passed upon in the opinion this day and extended to the borough of Mechanicsburg, filed in appeal of defendants from same decree. Cumberland county, a distance of nine miles; In so far as the insufficiency of the decree is com- passing through the boroughs of Camp Hill and plained of, the appeal is premature. What con- Shiremanstown; for more than three-fourths of nections shall be arranged between the railroads, the distance upon township roads. and how they shall apportion joint earnings on That on the 31st day of October, 1893, two exa mileage basis, can only be properly determined tensions or branches were made, by resolution of when the decree of the Court below goes into the board of directors of said electric railway effect. The daily operations of the roads will company, which was duly recorded and filed as point out to both, what shall be to their mutual provided for in the aforesaid Act of 1889, as foladvantage, and circumstances, as they then exist, lows: will suggest what is an equitable apportionment First, from the river road in Wormleysburg at under the contract of the joint traffic receipts; a point on the route of said railway as originally if then, irreconcilable disputes arise, either party laid out, southwardly under the Cumberland Valcan call into operation the arbitration clause of ley Railroad bridge through private property, the contract, or, if this be ineffective, either can crossing the railway of the plaintiff on private ask, on proper proof, for a supplemental decree property to the village of Riverton; thence by from the Court below. public road to borough of New Cumberland. We will not now assume the parties will refuse Second, from the public road of Wormleysburg to carry out the contract according to its true in- northward over streets and roads, and through tent and meaning, when the Court below and this private property to a county bridge at West FairCourt have adjudged it binding upon them. The view. The first of said extensions passes through a the Court, under the authority of the Act of village and rural district about half a mile to an June 19, 1871. unincorporated village, and thence through a rural district about two miles to borough of New Cumberland. The second extension passes through an unincorporated village, through a rural district, a distance of about two miles northward to the unincorporated village of West Fairview. Railroad Co. v. Braddock Ry. Co., 152 Pa. 116. The Act of May 14, 1889, sec. 18, gave such right to cross. Citizens' Pass. Ry. Co. v. E. H. Pass. Ry., 164 Pa. 274. D. L. & W. R. R. Co. v. Ry. Co., 11 Pa. C. C. R. 165. That on the 9th day of October, 1895, the board October 5, 1896. STERRETT, C. J. It is un. of directors of the Harrisburg and Mechanics- necessary to consider all the questions presented burg Electric Railway Company, by a resolution by this record. Such of them as are worthy changed the route of the first extension above of notice have been referred to, at least briefly, referred to, running southward through Riverton by the learned president of the Common Pleas to the borough of New Cumberland by passing in his opinion, findings of fact and conclusions over private ground and under the Cumberland of law sent up with the record. The general and · Valley Railroad tracks on the line of an old controlling question, however, is, whether a comturnpike road; thence by private property to the pany chartered under the street railway Act of line laid out in the first extension aforesaid before May 14, 1889 (P. L. 211) has the right to con reaching the point of the proposed crossing of struct, maintain and operate its road across the the railway and land of the plaintiff; that it was lines of a steam railroad company, without the proposed to cross the right of way and the strip consent and against the protest of the latter, at a of land owned in fee by the complainants by an point where its roadway is not crossed by a puboverhead bridge to be constructed by it from lic highway? The answer to this question must, private property on the one side to private prop- of course, be sought for in the expressly granted erty on the other side, without the consent of the or necessarily implied powers and authority with complainant, and not upon the line of any pub- which the street railway company has been inlic road or within any incorporated borough. vested by the law under which it was created The bill prayed an injunction against the con- and subject to which it continues to exist. If struction of the overhead crossing. An answer the right referred to cannot be found therein, it was filed, and the case came on for hearing before necessarily follows that the question must be anE. W. Biddle, P. J., who after finding the swered in the negative. facts substantially as set out in the bill, made a decree refusing the injunction and dismissing the bill. Section 1, of the Act of 1889, provides: "That any number of persons, not less than five, may form a company for the purpose of constructing, maintaining and operating a street railway on any Edward B. Watts and John Hays, (with them street or highway upon which no track is laid, W. F. Sadler), for appellant. The plaintiff took this appeal. or authorized to be laid or to be extended under The Northern Central Railway Company has any existing charter, with the privilege of so not only the same right as a private person to be much of any street, used or authorized to be compensated for injury to the land held by it in used, under any existing charter, as hereinafter fee which the defendant proposes to cross, but provided, for public use in the conveyance of it also has such property or ownership in its right of way as cannot be appropriated to public use without its consent, unless provision be made for compensation for the damages suffered. Pa. Schuylkill Val. R. R. v. Reading Paper Mills, 149 Pa. 18. Ry. Co. v. Peet, 152 Id. 488. Id. Potts v. Quaker City Elevated R. R. Co., 161 A company organized under the Act of 1889 is not authorized to cross the tracks of steam railroads in the rural districts. passengers, by any power other than by locomotive; and for that purpose may make and sign articles of association, in which shall be stated .... the streets and highways upon which the said railway is to be laid and constructed," etc. Section 4, authorizing extensions and branches, declares that "the act of the company authorizing any extension or branch, shall distinctly name the streets and highways on which said extension or branch is to be laid or constructed." It also provides that "no extension or branch shall be constructed on any street or highway upon which a track is laid or authorized under any existing charter, except as thereinafter provided." Sec. 14 authorizes the use of such portion of A. G. Miller and J. W. Wetzel, for appellees. An electric railway can cross a steam railroad without its consent, under conditions imposed by the track of any other company, already laid down, as may be necessary to construct a circuit vested with any other authority, in that regard, upon its own road at the end thereof." The except such as may be necessarily implied. Withlength of track, to be thus used, "only with the out ignoring the well settled rules applicable to consent of the local authorities of the city, bor- the construction of charters, it is impossible to ough or township, in no exent shall exceed five reach any other conclusion than that the Legishundred feet of single track." It also prescribes lature, in this carefully drawn, and well guarded the mode in which compensation for such use Act, intended to withhold from companies charshall be made," etc. tered thereunder, everything in the nature of a The next section declares: "No street passen- roving commission under which they might asger railway shall be constructed by any com- sert the right to locate, construct and operate pany incorporated under this Act within the street railroads wherever they pleased. limits of any city, borough or township, without It was successfully contended in the Court bethe consent of the local authorities thereof, nor low that the authority, given in sec. 18 of the shall any street railway be incorporated hereun- Act, "to cross at grade, diagonally or transverseder, which shall not have a continuous route ly, any railroad operated by steam or otherfrom the beginning to the end, forming a com- wise," is general in its application and confers plete circuit with its own track, excepting the an unqualified right to cross a steam railroad anyfive hundred feet to be used under sec. 14." where without regard to whether there is an Sec. 17 authorizes the occupation and use of established street or highway crossing at the turnpikes, not exceeding sufficient width for two same point or not. This is a grave mistake. As tracks, and requires that compensation for such we have seen, location, construction and operause shall be first made, to the owner or owners tion of street railways are authorized only on esof such turnpike or turnpikes, in the mode pre- tablished streets and highways. Sec. 18 is eviscribed in sec. 14 aforesaid. dently predicated of that fact, and hence the auWith the exception of above mentioned re-thority therein granted is necessarily applicable stricted and qualified rights, to use a small section only to crossings at points where the railroad is of another company's track in forming a circuit, crossed by a street or highway. In other words, and to occupy and use longitudinal strips of it refers only to crossing at a point where the turnpikes, etc., street railway companies charter- street or highway, on which the street railway is ed under said Act are certainly not, in express located, crosses the steam railroad. To hold terms, invested with any other power or authority otherwise would not only be contrary to the in the nature of eminent domain. Indeed, the manifest intention of the Legislature, but it would specific grant of these qualified rights is strongly involve the constitutionality of the eighteenth secindicative of legislative intention to withhold from tion. such companies every other power of eminent do- As to the property on which the alleged tresmain. This conclusion is further fortified by the pass was threatened, the learned trial Judge provisions intended to restrict them to establish- found that, "at the place of crossing, plaintiff has ed streets and highways as the location of their a right of way sixty feet in width, and an admain lines, extensions and branches. As we have joining strip of land twenty feet wide which was seen, their right to construct, maintain and oper- acquired by deed; and in sustaining plaintiff's ate street railways is specifically limited to ex- eighteenth and nineteenth exceptions to his preisting streets and highways. The names of the vious rulings, he further found that said twenty streets and highways selected by them must be feet wide strip of land is owned by it in fee, and stated in each company's articles of association. that prior to filing the bill defendant company atIn the recorded action of the company, exercis- tempted to cross plaintiff's land and right of ing the branching power, etc., authorized by the way at the point in question, and that plaintiff Act, it must also "distinctly name the streets and had reason to apprehend that such attempt was highways on which said extension or branch is imminent, etc., but, in view of the facts, as he to be laid or constructed." In brief, in the selec-found them, he held as a matter of law that tion or adoption of the route, either of their main plaintiff's right of way and ownership in fee of line of any extension or branch thereof, they are said strip of land were immaterial; that the right expressly confined to established streets or other to cross plaintiff's railroad, etc., at an elevation avenues, in cities and boroughs, and to public of about twenty-two feet above the surface of its highways in townships, subject to such further tracks was conferred upon the Harrisburg and restrictions, even as to them, as are specified in Mechanicsburg Electric Railway Company, by the Act. Outside of and beyond the restricted sec. 18 of the Act, and then said: "The long narpower and authority, as to selection and adoption row piece of land referred to, which is held in fee of a route, etc.. thus granted, they are not in- is essentially part and parcel of the railroad, just as much so as the easement which it adjoins, burg Electric Railway Company, one of the deand the right to cross it is as clearly given as fendants, and, upon the facts shown by the pleadis the right to cross the easement." For reasons ings and proofs, it was entitled to the relief prayalready suggested we think he was clearly wrong ed for. in this. Aside from the ownership in fee of the The decree dismissing the bill is accordingly ELL in Railroad Co. v. Reading Paper Mills, 149 [See next case.] raise and maintain any appropriate superstructure Jan. '96, 150. H. B. February 6, 1896. Harrisburg and Mechanicsburg Electric Railway Co. Street railroads—Right of way—Crossing. railroad, at a point where there is no public highway, by A street railway company has no right to cross a steam passing under the said road. including necessary foundations, and to deal with Cumberland Valley Railroad Co. v. it, within the limits of railroad uses, as absolutely and as unconditionally as an owner in fee. There was no such easement at common law. . . . . It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But whatever it may be called, it is in substance an interest in the land special and exclusive in Appeal of the Cumberland Valley Railroad its nature and which may be the subject of special Company, plaintiff, from the decree of the Cominjury, ... and therefore within the rule which mon Pleas of Cumberland County, dismissing a governs the application of equitable relief." bill for an injunction, to restrain the Harrisburg and Mechanicsburg Electric Railway Company. There is also manifest error in the tenth finding of fact, viz: "So far as the evidence has dis- This case was argued with the foregoing one, closed, the building of defendant's railway and the the facts of which were very similar, except running of cars thereon will not injure or affect that in the present case the defendant sought the operation of plaintiff's railroad, or inflict upon to make a crossing by passing under the plainplaintiff any actual damage. There will be no tiff's road or right of way. A. G. Miller and J. W. Wetzel, for appellee. increase of danger from accident or other cause." D. W. Rowe, Edward B. Watts, John Hays and Aside from the unauthorized occupation of John G. Johnson, for appellant. plaintiff's property by spanning the same with an overhead bridge or viaduct, one hundred feet or more in length and about twenty-two feet above October 5, 1896. STERRETT, C. J. This case its tracks, at a point where there has never been was argued with the Northern Central Railway an overhead or grade crossing of any kind, it is Co., appellant, against same defendants, No. 151 of impossible to reach the conclusion that such a January term 1896, in which an opinion has just superstructure, with electric cars running thereon been filed. While the facts of the two cases, as to at frequent intervals, will not result in a greater the locus in quo, etc., are different, the questions or less increase of danger to plaintiff company, its involved are substantially the same in both. In patrons and employees. To what extent the dan- this case, the alleged intrusion consists in crossger, from accident or other cause, would be in- ing the plaintiff's land or right of way underneath creased, would of course depend very largely its tracks, and the superstructure on which they on the degree of care and skill exercised in the rest. In the other case, the attempted crossing construction and maintenance of the bridge and was by an overhead bridge, spanning the land in the operation of the street railway thereon, and right of way of the Northern Central Railway but that, under the most favorable circumstances, Company, plaintiff in that case. The general there would be an appreciable increase of danger, and controlling question, however, is practically no one can doubt. the same in both cases. For reasons given in It follows from what has been said that plain- the opinion referred to, we think the learned tiff had standing to resist the threatened invasion Judge of the Common Pleas erred in not grantof its rights by the Harrisburg and Mechanics- ing the perpetual injunction specially prayed for, |