4. DISCRIMINATION IN RATES-DAMAGES-PLEADING. In a common-law action for damages by a coal-mine operator against a railroad company for unlawful discrimination in the service of coal cars, a complainant can not be permitted to amend his petition or statement of claim in an action for the recovery of the penalties prescribed by this act, where the application to amend was made more than six years after the alleged discrimination and when the proposed amendment averred a new cause of action that was barred by the statute of limitations. Mitchell Coal & Coke Co. v. Pennsylvania Ry. Co., 241 Pa. St. 536, p. 540. This act does not prohibit all discrimination, but only discrimination which is undue or unreasonable, and the prohibited discrimination is further limited by the consideration that it must be "for a like service from the same place, upon like conditions, and under similar circumstances." Hoover v. Pennsylvania R. R., 156 Pa. St. 220, p. 229. 5. DAMAGES AWARDED BY COMMERCE COMMISSION NO BAR TO RECOVERY. An award of damages to a company by the Interstate Commerce Commission does not prevent a recovery of damages in a State court, where it is not shown that any proceedings were taken by the commission to enforce the award or that it had been paid. A judgment of a court of competent jurisdiction is a bar to further proceedings on the claim in any tribunal, but an award by the Interstate Commerce Commission is not a judgment in the sense that concludes the enforcement of the claim on which it rests in a court having jurisdiction of the cause of action. The act of Congress makes such an award prima facie evidence of the facts contained therein in an action brought on it in a State or Federal court, but is open to attack and may be wholly discredited, and therefore the mere award by the Interstate Commerce Commission can not be a defense to an action for damages. Clark Bros. Coal Min. Co. v. Pennsylvania Ry. Co., 241 Pa. St. 515, p. 535. Mitchell Coal & Coke Co. v. Pennsylvania Ry. Co., 241 Pa. St. 536, p. 538. 6. JURISDICTION OF STATE COURTS-EFFECT OF ORDER OF COMMERCE COMMISSION. The jurisdiction of a State court in an action brought under this act to recover treble damages for an unlawful discrimination in the distribution of coal cars is now ousted by an order of the Interstate Commerce Commission forbidding the practice complained of and against the discriminatory acts of the defendant railroad company, where it appears that practically all the coal involved in the suit in the State court was sold f, o. b. cars at the mines, and therefore not subject to interstate commerce regulations. The action is not based on the violation of a Federal statute or any rule or regulation of the Interstate Commerce Commission, but on a tort committed against the complainant in violation of the statutory duty of the defendant as a common carrier. Under such circumstances the orders or regulations of the Interstate Commerce Commission can not deprive the State court of jurisdiction. Clark Bros. Coal Min. Co. v. Pennsylvania Ry. Co., 241 Pa. St. 515, p. 532. Puritan Coal Min. Co. v. Pennsylvania Ry. Co., 237 Pa. St. 420. 7. CARS OWNED BY OPERATOR-USE BY CARRIER-EFFECT ON DISCRIMINATION. The mere assertion by a railroad company of its right to exclude from its tracks cars which a coal company proposed to buy entailed no loss or injury. Until the coal company was in actual possession of the cars it proposed to offer for service it was open to the railroad company to rescind any tentative promise made by it as to hauling cars furnished by the coal company, as it was equally open to the coal company to abandon its project of purchasing its own cars. An action for damages under such circumstances rests on a hypothetical basis as the injury complained of was never actually realized through any discrimination by the railroad company. If loss actually resulted to the coal company it was because of its own failure to put itself in a position where it would have a right to demand equal facilities. Walnut Coal Co. v. Pennsylvania Ry. Co., 237 Pa. St. 410, p. 418. An action against a railroad company for damages for an unlawful discrimination in the distribution of coal cars was tried on the sole issue of the liability of the company for an unjust and unlawful discrimination in the distribution of its own cars. The fact that the coal company itself owned private cars for shipping coal did not enter into the case and was not considered by the court. On exceptions and appeal the railroad company can not for the first time claim that the court erred in not taking into consideration the privately owned cars of the coal company in determining the extent of the discrimination against the coal company. Puritan Coal Min. Co. v. Pennsylvania R. Co., 237 Pa. St. 420, p. 458. 8. DISTRIBUTION OF CARS-COAL TERRITORIES-UNEQUAL DISTRIBUTION. A railroad company to facilitate the distribution of coal cars among coalmine operators divided the coal territory, tributary to its line, into several distinct regions or districts. All the mines on the company's lines were given certain ratings based upon their shipping capacity and the distribution of coal cars in times of shortage was made generally in accordance with these ratings. An unjust and unequal distribution of coal cars to one of such districts would be an offense at common law as well as a violation of the Federal statute and of this State statute and would render the railroad company liable to an operator in another district who was injured because of the unequal distribution of cars. Puritan Coal Min. Co. v. Pennsylvania R. Co., 237 Pa. St. 420, p. 442. AN ACT forbidding those officers, employees, or agents of any railroad company operting within this Commonwealth, who have charge, directly or indirectly, of the distribution of cars to shippers thereon, to own or have any interest, directly or indirectly, in any operated coal property, or in the stock of any mining or manufacturing company, along the line of such railroad; making the violation hereof a misdemeanor, and providing a punishment for the same. SEC. 1. Be it enacted, etc.: That from and after January 1, 1908, it shall be unlawful for any officer, employee, or agent of any railroad company operating within this Commonwealth, who has charge, directly or indirectly, of the distribution of cars to shippers thereon, to have any interest, directly or indirectly, in any operated coal property or in the stock of any mining or manufacturing company along the line of such railroad. SEC. 2. Any violation of the provisions of this act shall constitute a misdemeanor and any person, upon conviction thereof, shall be sentenced to pay a fine of not less than two hundred and fifty, nor more than one thousand dollars, and to undergo an imprisonment of not less than three months nor more than one year, or both, at the discretion of the court. SEC. 3. All acts or parts of acts inconsistent herewith be and the same are hereby repealed. AN ACT relating to actions brought to ascertain or recover damages for appropriation of rights of way or easements in lands by corporations invested with the right of eminent domain, and empowering and authorizing owners of lands and corporations, municipai or otherwise, desiring to exercise the right of eminent domain in such lands, to waive the assessment of damages by viewers, and granting the right to either party to demand and have the jury engaged in trying such action visit and view said land and premises. SEC. 1. Be it enacted, etc. : That in any and every action brought to ascertain or recover damages caused to any owner of lands by reason of the appropriation of a right of way or easement in the lands of such owner by any municipal or other corporation invested with and having the right of eminent domain as now authorized by the laws of Pennsylvania, where such owner of lands and such municipal or other corporation can not agree upon the amount of damage done or properly payable to said owner for the appropriation of a right of way or easement in said lands, the parties may, by agreement with each other, waive the right to have such damages assessed as is now required by law, and such owner may thereupon file his statement and claim in the court of common pleas of the proper county and rule the defendant to plead thereto within fifteen days from notice of such rule, duly served upon said corporation, and the said suit shall be proceeded with the same as if an award of viewers had been filed and an appeal had been taken therefrom. SEC. 2. Either party to such action as is referred to in section one of this act shall have the right during the trial of such action, on motion to the judge presiding at such trial, to demand and have the jury which may be selected to try said cause visit and view the premises over or through which the right of way or easement mentioned in section one of this act may extend, before rendering a verdict in such case. ANNOTATION. APPLICATION OF ACT-PIPE LINE-DAMAGES-APPEAL. This act does not apply to the trial of appeals from the reports of viewers assessing damages for land occupied for and by a pipe line company under the right of eminent domain, and the pipe line company can not require a view by the jury. Frazee v. Manufacturers Light & Heat Co., 20 Pa. Supr. Ct. Rep. 420, p. 422. STREAMS. OBSTRUCTION BY DAMS, ETC., PROHIBITED. See Pollution of waters, p. 852. LAWS 1907, P. 299. MAY 28, 1907. AN ACT to provide that no dam, wall, wing wall, wharf, pier, embankment, abutment, projection, or other obstruction, nor any addition thereto, shall be constructed, erected, or built in or along any public or navigable river, or stream heretofore declared a public highway, within this Commonwealth; nor shall the course, current, or cross section thereof be changed or diminished, without the approval of the water supply commission of Pennsylvania; and to require maps, plans, profiles, specifications, informations, and data relating thereto to be submitted to said commission. SEC. 1. Be it enacted, etc.: That from and after the passage of this act no person or persons, corporation, county, city, borough, or township shall construct, erect, or build in or along any public or navigable river, or stream heretofore declared a public highway, within this Commonwealth, any dam, wall, wing wall, wharf, pier, embankment, abutment, projection, or other obstruction of such river or stream, nor make any addition to any existing dam, wall, wing wall, wharf, pier, embankment, abutment, projection, or other obstruction of any such river or stream, nor in any manner change or diminish the course, current, or cross section of any such river or stream, unless and until the said person or persons, corporation, county, city, borough, or township shall have submitted to the water supply commission of Pennsylvania complete maps, plans, profiles, and specifications of, and such other information and data as the said water supply commission of Pennsylvania may deem necessary relating to, the proposed dam, wall, wing-wall, wharf, pier, embankment, abutment, projection, or other obstruction, or addition thereto, and a majority of the members of the said water supply commission of Pennsylvania shall have approved the same: Provided, however, That the provisions of this act shall not prohibit the making of necessary temporary repairs to existing dams, walls, wing-walls, wharves, piers, abutments, or projections. SEC. 2. That all acts or parts of acts inconsistent herewith be and the same are hereby repealed. 880 |