
    APPEAL OF THE PHILADELPHIA, GERMANTOWN & NORRISTOWN RAILROAD COMPANY.
    A railroad company, chartered under the general railroad law, has the right to occupy the streets of a borough longitudinally with its track.
    Another railroad company, owning a lot on such street, which is not in actual use, has no greater privileges of exemption from seizure than a private individual.
    Appeal from the Common Pleas of Montgomery County ; In Equity; No. 6 July Term, 1884.
    This was a • proceeding in equity brought by appellant to restrain'the Pennsylvania Schuylkill Yalley Eailroad Company from laying its track upon Lafayette street is the Borough of Norristown ; the appellant claiming that it owned the land to the centre of • the street, by virtue of owning lots fronting on said street, and that in such case the Pennsylvania Schuylkill Yalley Eailroad Company could not occupy its property. The Court refused to grant a preliminary injunction in the following opinion per:
    Boyer, P. J.
    I. The plaintiffs have filed their bill in equity praying:
    
      First. — That the Court will issue an injunction preliminary until hearing and perpetual thereafter, enjoining and restraining the defendants from entering upon Lafayette street in the Borough of Norristown, between Franklin and Mill streets, for the purpose of constructing any railroad tracks thereupon; and from laying and constructing upon any part of Lafayette street .aforesaid between said streets, any railroad track or tracks whatsoever.
    
      Second. — That (in the alternative) the defendants be enjoined .and restrained as aforesaid until the said Pennsylvania Schuylkill. Yalley Eailroad Company shall have made compensation to the plaintiffs for the damage done or likely to be done to them by reason of the construction of said railroad upon said street, •or shall have tendered ample security therefor.
    The defendant corporation is a company formed by the consolidation of three companies chartered under the general railroad laws of this Commonwealth; viz.: “The Philadelphia, Norristown and Phoenixville Railroad CompanyThe Phoenixville, Pottstown and Reading Railroad Company;” and “The West Chester and Phoeuixville Railroad Company.” It is under the rights and privileges granted to “The Philadelphia, Norristown and Phoenixville Railroad Company” that the defendants have located and have proceeded to construct their railroad upon Lafayette street, in the Borough of Norristown.
    The Philadelphia, Norristown and Phoenixville Railroad Company were authorized by their charter to construct a railroad from a convenient point of connection with the main line of the Pennsylvania Railroad Company between Girard Avenue station in the City of Philadelphia, and Radnor station in the County of Delaware, to the Borough of Phoenixville in the County of Chester, going from the terminus first named ■ to the valley of the Schuylkill river,' thence by way of said valley to the last-named terminus.
    October 17th, 1882, the town council of the Borough of Nor- ■ ristown passed an ordinance granting to the Philadelphia, Norristown and Phoenixville Railroad Company the right of way through Lafayette street, as the most eligible and convenient route through Norristown, but confining the railroad company to the occupation of but twenty feet in the centre of said street, which is fifty feet wide, so that, by the reduction of the width of the pavements to six feet (which was a part of the ordinance) there will be left a wagonway of nine feet on each side, to be paved with Belgian blocks at the expense of the railroad company ; and the ordinance is accompanied by other conditions for the preservation of the street, its gutters and crossings.
    This ordinance with its conditions was accepted by the railroad company November 1st, 1882; and subject to which they have commenced the construction of their road upon Lafayette street.
    The ordinance passed by the town council of the Borough of Norristown will be considered in this opinion as an advisory measure only; proper and suitable to indicate the most acceptable route through the borough, and guarding by its restrictions and .conditions against any unnecessary injury to the street as a highway, or to the property abutting thereupon. The right of eminent domain, and the powers which flow from it, must be conceded to exist in the Commonwealth alone.
    If we are to find the lawful authority for the defendant company to construct and maintain a railroad upon Lafayette street, we must seek it in the grants which the Commonwealth has Itself either expressly or impliedly made.
    The first step in this inquiry, is to search the statute book, and learn what the legislature has declared in the several acts which compose the general law of the State under which the defendant corporation has been organized.
    The act of February 19th, 1849, section 10, P. Laws 83, says : “And provided further, that whenever any company shall locate its road in and upon any street or alley in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley for any damages they may sustain by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act.”
    Before the passage of this act it had been held that no damages could be recovered for any injury to property abutting upon a street so lawfully occupied where land itself or part of it was not taken. And even this act still left the owner of such property remediless for any injury caused by such occupation when there was no change of grade.
    The same act (section 12) provides for the construction of the ¡road at the crossing of other roads so as not to impede travel, but is silent as. to what precaution shall be taken not to impede travel where the railroad is located upon a street as contemplated in the tenth section.
    The same act (section 13) recognizes the right of any railroad company to occupy a turnpike or other public road longitudinally ; but provides that if necessary to change the site of the same it “shall reconstruct the same on the most favorable location, and in as .perfect a manner as the original road.”
    This command to reconstruct .was, however, never supposed to apply to streets in populace towns, where such authority to locate streets would be absurd and impracticable. That it is not so applicable was conceded in the case of The Pittsburg, Virginia and Charlestown Railroad Company vs. Commonwealth, 12 W. N. C. 280, and also in the brief submitted by the plaintiffs in this-case.
    In the act of April 4th, 1868, P. Laws 62; which is supplementary to the act of 1849, it was deemed necessary to provide that the act should not be construed so as to authorize the formation of street passenger railway companies to construct railways under or by virtue of its provisions in any city or borough of this Commonwealth.” And the same section contains the further saving clause, “ That it shall not authorize any corporation formed under this act to enter upon and occupy any street, lane, or alley in any incorporated city in this Commonwealth without the consent of such, city having first been obtained.
    From this saving clause it will be observed boroughs are-omitted. If then but for this exception, railroads could have-been laid upon the streets of cities without their consent, as seems-to have been conceded by the legislature, then boroughs must still be open to such invasion.
    The act of 1849, section 10 declares that “The president and directors of such companies shall have power and authority” * * to survey, ascertain, locate, fix, mark, and determine-such route for a railroad as they may deem expedient, not however, passing through any burying ground or place of worship, or any dwelling-house in the occupancy of the owner or owners thereof without his, her, or their consent.” How easy and obvious it would have been to insert also a restriction as to the public streets of a town if a general restriction as to them had been intended. The omission is significant.
    The inference from these several sections of the general railroad law seems irresistable that no such prohibition was designed, and that to occupy such streets is an implied power under the general law.
    The construction of railroads iras been encouraged by the-public policy of our State, for reasons which the development of the country by their means abundantly justifies. They are most useful when brought nearest to the centres of business. To lay the tracks upon one of the streets of a populace town through which it may-pass on its route may iu most cases be regarded a commercial necessity, if the convenience of the general public and the interests of traffic are to be subserved. To go around the town rather than through it, thus avoided approach to its manufactories and marts of trade, would often be at the sacrifice of both the town and the railroad.
    ■By laying the railroad tracks on one of the streets the road can be brought to where it is most wanted, and the uses of a local and comparatively insignificant highway may be thus made subservient to uses more enlarged and far-reaching in their beneficial results. And generally, too, with the least practicable injury to private property.
    In further support of the conclusion reached, it is important also to consider the prohibition in the act as to passing through any burying ground or place of worship, or any dwelliny-house in the occupancy of the owner without his consent. How can a railroad corporation locate its road through the built-up part of a borough except through some street, without encountering the buildings through which it is prohibited from passing? It is no answer to say it may buy its way; for the occupying owner of every dwelling is armed by the same act with an absolute veto.
    But it does not follow that the implied powes of a railroad company to locate its road upon a street can be exercised at the absolute discretion of the company under any and all circumstances. The deferí dant corporation, although authorized to locate and construct its road between the termini designated in its charter by such route “it may deem expedient,” it will nevertheless be confined to a reasonable exercise of its chartered powers so as to avoid unnecessary or unreasonable injury to other public highways; and for any plain abuse of its powers in this regard it may be restrained by injunction. Within these limitations, the opinion of this Court is that a railroad company chartered under the general railroad laws of chis Co mmonwealth has the implied right to pass through a borough lying upon its lawful route, by locating its tracks longitudinally upon one of the public streets of such borough.
    
      It is said that the Supreme Court of this State has never so decided in any case which turned directly upon this point. But it must be conceded that the Supreme Court has in several cases clearly foreshadowed, and even directly declared, such an interpretation’of the act in question.
    In Struthers vs. The Dunkirk, Warren and Pittsburg Railway Company, 6 Norris 282, the Supreme Court announced the same construction of the law which is here applied. The case turned upon the question as to the implied authority of the defendant corporation under the general act of 1849 (which had been made part of its charter) to occupy with its tracks a public street in the Borough of Warren. The terminus to be reached was “any given point in the town of Warren,” but there was no express grant to the company to occupy any street in that town for that purpose. The company constructed its road along High street, one of the public streets .of said borough. On the trial the plaintiff offered to prove that no necessity or good reason existed for building defendants’ road along that street; that a route shorter in distance and of easier curvature was attainable at but a small increase of expense, and by which the defendants’ road could have reached its terminus, and made its connection without occupying any portion of High steeet, or any other street longitudinally, and working much less injury to both public and private interests. The Court rejected this testimony, and directed the jury to find a verdict for the defendant.
    The Supreme Court affirmed this ruling ; and declared without a dissenting opinion, that “the location was made in the exercise of an undoubted right.”
    
    It is contended that this is inconsistent with the decision of the Supreme Court in The Pennsylvania Railroad Appeal, 8 W. N. C., 313. But this is not so, I think, if the circumstances of the latter case are considered. In that case it was only decided (and by a divided Court) that the necessity for the act complained of was not great enough to justify one railroad in removing the previously located and constructed tracks of another, for no reason more urgent than its own convenience. Besides, íd the latter case, the decision was not made upon a construction of the general railroad act of 1849, but of an act of March 12th, 1873, P. Laws 253, conferring certain special powers upon the Pennsylvania Railroad Company for the special purpose set forth in that act.
    In Cake vs. The Philadelphia and Erie Railroad Company, 6 Norris 307, it was conceded that by the act of 14th April, 1864 (P. L. 414), extending to that corporation the provisions of the general act of 19th February, 1849, it acquired the right to lay its tracks upon streets in towns, although the case itself turned upon other points.
    In the ease of the Commonwealth vs. The Erie and North East Railroad Company, 3 Casey 339, although the decision was against the railroad company, because of the express limitations of its charter, Chief Justice Black says: “So also when an act of incorporation directs a road to be made between certain termini, by such route as the grantees of the privileges shall think best, it may be located on an intervening street or other common highway, if in the judgment of the directors it be necessary or expedient to do so.”
    
    In Cleveland and Pittsburg Railroad Company vs. Speer, 6 P. F. S. 333, the company was by its charter authorized to construct a railroad “on the most direct and least expensive route to some point in the direction of Pittsburg on the State-line between Ohio and Pennsylvania.” The company was further authorized by act of assembly.to extend its road from the State line, and continue it up the valley of the Ohio river. .As the Borough of Manchester laid across the valley it was necessary to pass through it; but, although not a word in the charter gave any express grant to occupy a street, it was held that the company had the implied right to do so, even although the street selected might not be the most direct or inexpensive location.
    
    In this case the defendant corporation is authorized to locate and construct its road from its Philadelphia terminus to Phoenix-ville by way of the valley of the Schuylkill river upon such route as they may deem expedient.” The adjacent Boroughs of Norristown and Bridgeport lie across the whole valley like the Borough of Manchester in the case last quoted.' It is necessary to pass through the one or the other of these boroughs. The route selected as the m.ost expedient lies through Norristown along Lafayette street, to the occupation of which the authorities representing the local community have invited the defendants, as the most eligible and convenient route not only for the railroad company itself, but also for the general public.
    The defendant corporation has therefore a lawful right to construct its tracks upon Lafayette street, observing however, the conditions which it accepted with the ordinance passed by the town council of the Borough of Norristown.
    II. > We now approach the second branch of this case, in which the plaintiffs interpose their corporate rights as the owners and the occupiers of a large lot of ground extending along Lafayette street to part of which they claim title, extending to the middle of the street. This they say is one of their franchises, and cannot be invaded by the defendant corporation; that, therefore, whatever rights the defendants may have to lay their road upon Lafayette street, as against the other property owners whose lots abut upon that street, they have no such rights along that side of the street upon which the property of the plaintiffs fronts.
    The land of the plaintiffs for which this immunity is claimed is for the most part an open and unoccupied lot composed of different adjacent tracks purchased at different times from various owners, and held unimproved for many years. It fronts upon public streets on all its sides, and is traversed by one of them, laid out but not yet opened through it. As situated at present it is surrounded by open streets on its four sides, Lafayette street being one of them. Upon one end of the Lafayette street front the plaintiffs have an engine-house, with a blank wall on that street, the entrance to it being from the yard within. There is no claim on the part of the plaintiffs to any exclusive right or easement in Lafayette street, or that it was not a public street long before they acquired any property fronting upon it. But the reversionary title to part of the street in case of its vacation they claim to own, and complain that the improvements which some day they intend to ereetupontheirpremises will be cramped and made less accessible by reason of the partial occupation of the street by the defendant corporations tracks.
    The mere statement of these facts, with an inspection of the draft of the property of the plaintiffs, and its surroundings, ought to be a sufficient answer to this objection. The franchise which the plaintiffs claim to be-invaded is hardly deserving of the name. There is no interference with the corporate functions of the plaintiffs as a railroad corporation; no encroachment upon any grant to them by the Commonwealth for the purpose of their road ; no taking of any property in their actual possession.
    But even the taking of railroad property by another corporation is often justified in law. Railroad companies are invested with vast and arbitrary powers, not, however, for their own sakes merely, but for the public good they are supposed to sub-serve, and which is the only justification for the grant of their extensive privileges. For the same reason they in their turn are-sometimes called upon to surrender something for the general good.
    There is much learning in the books upon this subject, and many adjudicated cases. I do not think, however, that on this, occasion any elaborated discussion of these authorities is required. The general principles established are :
    1. That there is no implied contract by the State in a charter to a turnpike, bridge, or railroad company, that their property shall be exempt from the common liability of the property of individuals tó be taken for public use.
    2. That a franchise belonging to a corporation is only entitled to the same protection as other property; and must be surrendered up for the public use like any other property upon compensation, when demanded by the sovereign authority.
    3. That the grant of land for one public use must yield to that of another more urgent.
    4. That the second grant need not be an express grant; but may arise by implication from necessity.
    •See Springfield vs. Connecticut River Railway, 4 Cushing 71; Richmond Railway vs. Louisiana Railway, 13 Howard 71 ; "White River Turnpike Co. vs. Vermont Central R. R. Co. 21 Vermont., 590, S. O. First American R. Cases, 281; The Boston Water-power Co. vs. The Boston & WorcesterR. R. Corporation, 16 Pickering, 512, S. C. 1 Am. R. C., 267 ; 23 Pickering, 360, S. C. 1 Am. R. C., 298 ; Enfield Toll Bridge Co. vs. The Hartford & New Haven R. R. Co., 17 Connecticut, 40, S. C. 2 Am. R. C., 69; 2 Am. R. C., 95; Lake Shore & Michigan Southern R. Co. vs. Chicago and Western Ind. R. Co., 97 Ill. Rep., 506, reported in Am. & English Railroad Cases, vol. 2, part 2, page 440; Central Bridge Corporation vs. City of Lowell, 4 Gray 474; 1 Redfield on the Law of Railways, 257, &c., and cases there cited.
    See Pennsylvania cases ; In re Towanda Bridge Co., 10 Norris, 216; Comth. vs. Penn’a Canal, 16 P. F. S. 41; Snyder vs. The Pennsylvania R. R. Co. 5 P. F. S., 340.
    The last case above cited decides that the owner of land extending to the middle of a public street has no land which within the meaning of the law is taken when railroad tracks are laid upon it.
    The plaintiffs have cited the decision of this Court by my lamented predecessor Judge Ross in Lewis vs. The Ger., Norristown & Phoenixville R. R. Co., 39 Leg. Int. 23. I have no fault to find with the decision in that case. The conclusion reached was doubtless sound, even if some of the general propositions laid down are stated in language too strong perhaps for universal application.
    But here, as we have seen, there is no land or franchise of the plaintiffs actually taken from them; and therefore it seems useless to discuss the decree of necessity which would justify such a taking.
    Were it required, however, it would not be difficult to show a physical necessity for the construction of the railroad of defendant upon Lafayette street.
    Between the river’s edge and Washington street are woolen and cot'ton factories, foundries, flouring mill, rolling mills, iron furnaces. It is not the mission of a railroad to destroy these, but rather to build them up. When we come to Washington street we find it occupied by the tracks of the plaintiff’s railroad. Between Washington and Lafayette streets the space is occupied by the passenger and freight depots, turntables and engine houses of the plaintiffs ; also by a large church property, and dwelling-houses. Passing beyond Lafayette street we come to a still more populous part of the town lying between Lafayette street and Egypt street, which is the main business street of the borough. Between these streets are still more numerous dwelling-houses, industrial establishments, and a burying ground. On the opposite side of Egypt or Main street the grade rises rapidly until it soon becomes impracticable, except by means of deep cuts. And in the intermediate space are numerous dwellings occupied by their owners, and more churches. If we come back to Lafayette street we find a grade through the built-up portion of the street already for the most part well adapted to the purpose, and requiring but slight changes; and a locality where the uses ■ of the railroad can be best turned to account.
    III. There has been a question raised . as to the damages which may be claimed by the plaintiffs from the construction of the road of defendants on Lafayette street; the defendants maintaining that the injuries of the plaintiffs, if any be suffered, can only be of a consequential nature, and that the plaintiffs having never accepted the provisions of the new Constitution, under which alone such damages can be claimed, are not within its protection.
    But the Court cannot now make this discrimination against the plaintiffs, who in' their bill pray the Court to restrain the defendants until they have paid or secured to the plaintiffs’ compensation for the injuries they have sustained, or are likely to sustain. All corporations or individuals are equally within the protection of the Constitution if they choose to accept its terms.
    And now, July 9th, 1888, the prayer for a preliminary injunction enjoining and restraining the defendants from laying and constructing their railroad tracks on any part of Layayette street between Eranklin and Mill streets is refused. But the said defendants are restrained and enjoined from proceeding with their said work until they shall have tendered the said plaintiffs adequate security, to secure said plaintiffs for any damages sustained or likely to be sustained by them from the construction of said railroad by the defendants upon Layayette street between Eranklin and Mill streets in the Borough of Norris-town.
    
      The case was next referred to a master who inter alia reported .■as follows:
    The master finds the facts as follows:
    The Philadelphia and Reading Railroad Company, by a certain contract made November 10th, 1870, leased from the Philadelphia, Germantown and Norristown Railroad Company its railroad, a branch of which runs from Philadelphia to the Borough of Norristown, both of these companies having been ■duly incorporated under the laws of this Commonwealth. These plaintiffs own two entire squares of ground in the Borough of Norristown, bounded by Washingtown, Mill, Lafayette and Franklin streets. A portion of this property was deeded to the Philadelphia, G-ermantown and Norristown .Railroad Company in the year 1852 and a portion to the Philadelphia and Reading in 1872. The plaintiffs’ title to all that portion of the lot between Franldin street and a point about one hundred feet west of the western line of Walnut street, extends to the centre line of Lafayette street. This portion is represented upon the draft annexed' as lots Nos. 6, 7, 8, 9 and 10.) Upon the northeast corner of Mill and Washington streets is located the plaintiffs passenger and freight depot, occupying a portion of lots Nos. 2, 3, 4, and 5 (see plan H. C. B., No. 1), The engine-house is built upon the south-west corner of Mill and Lafayette streets, occupying a portion of lot No. 2.
    The balance of lots Nos. 2, 3, and 4, and a portion of No. 5, to a point a short distance west of Mill Creek, is occupied by a turntable, coal banks, scales, sidings, and other necessary railroad appliances (see plan Ií. C. B., No. 1). From the same point a ¡short distance West of Saw Mill run, and extending eastward to Franklin street, the plaintiffs’ property (being part of lot No. 5, and lots No. 6, 7, 8, 9, and 10. See plan H. C. B., No. 1) is in the nature of sunken commons, parts of it being some eight or ten feet below the level of Lafayette street; and doqs not now .appear to be used for any purpose whatever.
    Walnut street, a fifty feet wide street, has never been opened ¡south of Lafayette street, but if opened as laid out through to the line of Washington street would divide the plaintiffs’ property into parts at a distance of about four hundred and sixty feet westward from the west side of Franklin street, occupying portions of lots Nos. 6 and 7 in plan.
    The total consideration paid by .the two companies for this property was $34,975. The Philadelphia, Germantown and Norristown Railroad Company purchasing the portion west' of the creek, in 1852, for $8800. The balance being bought by the Philadelphia and Reading Railroad Company, in 1872, for $26,175. Washington,'Mill, Lafayette and Franklin streets are all open to public use, Washington street, however, being partly occupied by the plaintiffs’ tracks.
    Under the provisions of an Act of Assembly, passed April 4th, 1868, entitled “An act to authorize’ the formation and regulation of railroad corporations,” and its supplements, a corporation called the Philadelphia, Norristown and Phoenixville . Railroad Company was organized for the purpose of constructing a rail-' road from a convenient point of connection with the main line of the Pennsylvania Railroad Company, between Girard Avenue ■ station, in the City of Philadelphia, and Radnor station, Delaware County, to the Borough of Phoenixville, Chester County, going from the terminus first named to the valley of the Schuylkill river; thence by way of said valley of said river to the last-named terminus.
    This railroad was located through the Borough of Norristown upon Lafayette street, bounding the north-easterly front of the plaintiffs’ lots. On October 17th, 1882, the town council of the Borough of Norristown passed the following. ordinance, granting the right of way through Lafayette street in the Borough of Norristown, to the Philadelphia, Norristown and Phoenixville Railroad Company:
    “Whereas, The construction of the proposed new railroad through the Borough of Norristown, is likely to be a great benefit to the business interests of said borough; therefore, in order to encourage and facilitate the speedy construction of the saíne over the most eligible and convenient route.
    
      “Be it ordained and enacted by the town council of the Borough of Norristown in town couucil assembled, and it is hereby ordained and enacted by the authority of the same:
    “Sec. 1. That the right of way of twenty feet in width through the Borough of Norristown, along and upon Lafayette street from the eastern end thereof to or west of Barbadoes street, which shall be located along the centre of the street, and also the right to cross the streets in said borough is hereby granted to the Philadelphia, Norristown and Phoenixville Railroad Company, its successors and assigns, for the purpose of constructing and operating a railroad thereupon.
    “Sec. 2. That the curb lines of Lafayette street along the line of said proposed railroad, be and they are hereby established and fixed at a distance of nineteen (19) feet from the centre line thereof; and where said street has been already curbed, the said railroad company shall at their own expense reset the curbing on the new line hereby established, and shall repave the sidewalks wherever disturbed by the company.
    “Sec. 3. That the said railroad company shall conform as nearly as the construction of a proper railroad will allow to the present street level, from Ford to Barbadoes street, and for that distí n ;e shall pave the wagonways between the railroad and sidewalks with cubical stone blocks, such as are in use on Broad street in the City of Philadelphia ; except in front of the Roman Catholic Church property, at which latter place the entire railroad and wagonways shall be planked over by said railroad company level with the tops of the rails of said company’s railroad, similar to the planking at Ninth near Green street in the City of Philadelphia, which planking shall be kept by said company in good order and repair.
    “Sec. 4-. That said wagonways, on the curb sides and at the crossings, shall be provided with suitable and sufficient gutters by said company.
    “Sec. 5. That the said company shall provide and keep flagmen at the street crossings wherever necessary.
    “Sec. 6. Nothing in this ordinance shall be in any way taken or construed as an assumption by the burgess and town council of the Borough of Norristown of liability for clamvges, if any, to be suffered by the owners of property abutting on said Lafayette street, by the location of and construction of said railroad thereon, nor shall this ordinance affect any remedy which property owners may have against the said company for any injury they may sustain by its acts, and said corbpany shall save said borough harmless from any liability, if any there be, that may be incurred in the change of curb lines herein authorized.
    “Sec. 7. This ordinance to take effect upon the acceptance of its terms by the board of directors of the said railroad company.”
    As will be seen, by this ordinance, a right of way twenty feet wide is granted along the centre of the street, which is fifty feet wide; the sidewalks upon each side being twelve feet, the cart-way between the curb lines being twenty-six feet. The ordinance, however, provides that the width of the street between the curb lines shall be increased to thirty-eight feet, and each of the sidewalks narrowed to six feet. This will leave a cartway of nine feet on each side of the defendant’s, railroad, to be paved with Belgian blocks at their expense.
    On November 1st, 1882, the ordinance was duly accepted by the defendant railroad company, and, subject to its conditions, they began the construction of their railroad upon Lafayette street. On June 1st, 1883, the Philadelphia, Norristown and Phoenixville Eailroad Company, under the provisions of the act of March 24th, 1865, entitled “An act supplementary to an act regulating railroad companies, approved February 19 th, 1849,” was consolidated with two other railroad companies called respectively, “The Phoenixville, Pottstown and Eeading Eailroad Company,” and “The West Chester and Phoenixville Eailroad Company,” also organized under the act of April 4th, 1868; the first named for the purpose of building a railroad from Phoenixville to Eeading, and the latter a line of railroad from West Chester to Phoenixville, and a new corporation was thereby created by the name of “The Pennsylvania Schuylkill Valley Eailroad Company,” the defendants aforesaid, with the rights, powers and liabilities lawfully, resulting from such consolidation.
    Upon the eighth day of June, 1883, the contractor for that portion of the road, John T. Dyer, the other defendant, began the construction of the defendants’ railroad upon Lafayette street.
    A single track was hastily laid, occupying the southermost part of the twenty feet right of way granted by the ordinance.
    IJpon June 9th, 1883, the plaintiffs applied for an injunction, preliminary, restraining the defendants from constructing their railroad upon any part of Lafayette street, or, in the alternative from entering upon Lafayette street, between Franklin and Mill streets, for that purpose' until compensation should be made for the damage done, or likely to be done, or ample security should be tendered therefor to the plaintiffs.
    After hearing and argument of counsel the Court made the following decree:
    “And now, July 8th, 1883, the prayer for a preliminary injunction enjoining and restraining the defendants from laying and constructing their railroad tracks on any part of Lafayette street, between Franklin and Mill streets, is refused. But the said defendants are restrained and enjoined from proceeding with their said work until they shall have tendered the said plaintiffs a sufficient bond with adequate security to secure said plaintiffs from any damages sustained, or likely to be sustained by them from the construction of said railroad by the defendants upon Lafayette street, between Franklin and Mill streets in the Borough of Norristown.”
    On July 14th, 1883, the plaintiffs amended (without prejudice to their rights) their original bill filed by striking out paragraph XI., which stated that the defendants had made no compensation unto the plaintiffs for the damage done or likely tobe done, by reason of said construction of their railroad, nor had tendered security therefor, and also withdrawing their second prayer for an injunction in the alternative, and for security.
    
      The defendant’s railroad, as now constructed upon Lafayette street, between Mill and Franklin streets, consists of a single track, occupying the southermost portion of the twenty feet wide right of way granted by the ordinance. Heavy planking is laid on either side of the rails even with their top surfaces all along the line of their road between said streets. The distance from the building line to the present curb line, not as yet set back, upon the south side is twelve feet. The distance from this curb line to the southern rail is 475 feet (see plan marked “H. C. B., No. 3”), part of which is occupied by the planking on that side of the rail, which is about one and a half feet wide. The rest of the distance to the curb line is paved with Belgian blocks. The space between the rails is occupied partly by the planking laid down on the inside of the respective rail, and even with their top surfaces, and partly by the cinder filled in between the planking as shown in the plan marked “H. C. B. No. 3.”
    On the northern side of the northern rail, planking one and a half feet wide is again laid, and from the.planking to the present curb line the street is paved with Belgian blocks. The total distance from this rail to the present northern curb line, not as yet moved back, is sixteen feet. The present distance from the curb line to the building line being twelve feet.
    At present but slight disadvantage is occasioned by the presence of the railroad track, which can easily be crossed, and free communication had to the plaintiffs’ property anywhere along the line of the road between JFranklin and Mill streets. But as the defendants have not relinquished the right to lay two tracks upon the twenty feet wide right of way granted by the ordinance, and 'as the ordinance only obliges them to plank Lafayette street at the street crossings, should the present planking wear out, or be removed, and not replaced, or should another track be laid without planking, access to the plaintiffs’ property in question from the northern side of Lafayette- street, between Franklin and Mill streets, except at the street crossings, could be had only by crossing ordinary “T” rails laid upon •cross ties. This would be impracticable for horses and wagons.
    Access, however, can be had from north of Lafayette street between said streets, by crossing the defendants’ track at the planked street crossings and using the nine feet wide cartway. This cartway, when the defendants’ road is in operation, will be too dangerous from its proximity to moving trains, and too narrow for general use.
    But access can be had as heretofore to the plaintiffs’ property upon crossing defendants’ track by way of Franklin street, between Lafayette and Washington streets on the eastern end, by way of Mill street, between Lafayette and Washington streets-on the western end, and by the opening of Walnut street through the plaintiffs’ property to their land on either side of that extended street.
    The master has been requested by the plaintiffs’ counsel to find as a fact, that it is contemplated by them to erect a freight depot upon the land in question, which depot is to be in all one hundred and fifty feet long and fifty feet wide, at a distance of about one hundred feet east of Mill street, facing Lafayette, and so much within the line of Lafayette street as to permit teams, ■to back up and stand without obstructing that street. The unloading and receiving tracks to run along the southern front of the projected depot.
    And also to find as a fact that other portions of the property in question are to be used for a coal dump ; access to which would be from Lafayette street.
    The master refuses, from the evidence before him, to find these as facts. He finds as a fact, however, that the property in question was acquired by the plaintiffs for the purpose of extending their railway facilities when the same might be required and that such an intention is manifested by the purchase of the laud convenient and suitable for such purposes.
    But no intention of a specific appropriation of the land in question has been shown, either by evidence of the actual beginning of work upon the proposed structures, or evidence of any orders from the proper officials of the road to their subordinates therefor.
    The master, after due deliberation, has adopted the views expressed in the elaborate opinion of the Court upon its refusal to grant the preliminary injunction in this case, and which opinion lie desires to be considered as incorporated with this report.
    The master suggests that a final decree be made by the Court refusing the prayer of the plaintiffs’ bill and dismissing the ■same; and that the plaintiffs be ordered to pay the costs.
    Upon exceptions to the master’s report, the Court confirmed ■.said report and made the following decree : •
    And now, April 2, 1884, this cause came on to be heard on the report of the master, and was argued by counsel, whereupon upon due consideration it is ordered, adjudged and decreed that that the plaintiff’s bill be dismissed, with costs to be paid by the plaintiff:'.
    The complainant then appealed to the Supreme Court, complaining of the action of the Court below in holding that the Pennsylvania Schuylkill Valley Railroad Company could occupy Lafayette street with its tracks.
    
      Mesers. T. Hart, Jr. and James Boyd, Esqs., for appellant
    argued that the appellee had no right to occupy the streets of a borough longitudinally; and cited Act April 4, 1868, P.. Laws 62; Act Feby. 19, 1849, P. Laws 79; Railroad Co. vs. Newark, 2 Stockton 352; Attorney General vs. Railroad Co., 19 N. J. Eq. 386; Savannah Railroad Co., 33 Georgia 609; Ensworth vs. Commonwealth, 52 Pa. 320; Commonwealth vs. Erie & N. E. Railroad, 27 Pa. 339; Phillips vs. Railroad, 78 Pa. 177; Pittsburgh Railway vs. Commonwealth, 12 W. N. C. 280; Penna. Railroad Co.’s Appeal, 8 W. N. C. 313; Springfield vs. Railroad, 4 Cush. 63; Commonwealth vs. Railroad, 14 Gray 93; Railroad vs. Railroad, 124 Mass. 368; Lake Shore & M. S. Railway vs. New York, Chicago & St. Louis Railway, 8 Fed. Rep. 858; Eastern Railroad Co. vs. B. & M. Railroad Co., 111 Mass. 125; Housatonic Railroad Co. vs. L. & H. Railroad Co., 118 Mass. 391; B. & M. Railroad Co. vs. L. & L. Railroad Co., 124 Mass. 368; B. & A. Railroad Co., 53 N. Y. 574; Boston H. T. & W. Railway Co., 79 N. Y. 64; N. J. S. Railroad Co. vs. Long Branch Commissioners, 39 N. J. Law 28; Milwaukee & St. Paul Railroad Co. vs. Farbault, 23 Minn. 167; Barber vs. Andover, 8 N. H. 398; Arming-ton vs. Township, 15 Vermont 745; State vs. Montclair Railway Co., 35 N. J. Law 328; Drogheda Railway Co. vs. N. & K. Railway Co., 5 Irish Eq. N. S. 393; Philadelphia and Trenton Railroad Co., 6 Wharton 25; Mercer vs. Railroad Co., 36 Pa. 99; Mayor vs. Penna. Railroad Co., 48 Pa. 355; D., H. & W. Railroad Co. vs. Commonwealth, 73 Pa. 29; Railroad Co. vs. Speer, 56 Pa. 325; Phillips vs. Railroad Co., 78 Pa. 177; Struthers vs. Dunkirk W. & P. Railroad Co., 87 Pa. 282; Cake vs. Phila. & E. Railroad Co., 87 Pa. 307; Penna. Railroad Co.’s Appeal, 8 W. N. C. 313; Getz’s Appeal, 10 W. N. C. 453; Lewis vs. G. N. & P. Railroad Co., 39 Leg. Int. 23.
    
      C. H. Stinson, H. K. Weand and Wayne Mac Veagh, Esqs , contra,
    
    argued that the appellee had the right to occupy Lafayette street and that appellants was not entitled to any greater privileges than any other property holder; and cited Snyder vs. Penna. Railroad Co., 55 Pa. 340 ; Struthers vs. Dunkirk, Warren & Pittsburgh Railway Co., 87 Pa. 282; Cake vs. Phila. & E. Railroad Co., 87 Pa. 307; Commonwealth vs. Erie & N. E. Railroad Co., 27 Pa. 339; Cleveland & Pittsburgh Railroad Co. vs. Speer, 56 Pa. 325.
   The Supreme Court affirmed the decree of the Common Pleas, on May 11th, 1885, in the following opinion:

Per Curiam.

The sole contention is as to the right of the appellee to construct its road on Lafayette street in the Borough of Norristown. The appellants own lots fronting on the street. They have no-greater right than any private person owning a lot fronting thereon has to prevent the construction of the railroad. No-question as to the measure of damages, or giving- security for the payment thereof arises. They are out of the question. The municipal authorities have given their permission to lay the-track on the street. It is in the line of the corporate franchise of the appellee. Under these facts, the right to so lay it, is too well sustained by the authorities to be successfully questioned.

Decree affirmed and appeal dismissed at the costs of appellants.  