
    Beidler’s Appeal.
    A railroad company has no authority, under the right of eminent domain, to take and occupy the unopened portion of a street, without first making or securing compensation to the owners of the land on which the street is located, as required by article xvi, \ 8, of the constitution.
    
    The facts that the street has been located on the city plan with the view of being fully opened in the future, and that councils have given their assent by ordinance, and that the railroad company had given bond to indemnify the city against ali damages to property holders abutting on said street, will not dispense with this constitutional requirement.
    A railroad company will be restrained by injunction from taking and occupying the premises in such case.
    
      Not decided whether the railroad company had authority to construct a siding in this case.
    March 7, 1889.
    Appeal, No. 18, Jau. T. 1889, from a decree of O. P. Berks Oo., dissolving a preliminary injunction granted on a bill in equity by Frederick P. Beidler et al. against Peter Barbey & Son, and the Philadelphia & Reading R. R. Oo. and the receivers thereof. Green and Clark, JJ.,’absent.
    The bill averred, in substance, as follows: 1. The plaintiffs are the owners of real estate, situated in the city of Reading, on the east and west side of Gordon street, between Hockley and West Buttonwood streets and West Buttonwood street and the Lebanon Yalley Railroad. 2. Peter Barbey & Sons are brewers, conducting and carrying on the brewing and malt business at the northwest corner of Hockley and Tulpehocken streets, in said city, and their buildings are located from 250 to 300 feet from the Pennsylvania Schuylkill Yalley Railroad and West Reading Railroad, which latter is connected with the Philadelphia & Reading Railroad. 3. On July 25, 188Y, the select and common councils of Reading passed an ordinance granting to the Philadelphia & Reading Railroad Co. the privilege of laying a railroad track from the Lebanon Yalley Railroad to a point on Gordon street at Hockley street, with a turnout or siding on the west side of Gordon street, provided that the company should execute a bond to the city in the sum of $10,000 conditioned to indemnify the city of and from any and all damages that may accrue to the property owners abutting on said street. 4. The street upon which the railroad is proposed to be laid is a forty-foot street, and the construction of a railroad thereon will leave only-seven and a half feet on either side for driving purposes. 5. The city of Reading has no power to grant to the railroad or to Barbey & Son the privilege of building a railroad on Gordon street, as the public has no interest therein. 6. The railroad company has never made application to build the proposed road on Gordon street, and the ordinance was not passed at the instance of the railroad company, but it was done at the instance and through the solicitation of Barbey & Son for their exclusive benefit. 7. The ordinance is a part of a scheme of the firm of Peter Barbey & Son, brewers, to-obtain a railroad from the Lebanon Yalley Railroad through Gordon1 street to their brewery, the development of which scheme was com-menced on June 13, 1887, by tlse passage of an ordinance by councils of the city of Reading, at the instance and solicitation of thej said firm of Peter Barbey & Son. A comparison of the ordinances1 shows that they are precisely the same, with the exception of the named grantees of the privilege; that the real grantees are Peter Barbey & Son. who have agreed to indemnify and save harmless the Philadelphia & Reading Railroad Company from all damages by reason of the construction of the said railroad. 8. The Act of April 11, 1861, § oo, P. L. 606, requiring railroads to submit plans and surveys, etc., to the city councils, in Reading, has not been complied with. 9. The city of Reading has no power to grant authority to Peter Barbey & Son, or to the Philadelphia & Reading Railroad Co., to lay down a track for a steam railroad on Gordon street, for the sole and exclusive irse of Peter Barbey & Son. 10. The road now proposed to be built in the name of the Philadelphia & Reading Railroad Co. is simply an attempt by Peter Barbey & Son to evade the decree of the court, made on the 21st day of June, A. D. 1887, wherein said Barbey & Son were restrained from proceeding to build said road. 11. The Philadelphia & Reading Railroad do not propose to construct said railroad on Gordon street at their own expense or that of the receivers, but it is proposed to be constructed at the expense of Peter Barbey & Son, and shall be owned exclusively by them, and the public shall have no interest in said railroad and no right to use and enjoy the same. 12. The plaintiffs are the owners of property, as alleged in the first paragraph of this bill, on both sides of Gordon street, where the defendants propose to build said railroad; their respective properties will be greatly injured and rendered of much less value by the construction of said railroad on said Gordon street, by reason of less convenient access to the same, and the noise, dirt, dust, smoke and danger necessarily incident to the operation of said railroad, and that their damages so to be suffered, if said railroad is constructed, will amount to many thousands of dollars; yet, although such damages are patent and inevitable, they have not been paid or secured, as required by the constitution of Pennsylvania. 13. The Receivers of the Philadelphia & Reading Railroad Co. have no power or authority from the Circuit Court of the United States to build said railroad and to obligate themselves for the payment of damages; the said company is largely insolvent, and damages by reason of the construction of said road cannot be collected from said company. 14. Gordon street, between Hockley street and the Lebanon Yalley Railroad, is laid out through the land of the plaintiffs, and the land of the plaintiffs not devoted to the street lies on the eastern side of said Gordon street; Gordon street has been opened toward the north only as far as West Buttonwood street, and between West Buttonwood street and the Lebanon Yalley Railroad it has not been opened, although it has been laid out through the land of some of the plaintiffs ; the proposed railroad, if constructed, will be built on the land owned in fee by the plaintiffs, both where Gordon street has been opened south of West Buttonwood street and where it has not yet been opened north of said West Buttonwood street.
    The bill prayed, 1, that the defendants be restrained from laying down a railroad track on Gordon street, in the city of Reading; and, 2, general relief. .
    The bill was supported by affidavits of plaintiffs and collateral .affidavits. The court granted a preliminary injunction.
    The answer admitted the main allegations of the bill, but. .averred that the siding was to be built and operated by the railroad company. It denied that plaintiff’s premises would be injured, and .alleged that damages were secured by the bond given to the city. Rurther facts appear by the opinion of the supreme court.
    The court dissolved the preliminary injunction in the following ■opinion by Hagenman, P. J.:
    
    
      “ The question presented, as the record stands, is whether the Philadelphia & Reading Railroad Co. has the right to locate its siding on Gordon street.
    
      f‘ It cannot be disputed that a railroad company may use the' public streets or highways in the construction of their road where it is authorized by its charter expressly or inferentially so to do.
    “ Getz’s Appeal, 10 W. N. C. 453, decides the question before the court. The right of the Philadelphia & Reading Railroad Co. to occupy the streets of the city of Reading is expressly given, so far as the main track is concerned. Judge Green in his opinion in the Getz case says, after citing a number of authorities : ‘ It cannot be doubted that the right to build a siding is included as a necessary incident in the right to build a railroad. Side tracks are essential to the purposes and uses of a railroad. Without them, the railroad would in a great measure be useless.’ It is unnecessary to ■add anything more.”
    
      The assignments of error specified the action of the court, 1, in not granting an injunction as prayed for by the bill; and, 2, in dissolving the preliminary injunction.
    
      H. Willis Bland, with him Benj. F. Dettra, for appellants.
    The corporate action of the select and common councils of the city of Reading, granting to a railroad company the privilege to lay ■down a branch railroad track on a street not opened and adjudged a public highway, is unwarranted in law and illegal.
    The railroad company have no authority-in law, expressed or implied, to occupy any portion of Gordon street with a branch railroad, under all the facts and circumstances in this case. Quigley v. Pa. S. V. R. R., 121 Pa. 35; Henderson v. Chislett, 23 Pitts. L. J. 5; Justice v. Nesquehoning Valley R. R., 87 Pa. 28; Com. v. Pitts. & Connellsville R. R., 24 Pa. 159; Stewart’s Ap., 56 Pa. 422; Phila. & Trenton R. R., 6 Wh. 25; Com. v. Erie R. R., 27 Pa. 339; Pa. R. R. Co.’s Ap., 93 Pa. 150.
    In Getz’s Ap., 10 W. N. C. 453, the right to occupy the street was not involved. In Mayor, etc., of Pittsburg v. Pa. R. R., 48 Pa. 359, and Black v. P. & R. R. R., 58 Pa. 249, there was an absolute public necessity .to take the street.
    An injunction will be granted to restrain the construction of a railroad on a public street of a city unless authorized by law. Eckert v. Federal St. R. R., 27 Pitts. L. J. 202; Com. v. Pitts. & Connellsville R. R., 24 Pa. 159; Att’y Gen. v. Lombard & South St. R. R., 10 Phila. 354.
    
      Jeff. Snyder, with him Geo. F. Baer, for appellees.
    It is conceded that a railroad company may use a public street when authorized to do so by its charter expressly or inferentially, or by any general legislation. Com. v. Erie & N. E. R. R., 27 Pa. 354; Cleveland & Pitts. R. R. v. Speer, 56 Pa. 325; Mayor, etc., of Pittsburgh v. Pa. R. R., 48 Pa. 359; Black v. P. & R. R. R., 58 Pa. 249.
    In the recent case of Pa. R. R. Co.’s Ap., 115 Pa. 514, it was decided that the Pennsylvania R. R. Co., as lessees, did not have power to lay a track on a street; hut it was so decided because the charter of the road leased did not give the required authority, and because the branching powers of the Pa. Railroad Co. do not extend to the lines it holds by lease. The authority of Mayor, etc., of Pittsburgh v. Pa. R. R. Co., 48 Pa. 355, is recognized.
    The Phila. & Reading R. R. Co. has express legislative authority. Acts of April 12, 1864, P. L. 396, and April 13, 1846, P. L. 319, 322.
    Getz’s Ap., 10 W. N. C. 453, rules this case.
    March 25, 1889.
   Sterrett, J.,

In view of the facts properly averred in the bill and supported by injunction affidavits, the court below was clearly right in awarding the preliminary injunction, and there appears to be nothing on the record to justify the decree dissolving the same.

The bill substantially charges the appellees with attempting to appropriate private property of appellants for railroad purposes contrary to the provisions of section 8 of article xvi of the constitution; and the charge is not denied either by answer or affidavit. In the 14th paragraph of the bill it is averred: “ That Gordon Street, between Hockley Street and the Lebanon Yalley Railroad is laid out through the land of the plaintiffs, . . . ; that Gordon Street has been opened toward the north as far as West Buttonwood Street, and between West Buttonwood Street and the Lebanon Yalley Railroad it has not been opened, although it has been laid out through the land of some of the plaintiffs ; that the proposed railroad, if constructed, will be built on the land owned in fee by the Ílaintiffs, both where Gordon Street has been opened south of West. luttonwood Street and where it has not yet been opened north of said West Buttonwood Street.” The answer to this, filed July 14, 1888, is as follows: “We neither admit nor deny the allegations made in the 14th paragraph of the plaintiff’s bill, and leave them to make such proof thereof as they shall see fit.” In connection with their answer, the appellees filed the affidavit of R. B. Cable setting forth that, as superintendent of the Philadelphia and Reading Railroad Company, he has had charge of constructing the proposed siding; that the same has been constructed, on land owned by the railroad company, from the said Lebanon Yalley Branch along the western line of Gordon Street to a point about one hundred and ten feet north of Buttonwood Street; that the company proposes to extend the same southward on Gordon Street, in accordance with the provisions of the ordinance passed by the select and common councils of the city of Reading approved August 3d, 1887; that the railroad company has, in all respects, complied with the provisions of said ordinance, by filing bond in the sum of $10,000, and accepting the provisions of said ordinance, and that the railroad company proposes, to construct, operate, control and own said siding as part of its property.

There is nothing in the answer of defendants below, or in anything that appears in the record that amounts to a denial of the .equity on which the plaintiffs’ bill is grounded. Conceding, for the sake of argument, that, under the ruling of this court in Getz’s Appeal, 10 W. N. C. 453, the company has a right, with the consent of city councils, to locate and construct a siding on the route adopted, it does not follow that, in doing so, it may appropriate private property without first making just compensation therefor as required by the constitution. The assent of councils, giving bond to protect the city, etc., are all well enough, as far as they go, but they do not dispense with the constitutional requirement. The fact that Gordon Street has been located on the city plan, with the view of being fully opened in the future, gives the railroad company no power to take and occupy the unopened portion of the street, without first making a compensation to the owners of the land on which the street is located. Quigley v. Pa. Schuylkill Valley Railroad Co., 121 Pa. 35.

It is unnecessary, at this stage of the case, to notice other matters suggested by the record. Enough has been said to show that it was at least the duty of the court to stay the hand of the defendants below from proceeding, in disregard of the rights of the plaintiffs, until the mandate of the constitution is fully complied with.

The decree of the court of common pleas dissolving the preliminary injunction is reversed and set aside, and the injunction is hereby reinstated. It is ordered that the costs be paid by the appellees.  