
    PHILADELPHIA AND ERIE R. R. CO. AND PENNA. R. R. CO., Lessees, vs. CATAWISSA R. R. CO. AND ATLANTIC AND GREAT WESTERN R. R., Lessee.
    The Court may mate a mandatory order relative to grade crossings of rail-Toads on a preliminary hearing.
    The Act of June 19th, 1871, is constitutional.
    Appeal from the decree of preliminary injunction at Nisi Prius. No. 228 October and November Term, 1871. August 5th, 1871, Bill filed at Nisi Prius by Philadelphia and Erie R. R. Co. vs. Catawissa R. R. Co. to restrain defendants crossing plaintiffs railroad. Injunction issued restraining defendants from crossing plaintiff’s railroad, except two construction trains once each way a day at 7 A. M. and 7 P. M., under the Act of June 19th, 1871, P. Laws, 1361. Sept. 29th, 1871. Catawissa R. R. Co. appealed. On November 26th, 1870, the Cata-wissa Railroad Co. filed bills in Northumberland and Lycoming Counties to restrain the Philadelphia and Erie R. R. from delaying, obstructing or preventing the Catawissa R. R. from locating the same crossings. An injunction against the Philadelphia and Erie was awarded March 19th, 1871, which was affirmed on appeal on May 7th, 1871. The Catawissa then proceeded in the construction of their railroad, and between June 19th, 1871, and Aug. 5th, 1871, expended $182,000 in construction o± the railroad.
    
      F. B. Gowen, Esq., for Appellants argued.
    First. The Act of June 19th, 1871. P. Laws, 1461, is unconstitutional and opposed to Article XI, Sec. 8. Amendment of 1864. Commonwealth vs. Green, 8 Sm. 234; Blood vs. Mercelliot, 3 Sm. 391; 22 Barb. 634; 4 Georgia 26; Potter Dwarris’ Statutes 103; People vs. McCuen, 3 Parker’s Crim. 299; Mayor vs. Colgate, 12 N. Y. 146; People vs. Hills, 35 N. Y. 452; People vs. O’Brien, 38 N. Y. 195.
    Second. The Act is not retrospective, and as the crossings were located in July, 1870, it does not apply. Neff’s Appeal, 9 H. 243; Fisher vs. Farley, 11 H. 501; Dewart vs. Purdy, 5 Casey 113; Lambertson vs. Hogan, 2 Barr 22; Lefevre vs. Witmer, 10 Barr 505; Palmer vs. Conly, 4 Denio 374; Jarvis vs. Jarvis, 3 Ed. Ch. 462; Trist vs. Cabenas, 18 Ab. Prac. 148; Litch vs. Brotherson, 25 Howard Prac. 416; Wood vs. Oakley, 11 Paige 403; Dash. vs. VanKleck, 7 John’s 499, Johnson vs. Burrell, 2 Hill 238.
    Third. Appellees were estopped by laches and delay in bringing their bill. Hilliard Injunctions, Sec. 43; Grey vs. Ohio, 1 Grant C. 412; Tush vs. Adams, 10 Cushing 253; Binney’s Case, 2 Bland Ch. 99; Hilliard Inj. 254, Sec. 60.
    Fourth. The Court at Nisi Prius had no jurisdiction. Conover vs. Mayor, 5 Ab. Pr. 393; Adams Eq. 402; 2 Dan. Ch. Prac. 1649. 1652.
    
      T. Cuyler, Esq., for Appellees argued.
    First. This bill is founded on the Act of June 19th, 1871, which gave greater power to the Courts to decide the right of grade crossings.
    Second. Parties desiring to take advantage of a previous decisión of the same matter, must plead it. It cannot be taken on motion. 1 Dan. Ch. Prac. Ch. XV, Sec. 2, p. 634; Murray vs. Shadwell, 17 Vesey 353; Story’s Eq., Sec. 736; Beames on Pleas 134; Pickford vs. Hunter, 5 Simons 122; Law vs. Rigby, 4 Bro. Ch. 60; Neve vs. Weston, 3 Atkins 557.
    Third. The Act is constitutional. Commonwealth vs. Green, 8 Sm 226; Church Street, 4 Sm. 353; Blood vs. Mercelliot, 3 Sm. 391; 2 Minn. 230; 15 Grattan 1; Gifford vs. N. J. R., 2 Stockton 171; Chilles vs. Drake, 2 Metcalfe (Ky.) 146, 165, 219; 19 N. Y. 116.
    Fourth. Appellants had no right to construct their road to Milton. Act March 21, 1831, P. Laws 159, Sec. 11; Act April 1, 1836, P. Laws 466; Act February 23, 1853, P. Laws 101: Act March 23, 1866, P. Laws 312; Act April 8, 1869, P. Laws 747.
    Fifth. There was no laches. The Act was a public one, and appellant was bound to take notice thereof.
   The opinion of the Court was delivered at Pittsburgh, November 9th, 1871, by

Thompson, C. J.

It is a rule of very general application in this Court that Mandatory matter is not to be part or portion of a decree for preliminary injunction. The object of such injunction is usually to preserve the statu quo of the parties until final hearing, but the Act of 19th of June, 1871, P. Laws 1361, entitled “An Act relating to legal proceedings by or against corporations,” seems to require a different practice. For the present, at least, we must regard that Act as valid and binding, and it requires that “in all proceedings in Courts of Law or Equity of this Commonwealth, when they relate to crossings of railroads it shall be their duty to ascertain and define by their decree the mode of such crossing which will inflict the least practicable injury upon the rights of the Company owning the road which is intended to be crossed.

And if in the judgment of such Courts it is reasonably practicable to avoid a grade crossing they shall by their process prevent a crossing at grade.”

We cannot practically put in use the Act in this ease, supposing for the present that its provisions extend to the Catawissa road, which we do not definitely settle, without doing as did our brother Sharswood at Nisi Prius prescribe the manner of its use-at the crossings of the Philadelphia and Erie Railroad. This explanation seems necessary in order to preclude, what might be thought a divergence by this Court from its ordinary rule.

Decree.

And now, to wit: Nov. 9th, 1871, in view of the circumstance that the appellants have finished their road, and it is now in running order for the carriage of freight and passengers, as well as construction materials, we have on consideration of the facts and arguments of counsel considered it expedient to modify the decree at Nisi Prius as follows, namely :

That the defendants, the Catawissa Railroad Company shall be permitted to cross the complainants road at the several crossings now put in, or constructed with all their trains of cars, on agreeing to maintain a watchman at each of said crossings, at all time s, when the trains on their road are passing, and that each, and every train shall come to a full stop before crossing the complainants road, and then pass over at a rate of speed not exceeding four miles an hour.

' This order to supply the conditions of crossing prescribed in the decree in this case entered at Nisi Prius, Aug. 10th, 1871, and no more; and to remain until further order. And so much of said decree as relates to the reference to engineers, to remain unaffected by this modification.  