
    APPEAL OF THE PHILADELPHIA AND READING RAILROAD COMPANY.
    Where one railroad crosses another above grade, the act of June 19, 1871, requires the crossing to be so made as to avoid injury to the road being crossed, if it can be done at a reasonable cost.
    Iron columns were allowed to be placed upon the right of way, intended for tracks of one railroad company, in order to support the bridge of another company crossing overhead, where the erection of the bridge without the columns, would have cost ¡j!7ñ,000 more.
    An attachment for breach of an injunction will not be granted, except upon proof of an actual violation thereof.
    Where the conduct complained of, is literally a violation of the injunction, -though not in spirit, an attachment will not be granted.
    The Court refused to order the removal of a trestle, used as a temporary substitute for an iron bridge, from ground of complainant, not in actual use.
    Appeal from the Common Pleas of Montgomery County. No. 5 July Term, 1884. Ip equity.
    The opinion of the Court below upon the application of the Philadelphia and Reading R. R. Co. for a preliminary injunctiou against the Philadelphia, Norristown and Phoenixville E. E, Co. was as follows per:
    Boyer, P. J.
    The-plaintiffs in their bill pray that an injunction preliminary until hearing, and perpetual thereafter, be issued, restraining the defendants from entering upon any part of a certain property of the plaintiffs at West Manayunk, Montgomery County, alongside of their railroad tracks, within the distance of 100 feet southwest of the centre line of their said railroad tracks for the purpose of erecting any railroad works thereupon, and from placing, erecting and constructing upon said property or any part thereof, any bridge, abutment, pier or other railroad structure whatever.
    The answer of defendants avers “that the defendant company propose to cross the plaintiff’s road above grade, which is a necessity in order to construct their road, as the said crossing isba the line of their adopted route, but that the same will be done without injury or interference to the plaintiff’s present road and tracks, and will' not injure said plaintiff, if it intends to utilize the land on the southern side of its present tracks, leaving sufficient room for it to lay down five additional tracks at the point of crossing. It is proposed to span the space to be occupied by four trades of the said plaintiff’s railroad with an iron bridge giving a clear headroom of not less than 19 feet above the rail of that road; said bridge to rest on the river side on a stone pier located on the defendant’s property, and at the other end on two iron columns and a plate girder. The columns are to be placed, one between parallel tracks Nos. 4 and 5, and the other between parallel tracks Nos. 6 and 7, which tracks are to be laid .9 feet apart to allow sufficient space for the columns. The small pier supporting one end of the plate girder, is to be so located as to enable the said plaintiff to excavate to the full width of its right of way at surface, leaving a slope of one half foot horizontal for each foot of vertical height. From the columns there will be an iron bridge, extending to a stone abutment, so located as to secure to the said plaintiff the same wi^th'of roadway. The said plaintiff has in-use at the present time two tracks, Nos. 1 and 2. Additional running tracks, Nos. 3 and 4, together with the side tracks, Nos. 5, 6 and 7, may be constructed in the future, at the option of the said plaintiff, and this istlie maximum number of tracks which can be laid on the land now owned by the said plaintiff, with the slope at the extreme outside limits of its property of one half foot horizontal to one foot vertical.” The act of June 19, 1871, section 1, enacts, that “In all proceedings in Courts of Law or Equity of this Commonwealth, in which'it Is alleged that the private rights of individuals or the rights or franchises of other corporations are injured or invaded by any corporation claiming to have a right or franchise to do the act from which such injury results, it shall be the duty of the Court in which such proceedings are had, to examine, inquire and ascertain, whether such corporation does in fact possess the right ■or franchise to do the act from which such alleged injury to private rights, or to the rights and franchises of other corporations results; and if such rights or franchises have not been conferred upon such corporation such Courts, if exercising equitable power’, shall by injunction, at suit of private parties or other corporations, restrain such injurious acts, and if the proceeding be at law for damages, it shall be lawful therein to recover damages as in other cases.” ' ■ ' .'
    The second section of the same act provides as follows : •“ When sw-h legal proceedings relate to crossings of lines of railroads by other railroads, it shall be the duty of Courts of Equity of this •Commonwealth 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 Court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a ■crossing at grade.”
    This act was a modification of the act authorizing companies under the 10th section of the act of April 4, 1868, to cross at •grade a track or tracks of any other railroad in this Commonwealth. Both these acts authorize distinctly the crossing of the tracks of one railroad by another. The act of 1868 authorized such crossing at grade without any qualification except that the •expenses shall be borne, and certain precautions observed, by the crossing company. But the act of 1871 enjoins that a crossing at grade shall be avoided where reasonably practicable.” Of this the Court is to judge as well as to “ascertain and define by their decree the mode of such crossing which will inflict the least practicable injuiry upon the rights of the company owning the road ‘ which is intended to be crossed.”
    
    In the case under investigation there is no purpose to cross at grade, and the plaintiffs will be spared that annoyance. The only question before the Court, therefore, is whether the mode of crossing proposed by the defendant corporation will inflict the least practicable injury upon the rights of the plaintiffs who own the road which is intended to be crossed.
    The question here to be considered is what the Legislature meant by the phrase, “the least practicable injury.” Does it mean that such a mode of crossing should be adopted as to prevent any occupation of any part of the property owned by the railroad company whose road is crossed if in the power of the crossing company to' avoid it by the expenditure of any necessary amount of money no matter how enormous ? Or does it mean that the interests of the crossing company and its relations to the public are also to be considered and encouraged within reasonable limits; and that comparatively slight injury need not be avoided by an unreasonable expenditure out of all proportion to the damage done ? Doubtless the rights of the railroad first constructed are to be primarily regarded and protected. Nothing must be-done by mere implication which would prevent the full discharge of its functions to the public, or deprive it of any' property •essential to the same, unless under the pressure of unavoidable necessity. But I cannot assent to the doctrine maintained by counsel for plaintiffs on the argument that not a foot of the outlying lands of the plaintiffs can be occupied by the crossing company even although to avoid it would require the expenditure of millions. Railroad property is not quite so sacred as that but may be taken upon proper occasions, for public uses, like the property of individuals.
    It must be remembered that the crossing road is also being-constructed as a highway for the benefit of the public; is armed by the Commonwealth with the right of eminent domain and 'expressly invested with the right to cress other railroads even at grade when necessary, which latter proceeding must always interfere with the franchises of the company whose road'is crossed. Fi'om this annoyance, however, the plaintiffs are relie, 1; as it is proposed to cross at an elevation of 19 feet above their rails.
    The crossing of one railroad by another is not to be likened'to the construction of a railroad upon a part of the roadbed or easement of another longitudinally, and in use at the time, as was the case in “Lewis vs. the C-ermantown, Norristown and Phoenix-ville Railroad Company,” decided by this Court and reported in 39 Leg. Int. 23, cited by the counsel for the plaintiffs. The crossing is a necessary franchise of the defendants, encouraged and authorized by the Commonwealth in the public interest. The rights and interests of the defendants are therefore also to be considered, and cared for ; although secondary to those of the plaintiffs.
    Pittsburg and Connellsville Railroad Co. vs. the Southwest Penna. R. R. Co., 27 P. F. S. 173.
    The defendants have submitted a plan of their proposed structure accompanied by the draft described in their answer^ which seems reasonably fair, and approaches to conformity with the principles referred to. But in the judgment of the.Court they might without incurring excessive expense avoid the necessity of occupying as much of the land of the plaintiffs with their abutment, described in their plan. The space of land belonging to the plaintiffs proposed to be occupied by the defendants is 21 feet in width. This the defendants say is no more than what will be occupied by the natural slope of the ground when graded. But the plaintiffs answer that to get more space they may some day erect a retaining wall, and get rid of the slope altogether.
    The retaining wall according to the affidavit of W. II. Bines, the acting chief engineer of plaintiffs, would require a base of 10J feet, leaving of the 21 feet in that case, a gain of 10 J feet for additional track room. The same result can be accomplished by the defendants moving back their proposed abutment ten and one-half feet. There being, in that case, outside of the face oh the wall of their abutment all the space which the plain tills could gain by their retaining wall, and. in that event the defendants would occupy no land at that point which could be utilized by the plaintiffs. This, in the opinion of the Court, ought to be done and the small pier should in conformity be moved back on the same alignment. This change will necessitate an increase in the length of one span of the bridge and additional excavation for the abutment. But it will also reduce any claim the plaintiffs might have for damages. The two columns will then be the only obstacles in the way of the plaintiffs, and occupying together but four feet of their land. These columns will extend upon ground now unused by the plaintiffs, and far enough distant from their present tracks to admit of two additional tracks before the nearest column is reached, and leaving to plaintiff's space for eight additional tracks altogether if ever in the future they should be needed.
    Influenced by the foregoing principles and considerations the. Court are of opinion that the modifications of the plan of defendants, as here suggested, would do equity between the parties and the least practical injury to the plaintiffs.
    And no.w, July 16, 1888, the defendants are enjoined from further proceeding with their said work except in conformity to the foregoing modifications, and until they shall have filed in the office of the Prothonolary a plan or draft embodying the same, and shall have tendered to the said plaintiffs adequate security according to law to secure them against the damages sustained or likely to be sustained by them from the occupation of their ground as aforesaid by the defendants. And upon compliance with this order by the defendants the injunction will be dissolved.
    An application for an attachment against the defendants was refused in the following opinion per:
    Boyer, P. J.
    On the 16th of July, 1883, the defendants were enjoined by this Court from proceeding with their work of building'a bridge in the manner proposed by them over the railroad of the plaintiffs upon certain permanent structures to be erected upon the premises of the plaintiffs at West Manayunk; except according to modifications suggested by the Court whereby the crossing could be effected with less occupation of the. property of the plaintiffs and with but inconsiderable injury to the latter, and thereupon the Court enjoined the defendants from further proceeding with this said work, until they had filed in the office of the Prothonotary a plan or draft embodying said modifications, and tendered to the plaintiffs adequate security as provided by law against any damages sustained or likely to be sustained by them from the occupation of their ground as aforesaid by the defendants.
    Whereupon the defendants accepted the modifications, and filed in the office of the Prothonotary a plan or draft in conformity with the decree of the Court; and tendered to the plaintiffs, and filed of record, an approved bond with adequate security against damages as directed.
    The plaintiffs now come into Court and allege by affidavit filed that the defendants instead of a stone abutment as described in the plan adopted, and iron columns included therein, are erecting substantial trestle work of timber, which from its material and strength has not the appearance of what is termed false work, merely to facilitate the erection of the bridge described in recorded plan, but is, as they believe, a substitute therefor intended to last a long time and is built upon the ground belonging to the plaintiffs. And they therefore pray for an attachment against the defendants for a violation of the injunction heretofore granted against them.
    The defendants on the contrary disclaim under oath all intention to disobey the decree of the Court in the premises ; or, in the erection of their permanent bridge to depart in any respect from the plan of construction allowed, and of record. They admit the temporary erection of the trestle-work; but declare it to be intended only as a temporary expedient whilst the construction of the permanent bridge is going on, the excavations for which have been commenced; and that the trestles will be removed whenever the plaintiffs require the use of the ground occupied for that purpose.
    The ground so occupied is not now used by the plaintiffs for any purpose; but is intended, as they declare in their bills, to be used at some future time for the construction of additional tracks, and the storage of cars thereupon. It is located upon the steep declivity of a hill, and would require much túne and labor to reduce it to a level -\fhich would admit of its adaption to any purpose of that kind.
    It is admitted that the trestle-work complained of does not now operate to the disadvantage of the plaintiff’s or interfere with any of their corporate functions. Any excavation made by the defendants in reducing- the grade of the declivity must ultimately inure to the benefit of the plaintiffs if ever hereafter they should use the ground for the intended purpose.
    We now reach the question whether the defendants have violated the injunction of the Court by the erection of the trestle-work complained of. It is argued on the part of the defendants that the injunction has expired by its own terms. This is true as respects that part of it which enjoins the defendants from proceeding with their work until after filing an acceptance of the modified plan and the required bond. Having done this the defendants were free to go' on with their work, and, in so far, the injunction was dissolved by its own terms. But the decree that the bridge shall be built in conformity to the accepted plan still stands, and it is clear that compliance therewith may be enforced by the Court by attachment upon satisfactory evidence of an intentional violation thereof by the defendants, and in such case obedience to the decree should be enforced to sustain alike the dignity of the Court and the rights of the plaintiffs.
    Whether or not upon the facts existing in the case, an attachment should issue against the defendants depends upon the application of certain general principles recognized by Courts of Equity.
    1. “An order of commitment for breach of an injunction being strictissimi juris it will not bo granted except, upon clear and satisfactory showing of the actual violation.” . '
    2. “When the conduct complained of, although literally a breach of the injunction, is not so in spirit, and when defendants have acted in good faith, and there is no evidence of any intention on their part to violate the writ, they will not be held guilty of a contempt of Court.”
    
      8. “Where defendants, upon a rule to show cause why they should not be attached for contempt, disclaim any intention of violating the injunction,” and the plaintiffs only seek a determination of the Court as to the duty of defendants rather than as a. punishment for contempt — it is proper to discharge the rule.
    4. “It has been laid down as a general rule, subject, however, to some exceptions that the offense complained of as a violation must be injurious to the rights of the plaintiffs in the action." So “nothing will be deemed a violation of an injunction forbidding the disturbance of a particular right of way which does not interfere with the free exercise of the right or easement.”
    “The conduct of the party obtaining the injunction, as well as the motive of the defendant in violating it, may properly be taken into account in determining the defendants’ liability by. the breach.”
    See 2. High on Injunctions, sec. 1449,1446,1456,1432,1450.
    The declaration of the defendants under oath, that they have no intention to violate the injunction by any departure from the decree of the Court in the erection of their permanent bridge may well be accepted as sincere, when we reflect that they are fast bound of record by their own acceptance and bond, and they may eventually be compelled by a mandatory injunction to remove the structure built in violation thereof at whatever cost. Is then the erection of the temporary trestle-work in itself a violation of the injunction, without regard to its object? Not so, in the opinion of the Court; unless it can be proven to be inconsistent with the requirements of the writ. If the trestle-work is intended to be only temporary, and to facilitate the erection of the permanent structure, there is no direct violation of the injunction. Nor can it be said to be in violation of the spirit of the injunction, unless it appears that it obstructs or -in some way interferes with the present or contemplated uses of the plaintiffs of the ground temporarily occupied by the trestles. For the decree of the Court was intended to afford to the defendants all reasonable facilities for crossing the road of the plaintiffs, taking care to do the least practicable injury to the latter. No injury to the plaintiffs can result from the present use of their outlying and unoccupied hillside for the trestle-work, nor is any present injury alleged. When the plaintiffs require the ground for their own contemplated uses' or before that, the timber must be removed. This the defendants concede. The plaintiffs, in the present state of the record, can lose nothing by acquiescence, the defendants having disclaimed any right or intention permanently to maintain their trestles.
    There is another consideration which weighs with the Court in withholding its present interference. The plan for the crossing-bridge sanctioned by the decree of the Court was accepted by the defendants; but it has not been accepted by the plaintiffs as a settlement of the contention. On the contrary they are pushing their bill now before a master in view, it may be supposed, of a possible unsettling of the decree of this Court on that point, hereafter. This Court, mindful that it is a subordinate tribunal, should hesitate arbitrarily to compel the defendants to' incur great and possibly useless expense without some reasonable necessity, by prohibiting a temporary structure not necessarily inconsistent, as has been shown, with the present decree, and the temporary existence of which can work no present injury to the plaintiffs. It is the duty of the Court to protect both parties from unnecessary damage.
    On motion, however, the Court will direct the defendants to give additional security, if the plaintiffs should deem it necessary for their protection.
    And now, February 4, 1884, the motion for an attachment is overruled, and rule discharged.
    The case was referred to Henry C. Boyer, Esq., as master, who reported as follows:
    The Master finds the facts as follows:
    The Pennsylvania Schuylkill Valley Railroad Company, the ■corporation substituted for the Philadelphia, Norristown and Phcenixville Railroad Company, the defendant in the, original bill, has located the line of its railroad across the railroad of the plaintiff company, above grade, at West Manayunk, in the ■County of Montgomery, on the west bank of the Schuylkill river, which they propose to bridge. The Philadelphia and Reading Railroad Company at this point own a long strip of ground of about one hundred feet in width, and extending from a point north of this locality for a distance of nearly a mile below, on the southwestern side of the present centre line of its main tracks. This strip of ground was acquired by the plaintiffs during the years 1867, 1868 and 1869, from various parties for-the purpose of constructing additional tracks and sidings thereupon and forming a great track and freight yard for the proper conduct of their business. Such a yard has become absolutely necessary at this point according to the uncontradicted testimony of the plaintiffs. It is immediately north of the Falls of Schuylkill bridge, where the traffic has to be divided, and where standing and shifting room for cars is demanded. There is no other place near the Philadelphia terminus of the main line where such a yard could be established.
    It was shown that the present tonnage of the plaintiffs’ road would justify the actual development of this property for yard purposes, occupying the same entirely with tracks, and extending the entire distance from West Falls toa point above West Manayuuk. All the tonnage of the main line, except that diverted at Bridgeport to the Philadelphia, Germantown and Norristown Railroad branch, has to pass this point, including the New York local traffic, interchange of traffic via Bellevue Junction for the Norristown branch, same via Nicetown for the Germantown branch and Ninth street, and same via Fairhill Junction for the North Pennsylvania Division, and same via Belmont for Philadelphia. Trains mustbei’elayed and reinforced at the Falls on account of grades beyond, and reassorted for delivery to private switches and turnouts. Hitherto the traffic has been accommodated with great difficulty and delay, and at much increased expense.
    The shifting of ears, which would by the development of this' property be done outside of the city, has had to be done hitherto within the built-up portion of the city limits. Cars have also had to be side-tracked along the road, and the plaintiffs’business with other roads limited in consequence of its inability to receive the same at terminal points.
    All these difficulties would be avoided to a great extent if not entirely, by a subterminal shifting yard at the point in question. It was shown that twelve tracks from Manayunk tunnel to West Nalls would, be necessary. The actual devotion of this whole strip of ground to the purposes of a track yard, according to the testimony of the plaintiffs, has long been intended, and has only been delayed by the plaintiffs’ financial embarrassment. Property on the other side of its railroad cannot now be acquired'.
    This continuous strip is the most available laud belonging to the plaintiffs for any such proposed extention of their railroad, but being for the most part upon steep declivities, will require extensive excavation and grading to adapt it to such purposes. How soon this work may be undertaken, or what addition to the present facilities is immediately contemplated by the plaintiffs, the testimony leaves uncertain. T he' land described, though purchased in the years 1867v 1868, and '1869, remains as yet without such ' actual appropriation, and no evidence has been submitted before the Master showing any action on the part of the board of directors or managers of the plaintiff company in reference to the construction of such sidings. The plaintiffs claim that at the point of crossing their road the defendants proposed in the first instance to occupy a portion of this strip of land by erecting an abutment forty-three feet within their southwestern line, and also to build a-stone pier of about thirty feet in length, extending across the middle portion of the said strip of land, the effect of the two structures being to appropriate about seventy-two feet of the width of the plaintiffs’ ground at that point, leaving them only .about twenty-eight feet space south of the centre lines of their main tracks. See plan’marked “H. C. B., No. 1.” This .alleged plan was altered, however, by the defendants, who then proposed as follows, as stated in paragraph 3 of their answer:—
    “It is proposed to span the space to be occupied by four tracks of the said plaintiffs’ railroad with an iron bridge, giving a clear headroom of not less than nineteen feet above the rail of that road; said bridge to rest on the river side on a stone pier located on the defendants’ property, as shown on the plot at point ‘A’ (which is hereunto annexed and asked to be taken as part of this answer), and at the other end on two iron columns and a plate girder. The columns are to be placed as shown on said plot at points marked ‘B and C,’ one between parallel tracks Nos. 4 and 5, and the other between tracks Nos. 6 and 7, which tracks are to be laid nine feet apart to allow sufficient space for the columns. The small pier at ‘1)’ on the plot, supporting one end of the plate girder, is to be so located as to enable the said plaintiff to excavate to the full width of its right of way at surface, leaving a slope of one-half foot slope horizontal for each foot of vertical height. From ‘B’ ‘C’ there will be an iron bridge extending to ‘E,’ where it is proposed to placea stone abutment, so located as' to secure to the said plaintiff the same width of roadway as at ‘D.’ The said plaintiff has in use at the present time two tracks Nos. 1 and 2. Additional running tracks, Nos. 3 and 4, together with the side-tracks Nos. 5, 6 and 7, may be constructed in the future at the option of the said plaintiff, and this is the maximum number of tracks which can be laid on the land now owned by the said plaintiff with the slope at the extreme outside limits of its property of one-half foot horizontal to one foot vertical.”
    The ground at this point slopes northwardly from a height of forty feet at the southern boundary line of the plaintiffs’ property towards their present railroad tracks. In order to use the land for a track yard and sidings as suggested by the affidavits extensive excavation of a costly character would be required.
    Such excavation being made, however, the plaintiffs, by building a retaining wall of ten and half feet base within the southwest line of their property, by spacing the tracks seven feet between the first four and five and one-half feet between the next four, could lay eight tracks betwmen the present centre line of their railroad and the base of the proposed retaining -wall. But to warrant the expense of such an undertaking to fully appropriate the ground in the manner suggested, would require an extraordinary demand for such facilities. By the defendants’ amended plan, space sufficient for one track being occupied by the iron columns, only six tracks could be so constructed.
    The appropriation of some portion of the plaintiffs’ ground to effect a crossing could only be avoided'either by changing the present alignment of the defendants’ railroad at the southwest side of this strip, and the construction of a straight bridge two hundred and forty-five feet long spanning the whole of the plaintiffs’ property. Or, without changing the present alignment, by. building a bridge two hundred and ninety feet in length and wider than that proposed, using three trusses for its support. Such structures would cost from $60,000 to $75,000 more than that planned.
    The facts in regard to the incorporation of the respective railroads are as stated in the pleadings, no question having been raised thereupon before the master.
    The defendants, on July 21st, 1883, filed a plan in accordance with decree of July 16, 1883. A copy thereof is hereunto annexed, marked “H. C. B., No. 3.”
    By this plan the columns are to be placed between the tracks at the points “B” and “C,” and the abutment “A” and the pier “D” are to be placed ten and one-half feet within the plaintiffs’ line.
    This modification of the defendants’ plan affords room for seven tracks south of the centre line of the plaintiffs’ tracks. As before stated, the effect 'of placing the iron columns being to deprive the plaintiffs of room for one track, therefore, including the track north of the present centre line of the plaintiffs’ tracks aforesaid, room will be affor ded for eight tracks in all at the point in question.
    The Master is of the opinion that the defendants’ bridge and the abutment, columns, and pier, about to be placed according to the defendants’ plan as modified by the Court, will not inter- , fere in any way with the operation of the plaintiffs’ road as it now exists.
    That the injury which may arise in the future to the plaintiffs from the loss of the space to be occupied by the columns, and upon which one additional track might be laid, is too remote an injury to prevent the appropriation of the ground as directed by the Court, or to warrant any change in present alignment of the defendants’ road, or the much greater cost of a wider bridge.
    
      The property of a corporation is like that of an individual, ■subject to condemnation for a public use. If so held for a public use, that is, being property acquired or subject to acquisition under the right of eminent domain, it may be taken for another public use ; and it is sometimes immaterial if the new public use to which it is to b'e appropriated be one of similar character. The franchise of corporation derived from a grant of the State, as well as its otJier property, real or personal, is subject to be condemned for the purposes of a railroad company.
    Pierce on the Law of Railroads, pages 152 and 153, and cases there cited.
    These general principles as .stated in the text are modified by the Courts to suit the requirements of different cases, and a strong necessity must be shown to justify the taking of the property of a railroad company by a rival corporation, when much damage is likely to follow such appropriation.
    In this case the present damage is insignificant and the future damage remote — the plaintiffs being actually benefitted by the construction of the abutment, which relieves them from the building of a portion of the' retaining wall upon the space now occupied by the abutment. When a corporation by the exercise of discretion conferred by statute, has selected land adapted to its purposes, it is not a valid objection to its appropriation, where no wanton motive appears or great mischief will likely ensue, that other land could be obtained which would serve its pul-pose equally well.
    Pierce on the Law of Railroads, 149, and cases cited j
    New York & Harlem R. R. Co. vs. Kip, 46 N. Y., 546 ;
    G-eisy vs. The O. W. & Z. R. R. Co., 4 Ohio St., 308.
    The act of 1849 (section 10, P. H., 1218, pi. 34) under which the company defendant was incorporated, authorizes the president and directors of such company to “locate and determine such route for a railroad as they may deem expedient.” ' It has been held the exercise of such discretion is not subject' to judicial revision when land is taken for a lawful purpose and without bad faith.
    Lodge vs. P. W. & B. R. R. Co., 8 Phila., 345 ;
    Eldridge vs. Smith, 34 Vermont, 495.
    The power of crossing the plaintiffs’ railroad is a necessary incident to the enjoyment of the defendants’ authority to build a railroad between the specified terminal points. The law is well established upon the authority of many eases that a railroad company may be athorized, upon making compensation, to \ cross the tracks of another company at grade.
    Morris and Essex R. R. Co. vs. Central R. R. 2 Vroom 206;
    Mass. Cen. R. R. Co. vs. B. C. & F. R. R. Co., 121 Mass. 124;
    Comm. vs. Penna. Canal Co., 16 P. F. S. 47;
    Pierce on the Laws of Railroads, page 152.
    And in some cases even to use the tracks of the railroad it crosses.
    Kerr’s Case, 42 Barb. 120;
    R. R. Co. vs. Kerr, 45 Id. 138;
    Pierce’s Law of Bailroads, page 152.
    In this casp the crossing, however, is above grade, and the act of June 19th, 1871, sections 1 and 2 (P. L., 1361, Purd. Big., page 288, pi. 39 and 40), provide that in all legal proceedings relating to the crossing of railroads by other railroads the Courts of equity “shall 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 it is intended to be crossed.”
    Exceptions were filed.to the report, but the Court entered the following decree:
    . And now, April 2d, 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 the crossing of the defendant company’s l’ailroad over the property of the plaintiff company shall be by a bridge above grade in the-mode set oat particularly in paragraph 3 of the answer as ■modified by the decree of the Court made July 16th, 1883, and the filing’ of the plan of the said defendants upon July 21st, 1883, that is to say : “33y spanning the space to be occupied by four tracks of the said plaintiff’s railroad with an iron bridge, giving a clear headroom of not less than nineteen feet above the rail of that road, said bridge to rest on the river side on a stone pier, located on the defendants’ property, as shown on the plat at a point “A” (said plat being hereto annexed marked “H. C. 33. No. 3,” and to be taken as part of this decree,) and at the other end on two iron columns and a plate girder. The columns are to be placed as shown on said plat at the points marked “33” and “C,”,one between parallel tracks Nos. 4 and 5, and the other between tracks Nos. 6 and 7, which tracks are to be laid nine feet apart to allow sufficient space for the columns. The small pier at point “D” on the plat supporting one end of the plate girder is to be located ten and one-half feet within the plaintiff’s line. From “33” and “C” there will be an iron bridge extending to “E,” where a stone abutment shall be placed, located ten and one-half feet within the plaintiff’s line, so as to secure to the said plaintiff the same width of roadway as at “D.”
    That a final injunction shall issue restraining the said defendants, the Pennsyvlania Schuylkill Yalley Railroad Company, its officers, employees and servants, and the said defendants Armstrong and Erskine O. Smith, their and each of their servants and employees, from further proceeding with the construction of said bridge except in conformity with this decree. Nothing herein, however, shall be held to prevent such teniporary occupation of the unused land of the plaintiff as may be considered necessary or proper by the Court in the meantime to facilitate the construction of the said bridge and not inconsistent therewith. And it is further ordered that the record costs incurred up to the date of the filing of the decree of the Court of July 16th, 1883, be paid by the defendants, and that the costs in the proceedings subsequent to that date be equally divided between the plaintiff' and the defendants.
    The Philadelphia and Reading R. R. Co. then appealed to the Supreme Court, complaining first of the action of the Court in allowing columns to be placed within the limits of their right of way, and second in not requiring the removal of the trestle-work immediately.
    
      Thomas Hart, Jr., and James Boyd Esqs., for appellant
    argued, that the facts as found by the Master that the crossing could be-made without occupying any of appellants roadway, and the additional cost of from $60,000 to $75,000 was not a sufficient-reason for allowing the columns to be so placed ; Pennsylvania R. R. Co’s. Appeal, 8 W. N. C. 813. The question whether this-land is necessary to the franchises of the company is one of fact; Plymouth Railroad vs. Colwell, 39 Pa. 337; Shamokin Yalley Railroad vs. Livermore, 47 Pa. 465, and if so is protected,, Longstreth vs. Philadelphia & Reading Railroad, 11 W. N. C. 309. Railroad vs. Berks County, 6 Pa. 70; Junction Railroad vs. City, 7 W. N. C. 87. It is not necessary that the company should use all the land immediately ; if the purpose is to acquire-additional track room ; Lodge vs. P. W. & B. R. R. 8 Philadelphia 345; P. W. & B. R. R. vs. Williams, 54 Pa. 103; Black vs.. Reading R. R., 58 Pa. 249. A railroad company can not take-the property of another railroad by right of eminent domain,, unless authorized expressly by its charter; Lewis vs. German-town, Norristown and Phoenixville Railroad Company, 39 Leg.. Int. 23; Eastern R. R. Co. vs. B. & M. R. R. Co., 111 Mass. 125 ; Towanda Bridge Co. 91 Pa. 216; Housatonic R. R. vs. Lee & Hudson R. R., 118 Mass. 391; B. &. M. R. R. Co. vs L. & L.. R. R. Co., 124 Mass. 368; B. & A. R. R. Co. 53 N. Y. 574; Boston H. T. & W. R. Y. Co. 79 N. Y. 64; N. J. S. R. R. Co. vs. Long Branch Commissioners, 39 N. J. Law 28 ; Milwaukee & St. Paul R. R. Co. vs. Farbault, 23 Minn. 167; Barber vs. Andover, 8 N. H. 398; Armington vs. Township, 15 Vert. 745; State vs. Montclair Railway Co., 35 N. J. Law 328; Drogheda Ry. Co. vs. N. & K. Ry. Co., 5 Irish Eq. N. S. 393; In re Kensington, 2 Rawle 445; Western Penna. R. R. Co’s. Appeal 11 W. N. C. 231. The Courts will guard the property of one-company from the encroachments of a second company; Titus-ville and Petroleum Centre R. R. Co. vs. Warren & Venango R. R. Co., 2 Schuylkill Legal Record 253; W. & P. R. R. Co. vs. D. H. & W. R. R. Co., 29 Leg. Int. 373; Lake Shore & M. S. Ry. Co. vs. N. Y. C. & St. Louis Ry., 8 Federal Reports 858; Western Penna. R. R. Co’s. Appeal, 11 W. N. C. 231. This case is not within the provisions of the Act of June 19, 1871, P. Laws 1361. It is the duty of the Courts in this case to prevent •any property of the appellant being taken, as it is simply a question of economy; Penna. R. R. Co’s. Appeal, 8 W. N. C. 313; Northern Central R. R. Co’s Appeal, 102 Pa. 621; Western Penna. R. R. Co’s Appeal, 11 W. N. C. 231. The Court having made an order directing how the crossing should be made, should have enforced their order, and not have allowed the trestle to .remain; Kerr on Injunctions 638 ; Spokes vs. Banbury Board of Health, L. R. 1 Eq. 42; Russell vs. East Anglian Railway Co., 3 Mac & G-ordon 104; Richards vs. West, 2 Green’s Ch. 456; People vs. Bergen, 53 N. Y. 104; Cape May R. R. vs. Johnson, 35 N. J. Eq. 422.
    
      H. K. Weand and C. H. Stinson, Esqs., contra,
    argued that the appellee had the right to' cross appellant’s railroad at or above grade in such a reasonable manner as to do the least practicable injury; Act April 4, 1868, P. Laws 64, Sect. 10 ; Western Pa. R. R. Co.’s Appeal, 11 W. N. C. 231; Northern Central R. R. Appeal, 102 Pa. 621.
   The Supreme Court affirmed the decree of the Common Pleas on May 11, 1885 in the following opinion:

Per Curiam.

A careful examination of the facts of this case fully vindicates the decree of the Court. The careful and guarded manner in which the tracks of the appellants are to be crossed, evinces a just regard for the rights of each party. The appellant cannot equitably demand any more, and the appellee cannot reasonably •construct its road with any less privilege.

Decree affirmed and appeal dismissed at the cost of the appellant.  