Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al.

The Appellate Court in that case, in the opinion by Paxson, C. J., at p. 494, said:

"When a railroad company condemns land it is of necessity the judge of how much is required for its use. If this question were submitted to a jury in every case, the right of eminent domain would be of little practical value. The company had a right, when it condemned the property, to regard and make provision for its future, as well as its present needs." The case at bar is not one in which the right of condemnation was exercised, but the principles governing the rights of defendants are, in our judgment, analogous to those applicable to condemnation cases.

The defendants in this case entered under a lawful grant and were authorized by charter to take such land as might be necessary, claiming under such title they, more than twenty-one years before action brought here, actually widened their right of way to its full width, as required further traffic purposes of 80 feet, and thus defined the limits of their right. The case of Zahn vs. Railway Co., 184 Pa., 66, is therefore in point and supports the Court's action in giving binding instructions. In that case the opinion of the Supreme Court, by Dean, J., pp. 78-79, states the law thus:

"Besides, the owner executed a formal release. It (the railway) was in no sense of the word an intruder * * * but entered by authority of law, with the right to appropriate a strip the length of its road through the farm, not exceeding sixty feet, unless certain specified purposes required more. Its mere entry and occupancy of the land for twenty-one years did not invest it with title to an easement. That it possessed beyond controversy by its lawful entry and compensation * *, but as no mon

*

uments on the ground erected have survived to now indicate the extent cf the original taking, and no survey on record or elsewhere serves to define the boundaries, they must be determined by the extent of the actual occupancy. And while we do not decide that a trespass by a railroad corporation for twenty-one years would bar the owner from re-entry, yet we do decide that a lawful entry, appropriation and exclusive occupancy for the period of twenty-one years, of land not exceeding the width of the lawful limit, settled forever the boundary of the easement."

As we have already stated, if defendants had a right to a so-called "shelf" or level top of their railway embankment 80 feet wide, they also had the right to occupy enough land to properly support the embankment. The right to such slopes is a continuing one and, if, in the proper use of the railway property it becomes necessary to extend the "toes" of the slopes the results is damnum absque injuria: Gillespie vs. B., R. & P. Ry. Co., 226 Pa., at p. 34.

The case just referred to is also authority for the raising of the tracks and the consequent extension of the slopes without making further comFensation. Vide opinion of Reed, P. J., affirmed, pp. 31-34.

In any event, we believe this case might be rested upon the doctrine of estoppel. The defendants' roadbed was undoubtedly extended to the width of 80 feet not later than 1884, and James H. Horner and W. B. Rodgers, the plaintiffs, both bought the land in controversy in 1900, with the easement of the defendant to the extent now claimed by them visible upon the ground giving notice by its presence to all the world.

The admission of the condemnation proceedings, in defendants' rebuttal, was, it seems to us, entirely proper. Plaintiffs in their rebuttal offered evidence tending to show an apparent appropriation of not to exceed 32 feet, made as of the date of the Dilworth grant. What was the width with which the Board of Directors of the original Ohio & Pennsylvania Railroad claimed, not only through the Dilworth tract, but other

Rodgers et al. vs. Pittsburgh, Fort Wayne and Chicago R. Co. et al.

lands in the vicinity? Could the claim be better shown by a record which brought the 80 feet right of way on both sides of the Dilworth property right up to the very lines of that property? Can it be conceived that in 1850 the Railroad would claim and take 80 feet through the Jackman farm and limit itself to 32 feet on the Dilworth? It was not res inter alios acta, it was an act defining the claim of the company to build and maintain a railway if needed on a way 80 feet wide throughout the length of its line, if it saw fit. These reasons moved the Court to admit the record.

It is also urged that the Court should not have permitted the introduction of certain private maps. The reason for new trial does not specify which. Exhibit No. 2 was a blueprint identified by Mr. Sprague, showing the results of his own personal surveys. This was admitted without objection. Mr. Trimble, the engineer, in charge at the time of the actual changes already discussed, produced and identified a blue print known as Exhibit No. 3. This is the one no doubt referred to as a private plan. It was admitted over plaintiffs' objection as having been produced from the permanent records of the defendants' engineering department, and as containing lines and figures placed on it by the witness Sprague personally, or under his immediate personal direction; he did not make the plan himself, but directed the making of it and placed some of the work upon it. The testimony of Mr. Trimble on the subject, including the Court's questions as to the admissibility of the Exhibit, will be found in transcript, testimony of Trimble, pp. 36-42. We believe that the Exhibit was properly admitted.

For the various reasons herein presented, we have refused the plaintiffs' motion for a new trial.

In re Annexation of Borough of Carrick to City of Pittsburgh.

Municipalities.

Annexing Contiguous Territory

Representation Acts of Assembly.

Taxation · Council

On a petition to have the Court order an election to annex a borough to a city of the second-class remonstrants urged that the main thoroughfare between the borough passed through two intervening boroughs and the city and that the proposed territory touched the city line for only a short distance and that such contact was not the "contiguity" contemplated by the Act of Assembly, and that the street directly connecting such contiguous territory were not main arteries of travel. It was further urged that the borough taxpayers would have additional burdens without adequate returns, and that they would be practically denied representations were the Borough Council to be abolished in that the city was governed by a small council elected at large under the provisions of the Act of May 10, 1909, P. L. 501.

Held: That the contentions were without merit. That the abolishing of the Borough Council would not deprive anyone of representation provided by law, and that the Legislature has provided a complete and logical method to care for all interest affected by the proposed annexation.

Petition to order an election to annex borough. No. 61 June Sessions, 1914, Miscellaneous. Q. S. Allegheny County.

Frank I. Gosser, for petitioners.

W. H. Lemon and E. B. Strassburger, for Borough of Carrick, exceptant. J. Boyd Duff, for Carrick Board of Trade, exceptant.

REID, J., September 10, 1915.-On August 21, 1914, the petition of a large number of the qualified voters of the Borough of Carrick was presented to this Court praying that that borough be annexed to the contiguous City of Pittsburgh. This petition was ordered filed, and the Court further directed that notice of its presentation and filing be given to the Mayor of the City as its chief executive by the service upon him of a certified copy of such

In re Annexation of Borough of Carrick to City of Pittsburgh.

order. The Court's order also directed that within three months from date of such service the Council of the City by proper action either consent to or disapprove of the proposed annexation.

On August 24, 1914, as appears by acceptance of service duly filed upon the same date, the Mayor of Pittsburgh acknowledged service upon him of such certified copy, and on November 17, 1914, being within the three months provided by law, the Council of said City duly enacted Ordinance No. 415, which was on November 23, 1914, approved by the Mayor, whereby it expressed its consent to said annexation, as appears by certified copy of the Ordinance filed July 21, 1915.

On July 22, 1915, the Court made an order fixing August 19, 1915, for the hearing of such petition for annexation, and directed that notice of the hearing be given to all the parties in interest by the posting of printed handbills in no less than twenty of the most conspicuous places within the territory sought to be annexed and by the service of a certified copy of the order fixing the hearing upon the Burgess and the President of the Council of said Borough-all of which was done as appears by proofs thereof filed in the case.

On August 16, 1915, the Borough Council by its attorneys, filed its answer to the petition, setting forth reasons why the proposed annexation should not be made, in substance as follows:

That the petition shows the names of 419 alleged signers, but that only 238 of them were qualified voter;s

That the petition was filed August 24, 1914, and that due to the lapse of time it shows the sentiment of but a small proportion of the voters of the borough; and,

That due to the change of sentiment an election would be a needless expense, not warranted by the facts. This answer concludes by an averment that a petition is therewith presented from a number of the signers to the petition for annexation asking to withdraw their names from such petition. However, no such document was placed on file, nor did it come into the hands of the Court, and the original petition, therefore, stands as filed for whatever it may be worth.

A remonstrance signed by a large number of taxpayers and registered voters for the Borough of Carrick was also filed by counsel for the Board of Trade setting forth the following specific exceptions to this proceedings: (1) No adequate public highways directly connect said Borough and said City; (2) Taxpayers of Carrick Borough will be subject to a burden of taxation without a corresponding return; (3) the proceeding is contrary to law.

As noted hereafter, the Court was prepared to hear any testimony which might be adduced in support of any exception, but no such testimony was offered save as to the topography of the adjacent territory, difficulty of access, etc. No attempt was made to support the exceptions above quoted, that the taxpayers of Carrick Borough will be subject to a burden of taxation without a corresponding return. So far as the exception as to the proceedings being contrary to law is concerned, it is included within the discussion of the position taken by counsel for the Borough of Carrick and requires no separate discussion.

The Court was ready to hear any parol testimony as to the matter which the petitioners or the remonstrants wished to offer, but no other witness was called except Mr. McGovern, a Civil Engineer, who was called by the remonstrants to prove certain facts as to the topography of the territory of the City of Pittsburgh and the Borough of Carrick at and about the points of contact of their respective lines, the means of communication, the nature of the ground, the character of the streets or roads in their respective con

In re Annexation of Borough of Carrick to City of Pittsburgh. tiguous districts, and the distances along the lines of contact. This witness produced and identified a map which the Court has marked "Exhibit A," and which is returned herewith; and he testifies that the lines of the City and Borough are contiguous for 3,328 feet, or 6/10 of a mile. He testified that, as shown by the map, the principal thoroughfare between the Borough and the City is Brownsville Avenue, which passes, not across the line of contact of the adjacent territory of the municipalities in question, but reaches the City of Pittsburgh through the adjacent Boroughs of Knoxville and Mt. Oliver; that much of the territory which is contiguous is hilly and cut by ravines and water courses, the streets being steep and rough, and not better in most instances than country roads, and that it would be a matter of great expense to connect this adjacent territory by paved and well-graded thoroughfares. There is, however, communication from one of these contiguous districts to the other by certain of these rough and hilly streets and at least one line of electric passenger railway, the Castle Shannon, does cross from one district to the other over the line of contact.

Counsel for the Borough of Carrick and for the Carrick Board of Trade were both heard in opposition to the annexation. Counsel for the Borough admitted at the hearing that, notwithstanding the matters set up in their answer, the petition does present the names of at least five (5) per centum of the qualified voters, and that there are no technical defects in the record of the proceeding which would warrant the Court in overturning it for lack of regularity. The Court, therefore, determiens that the proceedings are regular.

Counsel for the Borough, however, maintained that the Court must refuse to submit the matter to an election for the reason that the legislation under which the petition was presented is conflicting and if carried out as required by the original Act of April 28, 1903, P. L. 332, the amendatory Act of April 19, 1905, and the supplementary Act of May 28, 1907, P. L. 295, will deprive the citizens of the annexed territory of the right of representation. This contention apparently being based upon the fact that while Section 6 of the Act of April 28, 1903, provides (inter alia) that "members of council of an annexed borough shall be members of the common council of the city and remain until the expiration of the term for which they were elected, and until their successors are duly qualified under the arrangement of the territory into wards * **" the present law providing, as it does, for a small council in cities of the second class, would necessarily eliminate the borough's councilmen. They also rely upon the language of Section 1 of the Act of May 28, 1907, providing for representation in the city government.

To this position the counsel for the Carrick Board of Trade adds the propositions: First, that the words of the Act "any contiguous city" do not mean mere physical contact even for the distance of 6/10 of a mile, but must be interpreted as meaning "practical and convenient contiguity," such as makes inter-communication and transit back and forward over the lines of contact natural and desirable; and, second, that plus the difficulty of affording the annexed territory proper representation in Council, as above indicated, the present "School Code" is in conflict with the legislation governing annexation and insurmountable difficulties will be encountered in working out the respective rights of the old school district under the new regime. He also maintains that, notwithstanding the admitted regularity of the proceedings, the Court must inquire into the desirability of such annexation and exercise its discretion as to whether an election should or should not be ordered.

We are convinced that none of the objections urged by either set of remonstrants is well founded.

As to the proposition of counsel for the Borough, we refer to Acts of

In re Annexation of Borough of Carrick to City of Pittsburgh. Assembly later in date than those above referred to. The most important of these is that of May 10, 1909, P. L. 501, which amends Section 6 of the original Act above quoted, by eliminating the clause of providing that the borough councilmen shall serve as common councilmen of the city. That section as amended now reads:

"If a decree be entered for annexation, on the first Monday of January thereafter the territory so annexed shall become a part of the city to which it is annexed, and all the territory within the limits of the city, as thus enlarged by said annexation, shall be liable for the floating and bonded indebtedness and the interest thereon of both the annexed territory and the city to which it is annexed, so that the taxes shall be uniform throughout the territorial limits of the whole city.

"The territory annexed shall, as soon as practicable, be arranged into wards of the city to which it is annexed, in accordance with existing laws." The fact that the borough councilmen are thus prevented from sitting in the City council, and necessarily cease to be borough representatives, cannot be said to deprive the new City territory of representation, since it simply shares in the general representation provided by law and already in existence, with the privilege at the proper subsequent date of voting for members of council just as the older portions of the city will do. It does not deprive the new territory of sharing in the benefits of the system of city government provided by law any more than did the Act of May 31, 1911, P. L. 461, which provides for a small council, deprive wards which formerly elected their own especial representatives of a voice in their own government.

The Act of June 1, 1907, P. L. 377, provides for the preservation of the rights of creditors and of all liens, and the right of the annexed municipality to enforce all claims and demands is thereby safeguarded, and the Act of May 10, 1909, already cited, provides that all the city territory as increased by the annexed district shall be liable for the floating and bonded indebtedness and interest therein of the annexed territory and of the City to which it is annexed "so that taxes shall be uniform throughout the territorial limits of the whole city."

The Act of April 21, 1911, P. L. 80, simplifies the matter of final annexation by providing that any territory which may be annexed to a city may be added to an adjacent ward or wards, or created into a new ward as the Court having jurisdiction of such annexation may determine. In case of the creation of a new ward the Court shall appoint election officers and name the place or places of holding the first election for ward officers, and for the purpose may order a special election. In such event the officers thus elected shall hold their offices until their successors, who are required to be elected at the next succeeding municipal election, shall be duly qualified. This seems to displace the system provided by the Act of May 28, 1907, P. L. 295, and upon which counsel for exceptants rely as providing for representation. The later act repeals all former ones in conflict with it. It will thus be seen that so far as the practical working out of the annexation is concerned, the Legislature has provided a very complete and logical method.

The contention of the learned counsel for the Carrick Board of Trade as to the legal meaning of "contiguity" cannot be sustained. In fact, if we recognize Webster's definition, territory in the borough, not in actual contact with the city lines, but, nevertheless, in such close proximity as to render annexation desirable, would come within the term.

Webster defines "contiguous" thus: "In actual contact; touching; also, near, though not in contact; neighboring, adjoining." There is much of such nearby territory not included in the 3,328 feet of actual contact.