At of the rails of the said Charleroi Line, which between the railroad and street railway lines as a common carrier, but was using same for the purpose of work trains and construetion material exclusively, but intended (that upon the completion of certain work then in progress) to interchange traffic between the tracks or lines of the railroad and the passenger railway companies. The defendant now interchanges traffic, both passenger and freight, freely between the railroad and the railway over the said connecting link; the passenger and freight cars of the Charleroi Line passing over the Pittsburg & Castle Shannon Railroad, and vice versa. "The consent of the commissioners of Baldwin township was not sought nor obtained for the connection of the tracks, nor for the interchange of traffic, whether passenger or freight, neither by this defendant nor either of the lessor companies." The court stated the following conclusions of law: "(1) Defendant, by its charter, is expressly given the power to connect the Pittsburg & Castle Shannon Railroad and the Pittsburg & Charleroi Street Railway; these being 'works' of defendant company. "(2) Section 8 of the act of June 7, 1901 quired by section 3 of article 3 of the Constitution of Pennsylvania. upon said tract of land a plan of lots acknowledged June 14, 1883, and recorded July 25, 1883, in Plan Book, vol. 7, p. 32, in the recorder's office of Allegheny county, Pa., which said plan is by reference made a part hereof. In and upon said plan Railroad street was laid out to the width of 100 feet, and upon said Railroad street there was then located and maintained and there was shown on said plan an extension or branch of said Pittsburg & Castle Shannon Railroad. Said extension or branch connected with the main line of said Pittsburg & Castle Shannon Railroad with the Pittsburg Southern Railroad, which said Pittsburg Southern Railroad was then located upon a part of Railroad street aforesaid, all of which will more fully appear by reference to said plan. Said Pittsburg Southern Railroad was subsequently abandoned, and the tracks thereof removed; but the said branch of the Pittsburg & Castle Shannon Railroad has, since 1883, been maintained and operated on Railroad street. the time of the making of said lease from the Pittsburg & Castle Shannon Railroad Company to the Pittsburg Railways Company, said spur or branch tracks upon Railroad street extended to within less than 10 feet (P. L. 514), is unconstitutional and void, beoccupies, in passing through said plan, sub-cause the subject-matter thereof is not clearly expressed in the title of said act, as restantially the same location as was occupied by the said Pittsburg Southern Railroad. "The dedication of Railroad street by said Pittsburg & Castle Shannon Railroad Company in said plan of lots was subject to the reserved right of said Pittsburg & Castle Shannon Railroad Company to maintain said branch or extension upon Railroad street aforesaid; and the township of Baldwin and the purchasers of lots in said plan acquired their right to Railroad street, subject to said reserved right of said Pittsburg & Castle Shannon Railroad Company, its successors and assigns. The said branch or extension was located upon the said Railroad street at a considerable height above the grade of the traveled way thereof; and that part of Railroad street which is and has been occupied by the tracks of said branch or extension is not now, and never has been, used as a part of the traveled roadway by vehicles or pedestrians. The defendant has constructed the tracks of said branch or extension to conform with the gauge of the tracks of the said Charleroi Line; but the said tracks, ties, embankments, and slopes of said branch or extension do not and will not occupy more of Railroad street than have been occupied since said plan of lots was laid out by the tracks, ties, embankments, and slopes of said branch, and the defendant has not encroached, and has shown no intention to encroach, upon the traveled roadway of Railroad street, as the same has been maintained since said plan of lots was laid out. "At the time the bill was filed, the de "(3) Although the defendant has accepted the Constitution of Pennsylvania, there is nothing in that Constitution, or in the valid laws passed subsequent to the incorporation of the defendant, which impairs in any way the defendant's power to connect its two works,' as aforesaid. "(4) The conditions and limitations stated in the act of May 6, 1909 (P. L. 458), do not affect or impair the powers of the defendant in connecting its said 'works,' because: (1) The connection in question was made prior to the passage of that act. (2) The defendant derives its powers from its charter, and is not controlled by the conditions on which similar powers are granted to other companies. (3) Said act of 1909 relates to connections made by distinct companies, and not to a connection made by one company between two of its own properties. "(5) The bill should be dismissed. "(6) The plaintiffs should pay the costs of this case." Macfarlane, J., filed the following opinion, dissolving the preliminary injunction: "The case of Kaufman v. Pittsburg & Castle Shannon R. Co., 217 Pa. 599, 66 Atl. 1108, renders discussion of the corporate powers of the defendant company unnecessary. It is not limited by the restrictions of the general railroad act. So far as the general powers given in its charter are concerned, it looks to the act of its incorporation, not to the general acts. It therefore had a right road and to operate it, although it was not | against more than the construction, and connecting with its other lines. It has a whether it included the operation. The Casright to connect the Charleroi Line, a pas- tle Shannon Lines cannot be operated other senger railway leased to and operated by it, than as a railroad. Heretofore the road has with the Castle Shannon, a railroad organiz- been operated by steam; but its proposed ed under the general railroad act. That is operation by electricity does not change its to say, it has the corporate power under its character. Howley v. Central Valley R. Co., charter. As the lessee of the Castle Shan- 213 Pa. 36, 62 Atl. 109, 2 L. R. A. (N. S.) non, it may lay its tracks wherever that com- 138, 5 Ann. Cas. 51. When the defendant pany could; and the latter, in laying out its company receives cars on and transports plan of lots, dedicated to the purchasers the them over to Castle Shannon Road, its powstreets shown upon the plan, subject to the er, as we have indicated, is that of a transeasement of the railroad shown thereon. porting company operating a railroad, not a The lines of track were there connecting street passenger railway. Probably it will with those of the Pittsburg & Southern Rail- not be possible for the observer to see any road; and it appears that for some years change in the manner of propulsion when the they were so physically laid and connecting. car leaves one line for another; but we are The Castle Shannon had a right of way or examining the source of the corporate poweasement to the point where its tracks have er, and not the physical conditions. The been recently laid to the junction with the railroad is now in the township. Its line at Charleroi Line. If the adjoining ground is one time extended over the whole of the now a township road by reason of its having route now traversed in the recent change. been worked by the township authorities, There is no evidence subject to warrant a such adoption was subject to the right of conclusion that any of the line was abandonway. The defendant is re-laying and re-ed. It is not seeking any further use of the habilitating the portion of the track extend- highway than it already possesses. It is ing to a point about 10 feet from the junc- not seeking any new franchise; and, most tion point; and the only question is as to its important, it is the lessee of a railroad, not right to lay the intervening tracks and to of a passenger railway. operate its cars over it, and to transport over it and the rest of the Castle Shannon Lines the cars received from the Charleroi Line. So far as the construction of the tracks is involved, the defendant has gone no farther than its lessor could have done. "The township has no rights in the premises, based upon its control of the highway; for, as we have seen, the railway existed before the highway. "It is true the defendant company is subject to the police power of the state, as expressed in its Constitution and statutes, and to the regulation of the operation of its street railways by reasonable regulations of municipalities under their general powers (Erie v. Erie Traction Co., 222 Pa. 43, 70 Atl. 904); and it is earnestly contended that the Constitution and certain statutes require the consent of the township authorities before the proposed action is taken. "Section 9, art. 17, of the Constitution, reads: 'No street passenger railway shall be constructed within the limits of any city, borough or township without the consent of the local authorities.' This is intended as a safe-guard to the rights of municipalities against the encroachments of companies organized to construct street railways in the first instance, and is a very wise provision, because it would be intolerable for municipalities to be invaded by a public service corporation of this character so closely connected with the everyday life of their people, without having anything to say about it. Erie v. Erie Traction Co., 222 Pa. 43, 70 Atl. 904. The doubt was expressed, however, in "In the operation of the Charleroi Line, it is proposed to receive passenger cars from the Castle Shannon Road and to transport them over its lines. So far as appears, the Charleroi Road is in the township by consent; at least, no question is raised as to the right of the defendant to operate it, and the question of interchange of cars turns upon the right over the part of the tracks recently constructed. "The acts of May 21, 1895 (P. L. 93), and of May 14, 1889 (P. L. 211), enact the constitutional prohibition and need no discussion. "Section 8 of the act of June 7, 1901 (P. L. 514), provides that 'no street railway company * * shall be authorized or permitted to connect its tracks with the tracks of any railroad company incorporated under the law of this state for the transportation of both passengers and freight, nor shall the interchange of cars and continuous movement thereof between and over the tracks of such passenger railway company and such railroad company be authorized or permitted.' The provisions of this section are not expressly recited in the title. It is entitled, and is in fact, an amendment of the act of 1889. Section 8 may be germane to the original act; but the title contains a catalogue of the provisions of the act, reciting everything but this section. This is misleading, and the section is unconstitutional. Philadelphia v. Market Co., 161 Pa. 522, 29 Atl. 286, and cases cited. "The whole case, as presented, does not call for the issuance of a preliminary in nary injunction heretofore issued is dissolv- | township, Manufacturers' Water Company, ed." with franchises covering Patton township, Upon final hearing, the court dismissed People's Water Supply Company, with franthe plaintiff's bill. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Andrew G. Smith and Sylvester J. Snee, for appellants. David A. Reed, for appellee. PER CURIAM. The decree is affirmed, on the findings of fact and of law and the opinion of the court dissolving the preliminary injunction. BURKHARD et al. v. PENNSYLVANIA 1. EMINENT DOMAIN (§ 273*)-REMEDIES OF chises covering Wilkins township, Citizens' Water Company, with franchises covering Braddock township, Rural Water Company, with franchises covering Wilkins township, Valley Water Company, with franchises covering Penn township, and Artesian Water Company, with franchises covering the borough of Wilkinsburg, all in the county of Allegheny and state of Pennsylvania, and is engaged in the business of pumping, storing, selling, and distributing water. The office and principal place of business of the defendant company is in the county of Allegheny. "(2) Prior to 1899, the defendant company, or the companies merged, had provided and erected the works and machinery deemed necessary by the company for the raising and introduction into the districts embraced within its charter of a sufficient supply of pure water, and had provided and maintained the buildings, cisterns, reservoirs, pipes, and conduits required for the reception and conveyance thereof. On a bill in equity for an injunction against the condemnation of land by a water company, it is too late to raise the objection that the company made no proper effort to come to an agreement with plaintiff as to damages, where plain- "(3) By sundry conveyances and assuranc tiff had ample opportunity to present the objec-es of law, fully set out in paragraphs 2 and tion in prior proceedings relating to the ap- 3 of plaintiffs' bill, the plaintiffs, Walburga proval of the company's bond. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 743-764; Dec. Dig. § 273.*]| 2. EMINENT DOMAIN (§ 59*)—NATURE AND EXTENT OF RIGHTS-WATER COMPANY. The right of a water company to condemn land is not exhausted by a single condemnation, where the condemnation of other land is necessary to supply the increasing need of the pub lic. J. Burkhard, Josephine Friday, and Mary A. Saupp, are seised in fee and possessed of a certain tract of land situate in the township of Penn. The fee simple in said property is vested absolutely in the plaintiffs in the proportion of three-sevenths to Walburga J. Burkhard and two-sevenths each to Josephine Friday and Mary A. Saupp, excepting therefrom the coal thereunder, with the mining rights, if any, attached thereto. "(4) In the year 1890, prior to the institution of proceedings in the court of common pleas No. 1, at No. 731, March term, 1897, and within the period when the property was owned by Josephine Wolf or Theodore Heilman, predecessors in title of plaintiffs, the defendant company exercised its right of eminent domain over the property of plaintiffs, containing 5.8519 acres, by the location and construction of a pipe line from its reservoir on adjoining lands which pipe line was constructed along the township road, known as the Puckety road and within the boundary of the tract containing 5.8519 acres The court below filed the following opinion: The pipe line was constructed without the "Findings of Fact. permission of Josephine Wolf or Theodore Heilman and without proceedings being instituted to condemn the right of way, and without damages being assessed or paid to Josephine Wolf or Theodore Heilman. "(1) The defendant, the Pennsylvania Water Company, is a corporation organized and doing business under the act of May 29, 1901 (P. L. 349), and consists of the merger "(5) At No. 731, March term, 1897, the deand consolidation of several separate and dis- fendant company presented its petition to tinct water companies, all incorporated under the court of common pleas No. 1, representthe laws of the commonwealth of Pennsyl- ing that it had exercised its right of eminent vania, and known as the Pennsylvania Water domain over the tract of land owned by Company, with franchises covering Sterrett plaintiffs for the purpose of laying and contownship, East Pittsburg Water Company, structing thereon a 30-inch cast-iron pipe with franchises covering North Versailles line for the transportation of water from its for its corporate uses by a resolution of its board of directors, passed at a regular meeting of the board, held on April 16, 1909. pumping station on the Allegheny river, at Wildwood, to its reservoir on defendant's land immediately adjoining the land now proposed to be taken, and prayed that its bond in the sum of $30,000, therewith filed, be approved. Josephine Wolf, to whom the bond was tendered, was the owner of the property then proposed to be taken, and was plaintiffs' | inter alia, that the defendant company had predecessor in title. The pipe line was not constructed. "(10) On April 17, 1909, the defendant company presented to the court of common pleas No. 2 of Allegheny county, at No. 268, July term, 1909, its petition, representing, been unable to agree with the owners of the land (plaintiffs herein) upon the amount of damages sustained by reason of taking and occupying the land appropriated; that a bond had been tendered to and refused by the owners, and prayed the approval of bond in the sum of $30,000 then filed. On April 22d exceptions to the sufficiency of the bond were filed by the owners, and thereafter, on May 4, 1909, upon leave of court, the bond was withdrawn. On May 11th the defendant company filed its bond in the sum of $30,000, together with a petition, praying its approval. On the same day, exceptions to the sufficiency of the bond were filed by the owners. On the day following, May 12th, the court entered the following order: | 'Exceptions to the bond filed herein are all "(6) About June 20, 1903, the defendant company presented its petition to the court of common pleas No. 2 of Allegheny county, at No. 733, July term, 1903, representing that it had exercised its right of eminent domain over the property now owned by the plaintiffs, and had taken a portion thereof for the purpose of erecting a reservoir thereon, and prayed the approval of a bond in the sum of $15,000 then filed. Thereafter, on December 19, 1903, the defendant company presented its petition to the court of common pleas No. 2, averring that the company had investigated the adaptability of the land for said purpose and found it unsuitable, and, in view of this and of the excessive price and determined opposition to condemnation, overruled, except the first, without, howthe company was desirous of discontinuing the proceedings and withdrawing the bond, which petition was allowed, and by consent of court the bond was withdrawn April 23, 1904. "(7) In 1907, to meet the demand for an adequate supply of pure and wholesome water, it became and was necessary for the defendant company to enlarge its plant by the construction of a filtration system; and, for the purpose of erecting thereon a filtration plant and other works for the reception, filtration, and conveyance of water, the defendant company, in February or March, 1909, surveyed and appropriated 5.8519 acres of the tract owned by the plaintiffs. "(8) In March or April, 1909, but prior to April 16th, W. C. Holly, the superintendent, and acting as the authorized agent of the defendant company, visited Walburga J. Burkhard, one of the plaintiffs, at her place of residence on Penn avenue, in the city of Pittsburgh, explained the company's purpose of taking and appropriating a part of the tract of land situate in Penn township, of which she was one of the owners, and offered her the sum of $10,000 for the part proposed to be taken. Mrs. Burkhard refused the offer, stating that the owners, the plaintiffs, had a cash offer of $40,000 for the entire tract. After the offer had been made and rejected, Josephine Friday, one of the plaintiffs, entered the room where the conference was being held, and Mrs. Burkhard, either in the presence of Mr. Holly or immediately after his departure, informed Mrs. Friday of the offer made by Mr. Holly. "(9) That portion of plaintiffs' property containing 5.8519 acres was duly and propererly appropriated by the defendant company ever, passing upon the merits of the controversy sought to be raised by them, and without prejudice to the exceptants' right to prosecute them in any other form; and the first exception is sustained as to the amount of bond, being of the opinion that the bond should be in the sum of $40,000. A bond in that amount, with the same sureties and in the same form, will be approved.' And on May 14th bond of the defendant company and its sureties in the sum of $40,000 was presented in open court and approved and ordered filed. "(11) Shortly after the approval of the bond by the court of common pleas No. 2, the defendant company entered upon and occupied the 5.8519 acres taken and appropriated, and ever since has been and is now in possession thereof, and has erected thereon, or has in course of erection, the sedimentary and settling basins, the septic tank, and other appliances and apparatus necessary in the construction of a filtration system. "(12) To enable the company to erect and construct a filtration plant, it was necessary that the company acquire additional land, either by purchase or condemnation. In taking and appropriating plaintiffs' land for that purpose, the defendant company exercised its right in good faith. The land taken adjoins the defendant's land, upon which is erected its reservoir No. 1, and in location and elevation is adapted to the requirements of a filtration plant. "Conclusions of Law. "(1) The approval by the court of common pleas No. 2 of Allegheny county of the bond filed by the defendant company was an adjudication that an attempt had previously been "(2) A water company is vested by law with the power to acquire, by purchase or condemnation, such lands as may be necessary for its corporate uses and purposes. This power is not exhausted by a taking for an original construction of its plant and instrumentalities, but may be exercised when, by the growth of population and increased demand, it becomes necessary to acquire lands for the enlargement or extension of its plant. "(3) The defendant company, by a prior exercise of its right of eminent domain over plaintiffs' land, did not thereby exhaust its power to condemn such additional parts thereof as might reasonably be required for the erection thereon of a filtration plant necessary to enable the company to furnish the public with an adequate supply of pure water. made by the company to settle with the | 285, 71 Atl. 101, wherein a like contention plaintiffs, owners of the property, and that was urged, Mr. Justice Brown said: 'We everything had been done entitling the de- need only repeat what was said in Wadhams fendant company to file the bond. v. Lackawanna & Bloomsburg Railroad Co., 42 Pa. 303: "It is now insisted that there was no evidence of any attempt by the de fendants to settle with the plaintiffs and agree upon the damage before they filed the bond given as security. Hence it is inferred that the tender of the bond and the filing of the same was authorized by law, and the defendants were not empowered to appropriate the land for said road. Though the acts of assembly do not in terms require any attempt to make a settlement before a tender of bond or filing it in the common pleas, it is, perhaps, a just inference from their language that there should be some evidence of inability of the parties to agree, before the court shall undertake to pass upon the secu rity offered. But the very offer of the bond is an assertion by one of the parties that they cannot agree, and is in itself some proof of such inability; for, without the consent of both, such an agreement cannot be made, and if it is not so, the action of the court, approving the sureties and directing the bond to be filed, involves an adjudication that everything has been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties as to all matters adjudi "(4) The defendant company is vested by law with the selection of a location for the plant and instrumentalities necessary for the supply of pure water, and this discretion cannot be inquired into, unless it be shown that its action was capricious or wantonly injurious. There was no evidence in this case which would justify the court in re viewing the discretion exercised by the board of directors of the defendant company in taking and appropriating part of plaintiffs' land. were essential to that adjudication.” The act of 1874 does not in terms require any attempt to make a settlement before a tender “(5) The plaintiffs in this proceeding can-cated therein directly, and to all facts which not impeach the constitutionality of the act of assembly under which the defendant company is formed. "(6) The bill should be dismissed, with of a bond or filing in the common pleas.' costs. "The questions raised by plaintiffs and urged upon argument are: (a) Was a bona fide effort made by the defendant company to effect an amicable agreement with the plaintiffs as to compensation for the land sought to be taken, and, if not, what is the effect of its failure to make such an attempt? (b) Had the defendant company, prior to the filing of the bond in this matter, exhausted its right of eminent domain over plaintiffs' property? (c) The act of May 29, 1901 (P. L. 349), under which the defendant company is organized and doing business, is unconstitutional. We will consider the questions in order. "In this case, the bond first filed, on exceptions to the amount being sustained, was withdrawn and a second bond filed, thereby indicating that the parties had not and could not agree. "The defendant company was incorporated for and engaged in supplying water to a number of boroughs, townships, and districts. Prior to 1899, the company maintained a plant, consisting of a pumping station, reservoirs, and apparatus for the raising and storing of water, and had laid the mains and lines required for its distribution. It is not denied by the plaintiffs that the plant operated by the defendant was inadequate to supply a sufficient quantity of pure water, nor that, to meet the demand and make reasonable provisions for the future, it was necessary to construct a filtration plant; but they contend that the defendant had theretofore exercised its right of eminent domain over plaintiffs' land, of which the 5.8519 acres was a part, condemning a part thereof for the construction of a pipe line, an additional part for the erection of a reservoir, and by the laying of a pipe line along the public "The contention of the plaintiffs is that, even conceding that an effort has been made to agree with Mrs. Burkhard, yet there was no evidence to show that an attempt had been made to agree with either Mrs. Saupp or Mrs. Friday, and that, such effort not having been made, the court of common pleas No. 2 had no jurisdiction to entertain proceedings in condemnation and to approve and confirm the bond tendered. |