author: — Pjer Curiam:

text:
    January Term, 1880,
    No. 72.
    June 6th, 1882.
    Strawbridge et al. versus The City of Philadelphia.
    1. The transmission of gas lawfully manufactured by a city for the purpose of public and private illumination, through pipes of good quality laid under the streets, is not carrying on such business in an unreasonable way, so as to constitute a nuisance.
    2. Without proof of negligence, a city cannot be held responsible for damages caused by an explosion of gas escaping from its pipes so laid.
    8. The maxim, Sieuteretuout alienumnon Icedas, does not apply to sucli case.
    4. Qucere, whether a citizen, sharing in the benefits and advantages of gas manufactured by the city, and conducted through pipes laid in the streets by virtue of an ordinance of councils, legally passed and approved, waives his right to compensation for injury accidentally resulting therefrom, without fault or negligence on the part of the city.
    5. Uuder the Act of April 2d, 1790, which provides that the mayor and councils of the city of Philadelphia “ shall have full power and authority to make, order, constitute and establish such and so many laws, ordinances, regulations, and constitutions, as may be convenient and necessary for the purpose of.....lighting,” its streets, lanes, and alleys, the city has the right, by implication, to direct by ordinance that gas-pipes shall be laid in the streets for the purpose of lighting them.
    6. Semble, That one who, contrary to an ordinance of the city, excavates beyond the curb-line into a street, and in doing so removes the barrier of earth between the gas-pipes and his premises, and opens a communication between them, is guilty of contributory negligence, and is precluded from recovery for damages caused by the escape of gas into his premises, and its explosion, even if there be negligence on the part of the city.
    Before Sharswood, C. J.; Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, No. 4, for the County of Philadelphia.

    Case, by J. C. Strawbridge and Isaac II. Clothier, trading as Strawbridge & Clothier, against the City of Philadelphia, to recover damages for the destruction of certain goods- on the premises of the plaintiffs, caused by the escape of gas from pipes of the defendant and its ignition, and for the subsequent hindrance of the business of the plaintiffs.
    The first count of the narr alleged negligence. The second count set forth the ownership by the plaintiffs of the premises, which contained goods of great value; that the defendant was possessed of works for the making of gas, and had pipes for its distribution; and averred, “ that the said defendant ought to have hindered and prevented the escape and flow of gas out of said pipes and into the said premises and that the defendant “ permitted large quantities of gas to escape from said pipes into the premises of the said plaintiffs, so that the same became ignited and thereby destroyed,” etc.
    , By agreement, the case was referred to Rufus E. Shapley, who found the facts substantially'as follows:
    The plaintiffs were, in 1874, owners in fee of the premises at the northwest corner of Eighth and Market streets, in the city of Philadelphia, and carried on therein their business as dry goods merchants.
    For the purpose of enlarging their basement for the convenience of their business, they had, some time prior to the explosion of gas, made an excavation under the pavement along Eighth Street, and covered it with glass and large paving stones, supported by irou girders. In order to prevent dampness the wall and ceilings were lined with boards. Thej'- had, also, for their own convenience made a further excavation, extending outward into Eighth Street two feet six inches beyond the curb-line, and had built therein a brick fire-proof vault, composed of two walls tied together at intervals by whole bricks, but so constructed as to leave an air-chamber between them. The inner wall rested on a stone, and the outer one on the earth. Two iron doors opened outward from the safe into the basement. The walls of the safe were pinned or tied into the stone walls of the basement to prevent them from sinking. In making this excavation the earth was cut down as straight as possible, and the brick walls built as closely against the earth as practicable, but the small space between was not filled up.
    This excavation into the street beyond the curb-line, for the accommodation of the fire proof vault, was in violation of an ordinance of the city of Philadelphia, approved November 12th, 1855 (City Ordinances, 1855, 246), which prohibited the digging of any vault beyond the curb-line.
    At the time of the explosion the plaintiffs had stored in their basement a large and valuable stock of linens, white goods, etc.
    On the 10th of August, 1874, William W. Timson, a contractor, was engaged, under a contract with the city of Philadelphia,™ building a sewer along Eighth Street, northward from Market Street, past the premises of the plaintiffs. Shafts' were sunk at intervals, to enable the workmen to descend into and work at the tunnel which had to be dug under the street for the sewer, and in the prosecution of this work the gas main or pipe which ran along and under Eighth Street, was occasionally exposed. This gas main or pipe was owned by the city of Philadelphia, the defendant, and was operated by it for the transmission of gas for lighting the city. It had been previously laid in pursuance of an ordinance of councils, approved March 21st, 1835 (§ 4,' Ordinance 21st March, 1835), which authorized and directed the trustees of the gas works to lay pipes for the distribution of gas through the city.
    When the workmen reached the plaintiff’s fire-proof vault, projecting into the street as before described, with their tunnelling, the earth alongside of the outer wall of the vault, and part of the earth from under it, fell away, and the gas rnain, against which the wall pressed, was exposed. The gas main at this point, as well as at other points where it became exposed, was carefully shored up by the workmen employed by the contractor, to guard against its breaking, and shores were also placed under the walls of the vault, from which the bricks had commenced to fall away.
    Between the hours of six and nine o’clock, on the evening of the 10th of August, 1874, this gas main or pipe in front of the plainliff’s fire-proof vault was broken, by causes or persons unknown, and in consequence the gas escaped and found its way around, under, into, and through this fireproof vault, and thus into the plaintiff’s basement, and behind the board lining before mentioned; and when some of their employés and a plumber went into the basement with a lighted candle and opened a small door in the board lining for the purpose of stopping a leak of water, the gas ignited and an explosion resulted which blew open the iron doors of the safe, broke some' of the iron girders which supported the glass and stones forming the pavement, set fire to the woodwork, and seriously damaged the premises and the stock of goods in the basement. The plaintiffs thereby sustained damage to the amount of six thousand two hundred and sixty-six and dollars ($6266.25).
    How or by whom the gas main was broken, the evidence failed to show. The pipe was of good quality, and had been laid for several years, during which time no leakage from it appeared to have taken place. No other property in the neighborhood is shown to have been damaged by the breaking of the pipe, or the escape or explosion of the gas No negligence was proved on the part of the defendant or of the contractor.
    The referee decided, inter alia:

      “ Plaintiffs contend that the city had no authority from the Commonwealth to place the gas-pipes in the street, that it is only carrying on a private commercial adventure, and that the injury resulting therefrom must be compensated, irrespective of negligence.
    “ A careful examination of the authorities has satisfied the referee that this position is not well taken, and that no recovery could be sustained in this case against the city for the damages which the plaintiffs suffered, without proof of negligence.
    “ If the injury to the plaintiffs had resulted from the negligence of the contractor, their action would not be against the city, but against him: Painter v. City of Pittsburgh, 10 Wright, 213 ; Reed v. Allegheny, 29 P. E. Smith, 300 ; Wray v. Evans, 30 P. E. Smith, 103 ; Elliott v. Philadelphia, 25 P. E. Smith, 347 ; City of Erie v. Caulkins, 5 W. N. C., 129.
    “ But in this case it is admitted that no negligence has been shown on the part of the contractor, or of the city.
    “ This is not a case of nuisance. A business; which is lawful, and is carried on reasonably, and which does not necessarily affect health, comfort, or the ordinary uses and enjoyment of property in the neighborhood, cannot be a nuisance: Rhodes v. Dunbar, 7 P. E. Smith, 290.
    “ It was certainly lawful for the city to manufacture gas for the purpose of public and private illumination. The transmission of the gas manufactured through pipes of good quality, laid under the streets, was not carrying on such business in an unreasonable way, and did not necessarily affect the health or comfort of the plaintiffs, or their ordinary use and enjoyment of their property.
    “ This caséis, therefore, readily distinguishable from Potts-town Gas Company v. Murphy, 3 Wright, 257; Shuter v. The City of Philadelphia, 3 Philadelphia, 228 ; Smith v. Phillips, 8 Philadelphia, 10; Imperial Gaslight Company v. Broadbeut, 7 H. of L., 600 ; Bamford v. Turnley, 113 Com. L., 62 ; St. Helen’s Smelting Company v. Tipping, 11 H. of L., 642 ; Phinizy v. City Councils of Augusta, 47 Ga., 260 ; Cahill et al. v. Eastman et al., 18 Minn., 324; Wilson v. City of New Bedford, 108 Mass., 261; and many similar cases, which were all clearly cases of nuisance.
    * * * * * * *

      “ Indeed all of these cases, and many others which might be cited, were cases into which the question of negligence or no negligence did not enter, because the defendants’ acts amounted to nuisances, the injury inflicted upon plaintiffs being the direct and necessary consequences of the defendants’ operations.
    “ If the escape of gas into the plaintiffs’ premises had been shown to have been the result of the use by the city of imperfect and insufficient pipes, the city would be responsible on the ground of negligence.
    “ If its escape into the plaintiffs’ basement had been shown to have been the direct and necessary or unavoidable consequence of placing the gas-pipes under the street, and near the plaintiffs’ premises, the city would be responsible, because it thereby created a nuisance, and the question of the city’s negligence would not be considered in passing upon the question of the city’s liability, any more than would be the question of motive. Negligence need not be shown where the nuisance is established, and no amount of care or diligence exempts him who sets up a nuisance, whereby I am injured, from the legal necessity to compensate me' for the loss or injury he has caused me.
    “ But the injury, which these plaintiffs suffered, was not the result of the ci'y’s negligence, in using imperfect and insufficient pipe, nor was it the direct and necessary consequence of the city’s placing gas-pipes along and under Eighth Street. The pipes themselves were of good quality, and during the several years, which had passed from the time •when they were first laid, neither the plaintiffs, nor any one in their neighborhood, had suffered any injury or inconvenience therefrom. If the pipe had not been broken on the 10th of August, 1874, no injury of any kind would probably have ever resulted to the plaintiffs from this use of the streets by the city for public and private convenience. Certainly, it will not be contended (indeed, it was not urged upon the argument) that the city was maintaining a nuisance whereby the plaintiffs were injured, and that, therefore, the damages suffered must be compensated without proof of negligence.
    “ But the plaintiffs’ counsel do contend that injury resulting from the conduct of private business must be compensated at law and in equity, irrespective of negligence, under the general maxim Sic utere tuo ut alienum non Icedas, and, under the principle laid down in Fletcher v Hylands, L. B., 3 Tí. of L., 330, that one who, for his own advantage, brings upon his premises any dangerous thing, likely to escape” and do mischief, must pay for all damages which result, if it does escape, irrespective of negligence.
    “ While the doctrine in that case has been affirmed by some of the courts of this country, in cases of nuisance, or where the damage was the direct and necessary consequence of the defendants’ acts, the New York Court of Appeals recently, in a carefully considered and elaborate opinion, reviewing all the American authorities, and the reasoning of •which seems to be unanswerable (Losee v. Buchanan, 51 N. Y ,.476), decided that such had never been the law in this country, and that no man, without fault or negligence on his part, could be held liable for damages accidentally resulting from the conduct of a lawful business on his own premises, where such business, or the mode of conducting it, does not amount to a nuisance.

      ifc Jfc i\i # # % *

    “ In a very recent ease decided by our own Supreme Court, Sanderson v. Pennsylvania Coal Company, 6 W. N. C., 97, the principle laid down in Fletcher v. Rylands was cited and approved as applying to the case under consideration, which was in every essential a case of nuisance. The plaintiff had purchased and improved a property by building on it a handsome house, and one of the inducements to the purchase was a beautiful stream of pure water, which was traced to its source before the purchase was made, and which was afterwards utilized for family use, bath houses, fish tanks, etc. After the plaintiff had improved his property, and made these uses of the stream, the defendants opened a colliery some distance away, and, in the prosecution of work therein, pumped out of their mine waste water, strongly impregnated with acids and minerals. This water flowed off their land into the stream and polluted it, so that when it reached the plaintiff's premises it was -wholly corrupted and unfit for use, and had to be abandoned. It corroded the pipes through which it passed, and fish died in the tanks into which it had been caused to flow.
    “It wTas strongly urged, on behalf of the defendant, that it w7as conducting a lawful business on its premises which could not be successfully prosecuted without pumping the waste water' out of the mine, and the injury done to the stream which ran through plaintiff’s grounds wras one of the unavoidable results of the prosecution of a business which formed part of one of the greatest manufacturing interests of the State, its case was an exceptional one, and did not fall within the maxim Sic utere tuo ut alienum non Icedas.

    “ The Supreme Court held it was not exempted from the rule which required the owner of property to use it so as not to injure his neighbor.
    “ 1 To render a particular case an exception,’ they say, ‘ to the general principles controlling the- exercise of dominion over property by its proprietor, it must be ascertained to be exceptional, in its surroundings or its facts. From necessity the principles are sometimes relaxed. They do not apply where it is impossible to gather safe facts to become bases for safe rules.’

      “ ‘ But, except -where it is qualified by the existence of peculiar conditions, the duty of the owner of property is defined by the maxim Sic utere,’ etc.
    “ A recent England case, which is, in principle, closely analogous to this action against the city, and in which Fletcher v. Bylauds was thoroughly discussed and distinguished, is Madras Bailway Company v. The Zemindar of Oarvatenagaram, 1 L. B. Iud. Ap., 864 (1874).
    jfí ‘ >¡:
    “It must be evident, from the cases cited, that there is not, in this country at least, any such broad, general, and unbending rule of law as that contended for by the plaintiffs’ counsel, by which every accidental injury caused to another by the lawful use of one’s property, or by the lawful conduct of his business, must be compensated, irrespective of negligence, or which compels the city of Philadelphia to make compensation for injury done by the accidental escape of gas from its pipes, without fault or negligence on its part.
    “Even if the doctrine of Fletcher v. Bylands were accepted as the rule of law in Pennsylvania in analogous cases, there are such manifest and essential differences between the facts of that ease and of the one now under consideration as to render it extremely doubtful as to whether it is applicable to a case like the present one.
    “ In that case the defendants built a large reservoir for the convenience of a mill which they were operating. For their sole advantage they collected in it an unusually large quantity of water, -which would probably, if not necessarily, do harm to their neighbor’s property in the event of its escaping, and which naturally and certainly would escape unless restrained from doing so by the precautionary measures taken by the defendants. It was, therefore, an essentially and highly dangerous thing which they brought upon their premises, and there was consequently imposed upon them the duty of restraining it, for they brought it there at their peril, if they selected an unsafe site, or built insecure and insufficient walls, they fell short of their duty, and cannot be said to be without fault.
    “Yet this is just what they did do, for it was afterwards discovered that the engineers that they had employed had placed the reservoir over two old shafts of abandoned mines, of the existence of which they were ignorant, and, when the reservoir was partly filled with water, the intervening soil between the bottom of the reservoir and one of these shafts gave way, and the water found its way into a neighboring colliery and damaged it. The engineers had failed to make suitable and necessary provision for the support of the water they brought upon the premises, and this was the undoubted cause of the accident. How can it be said that the defendants were without fault ?
    “ But in the present case the city is carrying on a business which, while for certain purposes it must be treated as a private business, cannot but be considered as a great public improvement, of inestimable benefit to all its citizens, by which property is made more valuable, and life and person more secure. And in all these benefits the plaintiffs directly shai’ed. They were thereby greatly facilitated in carrying on their large business in safety and with profit. It was in no sense a business conducted by the city for its sole advantage. And may not the defendants, as citizens of the municipality, sharing in the benefits and advantages of the business thus conducted, and especially in view of the fact that these pipes were laid in the streets by virtue of an ordinance of the councils of the city legally passed and approved, be presumed to have consented to such a use of the streets for their individuabas well as for the general, good ? And to have waived their right to compensation for injury accidentally resulting to them therefrom, where neither fault nor negligence on the part of the city could be established ?
    “Again,there was nothing in the business which the city was carrying on essentially dangerous. While the use of gas for illuminating purposes is now almost universal, and the streets of every large town and city in the civilized world are used for its transmission through pipes, experience does not show that its transmission in this manner is necessarily liable to accident. On the contrary, it shows that the kind of pipes which are generally used for the purpose are amply sufficient to prevent it from escaping and doing harm, unless broken by some extraneous furce.
    “ Lastly, unlike the case of Fletcher v. Rylands, where the cause of the accident was manifestly the failure to select a safe site for the reservoir, and to provide a secure support for the dangerous mass of water which the defendant brought upon his premises, at his peril, the cause of the breaking of this pipe and the consequent escape of gas by which the plaintiff's were damaged, is and must remain unknown. It may have resulted from a slight sinking of the plaintiffs’ own vault and the consequent pressure on the pipe sufficient to break it; or from the wanton or malicious act of some third person; or from some undiscovered defect in the pipe provided by the city, or in the supports placed under it by the contractor. The evidence fails to disclose from which of these possible causes it resulted.
    “ Would it not be straining the principle of Fletcher v, Ry-lands beyond reason to apply it to a case so essentially different? The distinction drawn in Madras Railway Co. v. The Zemindar, between that case and the former, seems particulárly applicable to the present case.
    “ Here the city, in the interest and for the .benefit of the community, took upon itself the work of manufacturing and supplying gas for public and private illumination. The lighting of its streets is indeed a work of great public necessity, and the lighting of them in this way is the only practicable mode of doing so which science has yet discovered. To do.so was a duty imposed upon the city as a municipal corporation. The conduct of this business was, therefore, impressed with the character of lawfulness, and although the maintenance of it may be, in some particular circumstances, dangerous to the interests of private persons, it is by the character which the city, acting for the community, impressed upon it, removed from the class of dangerous and noxious things which a man brings and keeps at his peril.
    “ May it not also be said that ‘ the rights and liabilities of the defendant’ are ‘analogous to those of persons and corporations on whom statutory powers have been conferred and statutory duties imposed?’
    “ This would seem to be one of those exceptional cases referred to by our Supreme Court in Sanderson v. Pa. Coal Co., 6 W. N. C., 97, where, by reason of the ‘ existence of peculiar conditions,’ the maxim Sic utere, etc., does not apply, and where ‘from necessity the principles are sometimes relaxed,’ because ‘they do not apply where it is impossible to gather safe facts to become bases of safe rules.’
    “ But it is urged by the plaintiffs’ counsel that the city is responsible for the damage -which resulted,' because it had no authority from the Commonwealth to lay gas-pipes in the street.
    “ The question of the city’s liability in this action has thus far been considered on the assumption that no such authority had, in fact, been conferred upon it by statute.
    “ It seems that in Great Britain, express legislative sanction is necessary to warrant the laying down of gas-pipes in the public highways (2 Dillon on Municipal Oorp., § 546); and in City of Boston v. Richardson, 13 Allen, 146, while it was held that a town may make a common sewer and drains under the highway for the cleansing of the streets and the accommodation of the inhabitants on either side, whether it owns the soil or not, it was doubted whether gas pipes or railroads could be laid without express legislative grant.

      “ In this State, in Fisher ®. Harrisburg, 2 Gr. Cas., 291, it was held that a municipal corporation has power to make sewers, without any special authority given with that view.
    “No substantial reason is to be found given anywhere in the books why a municipal corporation which has the inherent power to construct sewers, may not also, without express legislative sanction, lay gas-pipes under the highways for the benefit of its citizens. It would be difficult to see wherein the one is not as essential to public comfort and convenience as the other.
    “ In Milhau®. Sharp, 15 Barb., 193, in considering the right of the city to authorize the building of a street railway on Broadway, the Court said with great force, that '•there is a wide difference between a highway in the country and a street in a populous commercial city. The city of New York has the power to authorize the appropriation of its streets to all such uses as are conducive to the public good, and do not interfere with their complete and unrestricted use as highways; and in doing so it is not obliged to confine itself to such uses as have already been permitted. As civilization advances, new uses may be found expedient.’
    “ To hold at this advanced day, that the city of Philadelphia, with its enormous population and almost unparalleled manufacturing interest, requiring, as a necessity, all the latest conveniences in lighting its sti’eets and in supplying public and private buildings with the best-known means of illumination, has not the right to lay gas-pipes, controlled by itself, under the highways, without express legislative sanction, would require a clinging to ancient and threadbare precedents with a blind and unreasoning tenacity which has never characterized the courts of this Commonwealth.
    “ But from an examination of the acts of incorporation, it (foes not appear that the city has such legislative sanction but by implication.-
    “ The original charter granted by William Penn, in 1701, provided ‘ that the streets of the said city shall forever continue as they are now laid out and regulated ; and that the end of each street extending into the river Delaware, shall be and continue free, for the use and service of the said city, and the inhabitants thereof, who may improve the same for the best advantage of the city:’ Lawber Ord. Phila., 1701-1812, p. 1.
    “ The Act of April 2d, 1790, entitled ‘ A further supplement to the act entitled “ An act to incorporate the city of Philadelphia,”’ provided, among other things, as follows, viz.:
    “ ‘ And whereas, some of the existing laws relative to the paving, lighting, and watching of the streets of the city of Philadelphia contain regulations which are now somewhat inconvenient, and others which may be improved; wherefore it will be most convenient and proper to invest the said mayor, aldermen, and citizens of Philadelphia with the power of legislating, estimating and raising taxes, so far as respects lighting, watching, watering, pitching, paving, and cleansing the streets of the city unrestrained by any of the said existing laws relative thereto, therefore, be it enacted,’ etc., ‘ that from and after the passage of this act, the mayor, recorder, aldermen, and common councilmen in common council assembled, shall have full power and authority to make, ordain, constitute, and establish, such and so many laws, ordinances, regulations, and constitutions, as maj- be convenient and necessary for the purpose of ... . lighting, watching, watering, pitching, paving, and cleansing the said streets, lanes, and alleys,’ etc.
    “ And in pursuance of the power thus conferred, it was afterwards provided by section 4 of the ordinance of March 21st, 1835, duly passed and approved, ‘ that it shall be the duty of the trustees so appointed, to proceed forthwith to construct suitable-works for the manufacture of carburetted hydrogen gas from bituminous coal, for the purpose of public and private illumination, and to lay pipes for its distribution through the city.’
    “ It has been held that where the charter gives to the city in terms the power to supply water, or authorize the inhabitants to be supplied with water, the municipal councils may use, or as an incidental power, may permit the contractor to use, the streets for this purpose: 2 Dillon on Municipal Corp., sec. 551.
    “'And also, that the city councils being authorized by charter to cause the city to be lighted with oil or gas, it might authorize the use of the streets for laying gas-pipes : State v. Cincinnati Gas Light Company, 18 Ohio St. Rep., 295.
    “ Where a person or corporation is authorized by law to do a particular thing, or to carry on a particular class of business, or for the manufacture of gas to supply the people of a town or city therewith, so long as they keep within the scope of the power granted, they are completely protected from indictment and punishment for a public nuisance, or from proceedings at law or in equity in behalf of the public therefor: Wood on Nuisances, sec. 746.
    “ And in Blyth v. Birmingham Water Works Company, 25 L. J. (Ex.), 212, it was decided that a -water works company; laying down pipes by a statutory power, were not liable for damages occasioned by water escaping in consequence of a fire-plug being forced out by a frost of unusual severity.
    “A similar doctrine was laid down in Vaughan v. Taft* Vale Railway Company, 5 H. & N., 679, and in numerous other English and American cases.
    “ The conclusion, therefore, seems to be that the city of Philadelphia, having the right by statute to legislate fully in regard to lighting the streets, had, by implication, the power to direct by ordinance that gas-pipes shoujd be laid in the streets for the purpose of lighting them ; and that as the gas-pipe which passed the plaintiffs’ premises was laid under the ordinance of March 21st, 1835, the city would not be responsible for damages resulting to the plaintiffs therefrom, without proof of negligence.
    “ This branch of the case has been considered thus fully on account of the importance of the question involved, and of the dangerous precedent that would be established by holding the city liable for any damage resulting from an accidental breaking of any portion of the hundreds of miles of gas-pipe which it operates, when no fault or negligence on its part was established.
    “ But there is another ground on which it seems that the plaintiffs cannot possibly hold the city responsible for the damages which they sustained.
    “ The plaintiffs themselves provided the means for the gas which escaped from the pipe to get into their premises.
    “ In violation of the ordinance of November 12th, 1855, which prohibited the building of vaults beyond the curb line, they made an excavation into the street two feet six inches beyond the curb line, and solely for their own convenience, built therein the vault, around, under, and through which the gas passed from the street into their premises. Irrespective of the ordinance, they had no right to make such a use of the street. By doing so they removed the natural barrier of earth which stood between the pipe and the premises, and which, if they had not removed it, would probably have made it impossible for the gas to get into their basement. But they did more than simply remove or weaken the barrier between themselves and the gas; they opened, and left open, a communication between the pipe and their basement, so that when the pipe was broken, the gas naturally and necessarily found its way around the other walls of their safe, and through the air-chamber between the two walls, and under and through the safe itself, into their basement. ‘ If it had been a ease of nuisance, there would have been a coming to the nuisance.’ How then can the city be held liable for the damages done by the expíosion of gas which the plaintiffs themselves brought, or assisted to bring upon their premises ? Suppose they had dug a trench out to the water main, and on its breaking, by reason of the use of imperfect pipe, the water had flowed into their basement and flooded it, would they not be guilty of contributory negligence, and precluded from recovering even when negligence was thus established on the part of the city ? From the facts of the case, it seems possible, or even probable, that the pipe was broken by the pressure upon it of this vault which the plaintiffs, in violation of law, had built out into the street. But it is more than probable that if it had not been for the excavation and the vault, the gas which escaped, when the pipe was broken from whatever cause, would, not and could not have made its way into their basement, exploded and caused the damages, compensation for which they now seek to recover. No other property in the neighborhood seems to have suffered any injury from this escape of gas, and it would be manifestly unjust to make the city reimburse the plaintiffs for the loss which they sustained by an accident, which happened, so far as the facts ascertained show, without any fault or negligence on the part of the city, and to bring which about, the plaintiffs’ own acts, in excavating into and building in the street, so largely contributed.
    “ On both grounds, therefore, the referee finds himself compelled to decide against the plaintiffs’ right to recover in this action.”
    The referee awmrded in favor of the defendant, and that the plaintiffs’ pay the costs.
    Exceptions were filed to this award, -which the Court below, Thayer, P. J., dismissed, and he, July oth, 1879, confirmed the award in the following opinion :
    “After the most careful examination of the facts and of the principles of law involved in this case, which is one of much importance, not only in its individual aspects, but also in its public relations, we are of opinion that the conclusion reached by the referee is in harmony with the well-settled law of this State, and that the plaintiffs have no cause of action whatever against the defendant. The whole subject is discussed with so much learning and ability by the referee in his report, that it is necessary to say very little beyond this, that we adopt his views of the case, which are maintained by abundant authority. The case of Bylands v. Fletcher, Law R., 3 H. L., 330; S. C. Law R., 1 Ex., 265, which is principally, indeed, we may say almost exclusively, relied upon by the plaintiffs’ counsel, is by no means conclusive of the present case, although it bears a strong resemblance to it in some of its general features. Leaving entirely out of the case the question of contributory negligence on the part of the plaintiffs arising out of their violation of the city ordinance of November 12th, 1855, which prohibited the building of vaults beyond tbe curb line, and even conceding for the sake of the argument that illuminating gas collected in large quantities possesses some elements of danger, yet it must be obvious that there is a great difference between bringing upon one’s premises a dangerous substance or element for private profit, and the introduction of that substance or element for public convenience by authority of law. In the former case a man may well be held responsible for results which naturally arise out of the dangerous character of the thing itself, for he may be said to assume the risk of all consequences, just as a man assumes the risk of all accidents which may happen from keeping upon his premises animals which are ferce naturce, without regard to any question of negligence in their keeping. On the other hand, it may be said without fear of contradiction, that no man can be held responsible for doing that which he is expressly authorized by law to do, unless he is guilty of some negligence or misconduct in connection with it. In such cases, what is authorized to be done must be done in a careful manner. This is the whole obligation, and unless there be negligence, no action for damages can be maintained for acts which are within the scope of an express authority conferred by law.
    “That the introduction of gas and the carrying of it by mains through the streets for the purpose of lighting the city is a statutory power conferred upon the city of Philadelphia, admits of no doubt. The Act of April 2d, 1790, gave the city full power to ordain and establish whatever laws might be convenient or necessary for the purpose of lighting the city, and the ordinance of March 21st, 1835, directing the laying of pipes through the city for the distribution of gas, was a lawful exercise of the power thus conferred by the legislature upon the city. It lias been so determined in many cases in which the extent of municipal authority under such grants has been discussed. Indeed, it has never been doubted. The distinguished citizens who, on the 28th of November, 1833, presented to the city councils their celebrated remonstrance against the plan of lighting the city with gas, enumerated in that earnest and solemn document (which is now before us) every objection which occurred to them.. They represented that gas was an article as ignitible as gunpowder, and as fatal in its effects; that it would, by explosions and conflagrations, cause an immense destruction of property and an appalling loss of life; that ‘ it would contaminate all the waters- of the Delaware and Schuylkill, and would destroy the immense shoals of shad, herring, and other fish with which they abound ;’ but it was not suggested by the remonstrants that the proposed action of councils w'as contrary to law, or beyond the powers conferred by the legislature upon the city, although among the signers were such eminent lawyers as Horace JBinney, John Sergeant, Benjamin Chew, William J. Duane, Joseph P. Norris, and William L. Hirst, and such citizens as Dr. Physick, Hartman Kuhn, James C. Fisher, John C. Cresson, Matthew Newkirk, Paul Beck, Roberts Vaux, and hundreds of others of distinguished intelligence and prominence. Fortunately the grave fears which were then entertained have been demonstrated to be unfounded, by an experience of more than forty years, and no instance, we apprehend, can be recalled, in all that period, of injury resulting from gas in the street mains, which was not clearly traceable to negligence or improper intermeddling. That the injury suffered by the plaintiffs in the present case was due to one or the other of these causes, we entertain no doubt whatever, but as the facts found by the referee conclusively show that the fault did not lie at the door of the city, he could do no otherwise than find for the defendant. In that finding we entirely concur, and the exceptions are therefore to be dismissed, and the award confirmed.”
    The plaintiffs then took out a writ of error, assigning as errors the dismissal of the exceptions and entering'of judgment for the defendant, and the refusal to enter'"judgment for the plaintiffs for $6266.25 and interest.

      David W. Sellers, for plaintiff in error.
    The manufacture and distribution of gas by the defendant in error creates the same relation as to liabilities which would exist if the same were done by a private trading corporation: 7 Casey, 183.
    The manufacture and distribution of gas being private and for profit, any damages caused by the conduct of the business must be met irrespective of the question of negligence, on the principle that injuries arising to common-law estates are remedied if the cause is from a non-natural factor: Shuter v. The City, 3 Phila., 228; Pottstown Gas Co. v. Murphy, 3 Wr., 257 ; Sanderson v. Coal Co., 5 Norris, 401, as to what constitutes a nuisance in Wood’s Treatise, sec. 115 ; Wilson v. New Bedford, 108 Mass., 261; Cahill v. Eastman, 18 Minn., 324; Phinizey v. Augusta, 47 Georgia, 263.
    The opinion of the Court below, stating that “ it was not suggested that lighting the streets with gas was contrary to law, or beyond the power of the city,” is a misapprehension of the argument of counsel. It is conceded that the manufacture and distribution of gas is lawful, but it is contended that the same was not coupled with a right of eminent domain’ to which was annexed the duty of compensation, and, therefore, it was within the doctrine announced in Gas Co. v. Murphy, 3 Wright, 257.

      O. 3£. Morgan, Jr., and William Nelson West (city solicitor), for defendant in error.

      First. The authorities relied upon by the plaintiff apply only to two classes of cases.

      a. Those where the damage is caused by a nuisance.

      b. Those where the injury results from an unnatural use of property, and such a use as renders it dangerous and “ likely to do mischief.”

      Second. The case now before the Court is not within either of the classes mentioned.
    The business of lighting the city by gas, is authorized by the act of Assembly of April 2d, 1790, and cannot, therefore, be regarded as a nuisance per se: Vaughan v. Taff Vale Railway Co., 5 Hurl. & Nor., 679.

      Third. The plaintiffs contributed to their own injury by their negligent and unlawful construction of their vault. This alone would defeat their recovery.
    January 16th, 1882.
   — Pjer Curiam:

We affirm this judgment upon the very able and exhaustive opinion of the learned referee in the Court below.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    July Term, 1881,
    No. 53.
    January 12th, 1882.
    Appeal of the Union Passenger Railway Company.
    1. The complainants, by their charter dated April 8th, 1859, were empowered “ to lay out and construct a railway from the intersection of Carpenter and Thirteenth streets; thence north along said Thirteenth Street to Columbia Avenue; thence west along said Columbia Avenue to Fifteenth Street; thence south along said Fifteenth Street to Carpenter Street; thence east along said Carpenter Street- to the place of beginning; and with power also to lay out and construct a railway from the intersection of Fifteenth Street and Columbia Avenue to Ridge Avenue, .... and from Ridge Avenue along Master Street to Fifteenth Street, for the purpose of making connection with any company now authorized, or that may be hereafter authorized, to construct a railway on said Ridge Avenue.”
    By another section of the charter, other companies may connect with and use the complainants’ road, “ to complete their- circuit,” upon terms to be agreed upon between them, and failing that, the District Court shall fix the amount; and further, “ and provided that for the purpose of completing their circuit on the route hereby authorized, and on no other route, the said company shall have the right to run their cars upon any other passenger railway now incorporated, or that may hereafter be incorporated, in said city, upon such terms as are above provided for, in the ease of any other company using the road of the company hereby incorporated.” Under this charter, the complainants constructed their main line in 1859, running south on Thirteenth, west on Carpenter, north on Fifteenth streets, and east on Columbia Avenue.
    By an act of April 5th, 1870, the defendants were “authorized to continue and extend their track .... northward on Front Street to Columbia Avenue, thence westward along Columbia Avenue to Twenty-second Street, with the privilege to lay a double track on Columbia Avenue west of Seventh Street, thence southward along Twenty-second Street to Master Street, thence eastward along Master Street to Seventh Street.”
    November 9th, 1870, the complainants and defendants, “for their mutual accommodation, as well as to obviate the necessity of occupying the said avenue (Columbia) and the said street (Master) with several railroad tracks,” entered into an agreement, under the terms of which the said companies should “ jointly build, own, and use one railway track, to be laid in each said avenue and street.” This agreement provided, inter alia: “ Both parties hereto will run their cars eastward along Columbia Avenue, and westward along Master Street, unless prevented by competent authority; .... and if either party shall lay another track on said, streets, such party shall keep in order and repair three-fourths of the streets and tracks wherein such additional track is laid.....If the said Thirteenth and Fifteenth Streets Railway Company shall choose to abandon the use of said tracks, then the said Union Company will purchase their part of the same, at a price to be fixed by three persons, one of whom shall be selected by each party hereto, and the persons so selected shall choose a third.”
    From that time the two companies ran their respective carsaccording to the terms of the agreement. The defendants constructed another track upon Columbia Avenue, to the northward of the one owned in common, upon which they ran their cars westward.

      Held, that under their respective charters the complainants were entitled in reversing the direction of the running of their cars to connect with the defendants’ north trade on Columbia Avenue and run westward on it to Ridge Avenue; to construct and build a separate track on the south side of Master Street, to be operated eastward; and to remove and relay the joint track in use upon Master Street to and upon the north side of said street, they paying the costs and expenses of the construction and connections.
    2. The fact that complainants originally elected to run their cars in certain directions does not, at the suggestion of another corporation, bar them from diametrically reversing the order of their running.
    3. Nor in such a suit is the fact that complainants did not construct their branch track for eleven years after the date of their charter to be considered an abandonment by non user.

    4. Semble, that if complainants’ chartered rights had been affected by such non user, the effect of the agreement would have been, inter partes, to vitalize them.
    5. A railway corporation which accepts a charter, finding a previous railway corporation in possession of the streets, cannot, in equity, plead want of notice of the charter of its predecessor and the extent of its franchise.
    6. The agreement between the parties was one which, by its terms, could be rescinded upon notice.
    7. The jurisdiction of a court of equity in the case is not affected by the special legislation contained in the provisions of complainants’ eha-ter.
    8. North Branch P. R. W. Co. v. City P. R. W. Co., 2 Wr., 3C1, distinguished.

      Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 4, for Philadelphia County.

    Bill in equity aud amendments, filed by The Thirteenth and Fifteenth Streets Passenger Railway Company against The Union Passenger Railway Company, asking for a decree authorizing the complainants:
    I. To change their connection with the defendants' road at the intersection thereof, at Columbia Avenue and Thirteenth Street, from the south track thereof now running eastward to the north track thereof running westward, between said Thirteenth Street and the Ridge Avenue.
    II. To declare the right of the plaintiffs to construct a separate line of road on Master Street, running eastward from Ridge Avenue to Fifteenth Street, instead of westwardly, over a joint road as at present run, and thence southward.
    III. And comprising the above to enjoin the defendants from interfering with the plaintiffs in a reconstruction of their said road, whereby they propose to reverse the order of running their cars, and to run the same up Thirteenth Street to the defendants’ north track on Columbia Avenue; thence westward along and over the same to the Ridge Avenue; thence connecting with the Ridge Avenue road to Master Street; there to construct a new road on the south side of said Master Street to ■ run eastwardly to Fifteenth Street; and thence southwardly down Fifteenth Street, instead of up as heretofore.
    After answer, the case was referred to William Nelson West, as examiner, and subsequently to Pierce Archer, as master, with power to recommend a decree.
    The master found the facts as follows:
    The charter of the plaintiffs bears date April 8th, 1859, P. L., 429. It empowered them “to lay out and construct a railway from the intersection of Carpenter and Thirteenth streets; thence north along said Thirteenth Street to Columbia Avenue; thence west along said Columbia Avenue to Fifteenth Street; thence south along said Fifteenth Street to Carpenter Street; thence east along said Carpenter Street to the place of beginning; and with power also to lay out and construct a railway from the intersection of Fifteenth Street and Columbia Avenue to Ridge Avenue, .... and from Ridge Avenue along Master Street to Fifteenth Street, for the purpose of making connection with any company now authorized, or that may be hereafter authorized to construct a railway on said Ridge Avenue.”
    By the tenth section of this charter, other companies may connect with and use the plaintiffs’ road “to complete their circuit,” upon terms to be agreed upon between them, and failing that, the District Court of the county shall fix the amount; and further, “and provided that for the purpose of completing their circuit on the route hereby authorized, and on no other route, the said company shall have the right to run their cars upon any other passenger railway now incorporated, or that may hereafter be incorporated, in said city, upon such terms as are above provided for, in the case of any other company using the road of the company hereby incorporated.”
    Under this charter the plaintiffs, in 1859, constructed their main road on Thirteenth Street, running south; and on Carpenter Street west, and on Fifteenth Street, running north, and east along Columbia Avenue, soon after the date of their incorporation. The branch line on West Columbia Avenue and Master Street was not built at that time, nor until 1870.
    The charter of the defendants bears date April 8th, 1864, P. L., 297, five years after plaintiffs’ charter. By it they were authorized to build and construct their road over certain streets, not including those now in question. '1 he ninth section contained the usual clause authorizing connection with other roads. Under this charter defendants built their road, and operated it in other parts of the city.
    By an Act of April 5th, 1870, P. L., 929, eleven years after plaintiffs’ charter, the defendants were “authorized to continue and extend their track . . . northward on Front Street to Columbia Avenue; thence westward along Columbia Avenue to Ttventy-seeond Street, with the privilege to lay a double track on Columbia Avenue west of Seventh Street; thence southward along Twenty-second Street to Master Street; thence eastward along Master Street to Seventh Street; and the said company is authorized from time to time to extend and continue their track westward along Columbia Avenue and Master Street, and use any street west of Twenty-second Street to form a circuit,” etc.
    It thus appears that both plaintiffs and defendants, by acts of Assembly, were authorized to occupy the disputed streets for the purposes of railways; the plaintiffs by the Act of 1859, the defendants by an Act of 1870, eleven years later. It was then (1870) for the first time that the question was mooted between these two companies as to the right of way over these two highways. On the 9th of November, 1870, they entered into an agreement, which provided:
    “Whereas the said companies have each been authorized by the acts of the General Assembly of the Commonwealth of Pennsylvania incorporating them respectively, or by acts supplementary thereto, to lay passenger railway tracks on Columbia Avenue from Fifteenth Street to Ridge Avenue, and on Master Street to Ridge Avenue, or on parts thereof.
    “ And whereas the parties hereto for their mutual accommodation, as well as to obviate the necessity of occupying the said avenue and the said street with several railroad tracks, have made an arrangement by which both of the said companies may jointly build, own, and use one railway track to be laid in each said avenue and street.
    “Now this agreement witnesseth, that the said companies, for and in consideration of the covenants and stipulations hereinafter contained and mentioned, and in favor of each other respectively, to be kept, performed, and observed by the other party, do for themselves and their successors each to the other mutually promise and agree in manner following, that is to say :
    “ First. The Union Railway Company will build and lay a track on Columbia Avenue from Seventeenth Street to Ridge Avenue and on Master Street from Fifteenth Street to Ridge Avenue; when the same is finished and completed the Thirteenth and Fifteenth Streets Railway Company will pay one half of the actual cost of so building and laying tracks. And, as the said Thirteenth and Fifteenth Streets Company has already laid such track on Columbia Avenue from Fifteenth to Seventeenth Street, the actual cost of laying and building the same shall be deducted from the amount which the said Thirteenth and Fifteenth Streets Company are to pay to the Union Company for their share of the actual cost of building the tracks which the Union Company have herein agreed to build. The said Union Company agree to complete the said building and laying on or before the tenth day of December, 1870. The tracks so built and paid for shall be owned jointly by the parties. Any curves or turn-outs which either party may require shall be built by the party so requiring the same.
    “ Second. The single track on Columbia Avenue now belonging to and used by the Thirteenth and Fifteenth Streets Railway Company may be used by the Union Railway Company whenever it desires to do so, upon said last-named company paying to the former company half of the present value thereof, to be settled and paid when the mutual accounts referred to in this contract are adjusted. If the parties cannot agree upon this value, it shall be settled in the manner provided in the fifth item of this contract; when so paid for, said single track shall be jointly owned by both companies.
    “ Third. Each party hereto may run as many cars on the said tracks as they think fit. Cars shall be run on said tracks at a rate of not less than five miles per hour. No cars shall delay on the route, and no part of either of said tracks shall be used for a stand without the consent of both parties hereto. Both parties hereto will run their cars eastward along Columbia Avenue and westward along Master Street unless prevented by competent authority.
    “ Fourth. The said streets and tracks to be kept in order and repair as follows, namely: Each party hereto shall so keep in order and repair one equal half of each street and track, but if one of said parties shall exclusively use the said tracks, during such exclusive use such party shall keep the whole in repair. And if either party shall lay another track on said streets, such party shall keep in order and repair three-fourths of the streets and tracks wherein such additional track is laid.
    “ Fifth. If the said Thirteenth and Fifteenth Streets Railway Company shall choose to abandon the use of said tracks, then the said Union Company will purchase their part of the same at a price to be fixed by three persons, one of whom shall be selected by each party hereto, and the persons so selected shall choose a third. And if either of the parties hereto neglect to make such selection and appointment, then the other party may appoint the two, and they shall choose a third.”
    Under this agreement, and in accordance with its terms, the two corporations have continued to operate théir n spective cars over the now disputed railway route. The defendants constructed a track, to the northward of the one in common use, upon Columbia Avenue, on which their cars ran westward. On May 2d, T876, the plaintiff's, through their president, addressed to the defendants’president a letter asking : “ I desire to know from you whether you will allow our cars to run west over your track on Master Street, from Thirteenth to Fifteenth streets, upon our paying you a proper rental therefor, or such other compensation as you may fix upon, giving due security not to interfere in any way with the running of your own cars at this point.”
    This -was declined by defendants, by letter of May 5th, 1876, on the ground of the absence of a franchise in the plaintiffs, over these streets, from the Commonwealth.

      On June 22d, 1876, the plaintifts addressed the defendants as follows:
    “ As the Union Passenger Railway Company have declined, throughyour letter of May 5th, to allowus to runour cars over their two squares of track on Master Street, between Thirteenth and Fifteenth streets, and as we find it is necessary to run north on Thirteenth and south on Fifteenth Street, to accommodate the travelling public along our line, our board of directors have determined to run west on Columbia Avenue to Ridge Avenue, thence southeast to Master Street, and east on Master as far as Fifteenth, our company being authorized to run on all of these streets. In order to do this it will be necessary for us to run our cars west on the northernmost of the two tracks on Columbia Avenue, as you run west upon that track, and also to build a new track on Master Street, from Ridge Avenue to Fifteenth Street, which we propose doing. Please to let me know at what time I can make the necessary connections with your north track on Columbia Avenue, at the corners of Thirteenth Street and of Ridge Avenue, to run our cars on it instead of the south track which we are now using.”
    To this letter the defendants, on July 12th, 1876, replied, denying the claim of right, on the ground that a “ franchise has not been granted by the Commonwealth.”
    There was a difference of opinion among the citizens along the line of the roads as to the effect upon public convenience by the proposed change of direction, and the injury to private property said to be a probable result of placing two tracks on Master Street. The preponderance of opinion as to the service to the public by the proposed change of direction was in its favor; on the question of injury to private property on Master Street, opinions varied.
    The master reported, inter alia: “ It cannot be doubted that if the plaintifts had originally projected their road on the plan now desired, that no reasonable objection or question could have been made by any one, either as to the direction in which they should operate their cars on their main line, or as to the occupancy, in their own chartered right, of the branch line and streets their right to which is now disputed. The only curtailment of their absolute and exclusive use of these highways for railway purposes, is contained in section 10 of their charter, which subjects portions of their road to be used by other roads to make connections, ‘ to complete circuits,’ upon compensation being made, etc. Their right thus being vested by their charter, which they accepted and executed, and they having elected to run their cars in a certain direction over their road, and, as to a portion of it, not having immediately availed themselves of their chartered right to build their branch road to Eidge Avenue, via Columbia Avenue and Master Street, do, or do not, these facts operate to limit or control their grant of powers as -written in their charter ?
    “ As to the first objection, does the fact that they elected to run their cars north on Fifteenth, east on Columbia Avenue, south on Thirteenth, and west on Carpenter Street, now bar them from reversing the order of their running diametrically ? The defendants say it does, but cite no authority for the position.
    “ If the right was originally perfect to run as now proposed, it is difficult to see what act of commission or omission has operated to destroy it, particularly at the suggestion of any one but the sovereign, and then only in a proper proceeding for the purpose. So lately as Long’s Appeal, 6 Norris, 114, the trite doctrine of Dartmouth College v. Woodward, 4 Wheaton, 636, is re-announced for the thousandth time, and so long as contracts are upheld by courts, so long will charters, accepted and acted on, be protected and executed as contracts are. Nay, more, even in the case of an attempted repeal by the legislature, it still remains for adjudication judicially whether the casus fcederis has occurred : Commonwealth v. Pittsburgh and C. E. E., 8 P. F. Smith, 26; Hestonville Eailway v. City, Legal Intelligencer, 1879, p. 452.
    “ There is no limitation in the charter as to what way the cars shall run over the road; there can be no question as to its location being in accordance with its charter; and, even had it not been, none but the Commonwealth could call the company to account: Eailroad v. Speer, 6 Smith, 325. If it be, as is there said, that charters are to be liberally construed, that the right to alter or extend the road over specified routes is wholly in the discretion of the managers, and that it did not strip itself of its corporate power by the execution of it in a manner which it subsequently found it convenient or necessary to alter, then it would seem that there is but little to consider further as to this objection : 1 Eedfield on Eailways, 673; Abbott’s Digest, Corporations, 339, sec. 12.
    “ The other branch of this question was as to the effect upon their charter-right of their delay in building the branch on west Columbia Avenue and Master Street, which they did not build for eleven years after their charter, and then only in conjunction with the defendants. The only ground upon which this objection rests is that of abandonment by non user, which, if given effect in the present case, would be to declare void, pro tanto, in a collateral proceeding, a charter granted by the Commonwealth. This may not be done in a private suit, or at the instance of any one but the Commonwealth : Angelí and Ames on Corporations, 730, 731.
    “The cause of forfeiture must be judicially ascertained and declared in a proceeding directly against the company, so that it may have an opportunity to answer: Ibid., 746 ; Turnpike Co. v. McConaby, 16 B. & It., 140; Redfield on Railways, 547-8, note 6.
    “ But this very question has been passed upon judicially by the Supreme Court in the case of The Thirteenth and Fifteenth Streets Railway Company, plaintiffs in error, against the Ridge Avenue Company et al., 7 Phila. R., 620, and in that case the Union R. W. was also a party defendant. The same issue of law was there raised, that by the non user of the franchise for eleven years in not building the road and making the same connections with the Ridge Avenue Road under their charter, that the plaintiffs had abandoned and forfeited their right. On a bill for injunction at nisi prius, an injunction was granted in favor of the Ridge Avenue Road, to prevent the connection by plaintiffs with their road. The ground of the decision below was “ upon the failure within a reasonable time to exercise the right of election,” and its non-exercise. The cause was removed to the Supreme Court, and there the judgment below was reversed, and the injunction dissolved: see Writ of Error, January Term, 1871, No. 19, MS. No opinion was delivered.
    “Upon the reversal above referred to, the plaintiffs here, under their .contract with the Union Road, of November 9th, 1870, went on and made the connection with the Ridge Avenue Road, and have since been operating the line without disturbance or molestation. It is apparent, then, upon this branch of the case, that there would be no equity in adjudging in this proceeding that there was a partial forfeiture of the charter of the plaintiffs by reason of non user for the period of eleven years. If, indeed, in a case presented by the proper party, it appeared that after a lapse of time sufficient to presume abandonment, the chartered rights of other grantees of the Commonwealth were being affected by a resuscitation of the dead charter of the plaintiffs, then, pei’haps, a chancellor might hesitate to protect the derelict corporation which had not asserted or exercised its written powers for the public benefit. But this is not such a case ; rather the reverse, for here the agreement referred to has practically vitalized the charter, if it ever needed it, so far at least as it affects the parties to the contract by a full recognition of the plaintiffs’ status.

      “ It is to be remembered that this voluntary contract leaves both parties free to resume their original antecedent position. It gives to the plaintiff, when it ‘ chooses/ the right of withdrawal, and carefully defines the terms upon which either may withdraw from the joint use of the tracks. Surely it estops either party from pleading it as a waiver of right, or cause of forfeiture, during its recognized existence.
    “That this contract between the two companies was not ultra vires is abundantly shown by the case of the Uestonville, Mantua and Eairmount Passenger Railway Company v. The City of Philadelphia, Legal Intelligencer, 1879, p. 452, the most, recent adjudication on several of the points of the present controversy. In that case, the Ilestonville Company was formed by the merger with it of ‘ The Eairmount Passenger Railroad Company/ and ‘The Eairmount and Arch Street Passenger Railway Company/ and the three were consolidated under the Act of May 16th, 1861, Purdon, 1222. One of the questions raised, and elaborately argued and considered in that case was, whether the Act of 1861, ‘ relating to railroad companies/ applied to city passenger ‘railways/ authorizing consolidation of ‘railroads/ and it was decided most broadly in the affirmative. The effect of this decision on this point, it may be remarked in passing, is to make all appropriate legislation referring to ‘ railroads ’ equally applicable to all kinds of city passenger ‘railways’ or ‘railroads/ and, therefore, it brings in operation, in the present .case, the Act of 17th Eebruary, 1870 (Pui’don, 1233, pi. 107), making it ‘lawful for any railroad company, or companies, created by the laws of this Commonwealth, from time to time to lease other roads, or enter into any other contract with any other railroad company, on such terms and conditions as may be agreed upon/ etc. It follows, then, that the agreement of November 7th, 1870, in the case in hand, was executed in conformity to this act of Assembly, and is authorized by its terms, it not being violative of any condition of either company’s charter.
    * * * =!= X % *

    “The statutory mode of procedure under the Act of April 1st, 1870, fob adjudication of forfeiture of chartered rights at the suit of the attorney-general, upon the suggestion of any party whose rights or interests are affected, is ample (Purdon’s Digest, 293, pi. 66), while the special proceedings, on injunction, authorized by the Act of 19th June, 1871 (Purdon, 288, sec. 39), to determine ‘ whether any such corporation does in fact possess the right or franchise at the suit of any person or corporation having an interest,’ remains fully open as a remedy to any aggrieved corporation.

      “ But the ease of The Hestonville, Mantua and Fairmount Passenger Railway Company v. The City, supra, is conclusive with the master upon this question of forfeiture by non user or abandonment.
    * if * ??€ % íjí
    “ It was said by Trunkey, J., in the case cited, that the charter ‘ required no continuous use of a double track, on pain of forfeiture of the right;’ and the same may be said with as much, if not more force here, where, as it would appear, the streets were not so far opened and completed on the branch road,at the date of incorporation, as to permit of the permanent construction of the tramway thereon.
    “In the argument, the case of The North Branch Passenger Railway Company v. The Philadelphia Passenger Railway Company, 2 Wright, 361, was also strongly relied on by the defendants, in connection with their argument of non user, as authority to show that the grant of power, in section 10 of plaintiff's’ charter, to connect with roads thereafter to be constructed, was a mere legislative promise of á thing not in esse. Strong-, J., dissented. The case, in the opinion of the master, does not rule the present; the facts are radically different. In that case the injunction was refused, because the defendants’ charter was a grant exclusively of certain specified streets, just the reverse of the present, where the grant to the plaintiff is of the specified streets in question, which was not the case of the plaintiff in 2 Wright; again, in that case, there being no specific grant of the'streets to the plaintiff, but an exclusive grant to the defendant, the legislative permission to connect with any subsequently chartered road was a mere legislative license, revocable and revoked by the legislature erecting the new corporation, and giving it exclusive occupancy of its highway : R. R. v. City, 11 Wright, 324; E. and N. E. R. v. Casey, 2 Casey, 287; Packer v. Sunbury and Erie R. R., 7 IL, 211.
    * * * * * * *
    “Third. Having, then, considered the questions of non-user and reversal of the direction of running plaintiffs’ cars, with reference to the powers contained in their charter, the master is of opinion with the plaintiffs on both of these points of controversy. How, then, does it stand upon the defendants’ supplement to their charter granted in 1870, eleven years after? They -were incorporated 8th April, 1864 (P. L., 800), were required to conform to the gauge of other roads, and were authorized to cross or connect with any other road. In 1870 (P. L., 929), they were authorized to extend their road to the territory occupied by the plaintiffs, more than a mile from defendants’ originally chartered line. At this time (1870), the plaintiffs had built and operated for years a single track on Columbia Avenue, from Fifteenth to Thirteenth streets. Under their charter the defendants were authorized to run over this track, after arranging as to compensation, the power being given for the purpose ‘ of completing a route or making a circuit.’ Whether this piece of road fell within that description it is not necessary for the master to inquire. It is important only as an existing fact of occupancy of a portion of the road now in dispute, for the purpose of bringing home to the defendants notice of the charter of the plaintiffs in its whole extent as affecting the disputed streets prior to the charter and amended charter of the defendants. A corporatiomwhich accepts a charter, finding a previous corporation on the ground in possession, cannot in equity plead ignorance that they had not actual notice of the charter of their predecessor and the extent of their franchise before making improvements on the strength of their own subsequent charter: City v. Railway, 2 W. N. C., 283.
    “ Indeed, a strong argument might be made to this effect from the ninth section of defendants’ supplemental charter of 1864, giving the right of extension over the streets in question, because of the provision therein for the purchase by them of one-half the track of the prior companies, presumably the plaintiffs’.
    “lhe defendants are, therefore, to be regarded as accepting their charter with full notice of the plaintiffs’ franchise, and are to be held to whatever consequences flow from that knowledge and notice; and principal among these is that, prior to the vesting of their franchise, the plaintiffs had acquired valuable rights, subject to which the defendants had accepted their charter, which even the legislature itself could not annul, unless “in such manner, however, that no injustice shall be done to the corporators:” Constitution, 1838; article I., section 26.
    “Fourth. But it was further pressed, on behalf of the de- • fendants, that whatever the status of the plaintiffs had been, or whatsoever their rights were under their charter, that by the agreement of November 9th, 1870, the respective rights of both companies were determined and defined as therein provided; and that they are mutually bound to their covenants therein contained, as much so as if it had been originally prescribed in their respective charters of incorporation.
    “ Waiving the question as to how far .the board of directors of a corporation can, without the consent of the stockholders, surrender any valuable part of its franchise, even for a consideration (Angelí and Ames on Corporations, 233), it becomes necessary to consider the scope and effect of this agreement.
    “As we have already seen, it recited, by way of preamble, that each company had been authorized to lay passenger tracks,etc.,’ on the streets in question; that, for ‘mutual accommodation,’ and ‘ to obviate the necessity of several tracks ’ on the same street, that an ‘ arrangement had been made to jointly build, own, and use one railway track in each avenue and street.’ Then followed the agreement to equally pay the cost of construction and repairs of road and streets, and to run the cars jointly.west on Master Street,, and east on Columbia Avenue. If either company exclusively used the tracks, then it was to pay all repairs of road and streets. If either shall lay another track ’ on said streets, such party shall keep in order and repair thi'eefourths of such street and track, and if the Thirteenth and Fifteenth Streets Company shall choose to abandon the use of said tracks, then the Union Company will purchase and pay for their part thereof.
    “ It will be remembered that this agreement was made pending the litigation of plaintiffs with the Ridge Avenue Company, heretofore adverted to ; that the plaintiffs had already, as it recites, actually constructed the road on Columbia Avenue, from Fifteenth to Seventeenth streets, besides the two squares in use on that avenue between Thirteenth and Fifteenth streets for years by them, and which the defendants proposed to use, paying one-half cost thereof.
    “The agreement is a very clear and perspicuous document, and to the mind of the master, was provisional in its truest sense, and not meant by either party to be permanent or declaratory of their ultimate corporate rights. In its every line, almost, it recites its own temporary nature, and provides for its own dissolution as a contract, at the will of either party. Its object is declared to be ‘ mutual accommodation ’ and avoidance of a multiplicity of tracks on the same street. An equality of interest is admitted, and the right of the plaintiffs to ‘choose to abandon’ the joint occupancy, to be compensated for their share of construction and ‘ lay another track on said streets,’ is expressly recoguized in terms in paragraphs 3 and 4, and upon either party exclusively using the track, they shall keep the whole in repair, and upon laying a separate additional track, keep three-fourths of the streets and track in repair.
    “To say that this agreement is perpetual and binding on both parties without limit is to contradict its express language, which declares otherwise. While it is to be favorably construed and upheld as a treaty of peace’ yet it leaves both parties equally free at any time, with or without cause, and according to their own judgment, to dissolve the joint relation as to the occupancy of the highways in question.
    “ Jt does not even require a prescribed term of notice of an election to withdraw from the compact, and when, by the letters of the plaintiffs to defendants, of May 2d and June ■22d, 1876, they informed them of their intention to change the running of their cars and to build a new track on Master Street, it was the most unmistakable notice of intended abandonment that possibly could be given, and, being within the reserved powers of the contracting parties, the binding force of the covenants was at an end. It is plain, therefore, that neither party is longer bound by the contract as to joint occupancy, since the election of a competent party to rescind it, and notice thereof has been duly given and received. So long as it existed, doubtless, the charter rights of the parties were inter partes suspended, at least so far as a chancellor would interfere to enforce them, but now that the contract is annulled, they are relegated to their respective rights, which are to be determined upon their written charters, which have already been considered.
    “ Fifth. A remaining argument, made for the defendants, was: ‘ That, inasmuch as the charter of the plaintiffs, section 10, provides that, if the parties cannot agree, then the District Court shall appoint three persons, who shall fix the amount to be paid to the parties owning said roadthat, therefore, a special jurisdiction is created, where resort must first be had, and the remedy there sought, and not in a court of equity.
    “This argument would have controlling force in a proper case, but it is conceived that this is not that ease. It is not the case described in the act of a new company desiring ‘to connect with’ another already constructed and operated road, authorized by its charter to negotiate with an old corporation, for compensation, for a legalized invasion of its road-bed and track, in common with ‘ the parties owning said road ;’ the rather it is a contract between two companies having similar chartered rights to the same territory, agreeing to construct a new road at their joint equal cost, for their joint common use ; the older, plaintiffs’ company, contributing its already constructed road on Columbia Avenue, from Thirteenth to Seventeenth streets, at its cost price, for the common use. It was not, as plaintiffs’ charter terms it, a case where the new company ‘ shall have the right to run their cars upon any other passenger railway,’ but it was the case of a company consenting to use its franchise and road partly built jointly with another newly organized company, upon terms of equality as to cost of the old road, and the new extension contemplated.
    “ When this agreement was made the Union road had no passenger rail way built or constructed on this route, over which plaintiffs could claim to ‘ have the right to run their cars.’ On the contrary, it was ‘to be built and owned’ •by the plaintiffs and defendants jointly, so that in no sense could the plaintiffs have petitioned the District Court to appoint three persons to fix the amount ‘ to be paid to the parties owning said road.’
    “ They were owners- themselves, and as soon as built, they were seised as tenants in common per tout, and, therefore, could not petition to pay themselves.
    “ But even if this were not so, the argument would still be with the plaintiffs, for, clearly, when in answer to the letters of the plaintiffs, of May 2d and June 22d, the defendants, in their two answers of May Gth and June 6th, 1876, squarely planted themselves ‘ upon the absence of a franchise (to the plaintiffs) granted by the Commonwealth,’ and not upon a disagreement as to ‘ terms to be agreed on by the parties,’ then the special jurisdiction of the District Court never had an existence, for the occasion never happened to give it birth. A repudiation of all right to the ‘ franchise ’ operated to dispense with any negotiation as to ‘ terms,’ upon the same principle that an agreement to arbitrate as to amount is waived by a total denial of performance : Mentz v. Insurance Company, 29 Smith, 478.
    “ It follows, then, that,in the view of the master, the jurisdiction in equity is not affected by the special legislation referred to. The right being denied in toto, that must first be adjudicated, for how can the ‘parties interested, agree upon •terms ’ so long as one of them refuses to accept any terms ? When the question of right is settled, then, if necessary, but not before, can the question of terms properly arise for consideration. It was hinted, but not pressed on argument, that the contract of November 9th, 1870, was an execution of the power given to the companies as to the joint use of the tracks, and undoubtedly there would be much force in this, and equity would leave the parties where they placed themselves, if the contract itself had not left it optional to either, at their own will, with or without or against reason, to dissolve the contract, and withdraw from occupation under it, and a chancellor would be loath, indeed, to exercise the powers now invoked, had their right to withdraw not been mutually and expressly reserved by both parties. As was said by Thayer, J., in Railroad v. Railroad, 2 W. N. C., 286, in a similar case: ‘ If, however, the plaintiff shall refuse to adjust the matter in an amicable manner, or if the parties should be unable to come to any agreement, the Court will not hesitate, upon a proper bill being filed, to exercise the equity powers which give them complete control over the subject.’
    “ And thus it is here — the defendants deny the franchise of the plaintiffs, the provisional agreement is at an end, as has been seen, and the parties are relegated.to their respective corporate rights under their charters. In such a case equity will take jurisdiction 'independently of its special powers as to corporations under the Act of 1836.
    “ The disposition of this argument leads to a judgment by the master, upon the bill, answer, and proofs, in favor of the plaintiffs.
    “Should the view entertained by the master be finally approved, the result will be a system of almost continuous alternate lines as to direction north and south ; whereas, at present the lines in proximity do not alternate. Thus, if the change proposed by this decree is accomplished, the lines running on streets northward, in the populous sections of the city, will be Third, Fifth, Eighth, Eleventh, Thirteenth, Sixteenth, Eighteenth, etc., and southward, Second, Fourth, Sixth, Seventh, Tenth, Twelfth, Fifteenth, Seventeenth, etc. Upon the argument of public accommodation and convenience, this result has considerable force, yet it should not control the decision as to vested legal rights under written franchises, if the case was otherwise against the right to change.”
    The master recommended a decree in accordance with, these findings. The defendants filed exceptions to his report, which the Court below, Elcock, J., dismissed, saying, inter alia:

    “ It will thus be seen that this agreement was entered into for some temporary purpose, and contemplates, without ambiguity, independent action as to the construction of additional tracks by either party. It is, therefore, difficult to see why objection is made by defendant to the proposed action of the plaintiff. Their rights are equal over both streets, and no question of forfeiture of any right can arise (vide the case of Thirteenth and Fifteenth Streets Rail-way Company v. The Ridge Avenue Railway Company, 7 Phila., 620). The business of the company defendant is not interfered with, nor can they be compelled to contribute anything to the expense of the alteration. For do we see any other mode by which the plaintiff can effect a change of its route, for its corporate rights do not extend to running a track from Thirteenth Street west to Fifteenth Street on Master Street, by which, it has been argued, the plaintiff might effect a connection, and thus continue to run west on Master and east on Columbia Avenue. The right, therefore, sought by plaintiff appears to be reserved in the agreement, which, if it had otherwise granted away for a good consideration, would be binding upon it.
    “ It must be recollected that the present controversy is to determine the right simply as between the two companies. What right the city of Philadelphia may have to prevent such proposed construction without the consent of its councils does not arise in this case, and cannot now be determined.
    "The right of the parties thus standing as if one company had laid its track upon Master Street, it is argued that the plaintiff has no right to move, shift, or relay the present track, or build a new track on Master Street, without the consent of the defendant.
    “ But this question has so lately been before this Court, in the casemf The Continental Railway Company v. The Union Railway Company, 83 Legal. Int., 43, and received such elaborate discussion in the opinion of our learned President judge, both as to the rights of the companies and the powers of a court of equity over the subject, that any further examination of the subject is entirely unnecessary. Courts of equity are essential to adjust such rights between corporations.
    “ The present case is so fully and ably considered in the report of the learned master, that we are entirely safe in affirming all his findings, and in making the decree he reports, save in one particular, viz., the amount to be paid by the defendant for plaintiff's interest in the abandoned Master Street track. This must be determined in accordance with Section V. of the agreement between the parties, of November 9th, 1870.”
    The Court then made the following decree:
    “ It is now ordered, adjudged, and decreed: .
    “ 1. That the plaintiffs have right to run their cars from Carpenter Street northward on Thirteenth Street to Columbia Avenue, there to connect with the defendant’s north track and run westward to the Ridge Avenue, and thence along Ridge Avenue to Master Street, and there to erect, construct and build a separate track, of uniform gauge, not nearer than five feet on the south rail from the south curb of said Master Street, to be operated eastward; and thence along said Master Street to Fifteenth Street, there connecting with their road; to run their said cars southward on said Fifteenth Street, and eastward on Carpenter Street to the place of beginning at Thirteenth Street. ■
    “ 2. That all the costs and expense of said construction and connections are. to be paid by the said plaintiff.
    “3. That the plaintiff have the right to remove, shift, relay, and rebuild the said joint track, now in use on Master Street, to the north side of said Master Street, the north rail thereof not to be nearer the north curb-line than five feet.
    ■ “ 4. That the amount to be paid by defendant to plaintiff for its interest in the track abandoned by it upon Master Street shall be fixed and determined by three persons, one of whom shall be selected by each party, and the persons so selected shall choose a third. And if either of the parties neglect to make such selection and appointment, then the other party may appoint the two, and they shall choose a third.
    “ 5. That if the parties cannot amicably agree upon the amount to be paid by the plaintiff to the defendant for any other loss or injury done to it by the disturbance of its road in the course of reconstruction, it shall be determined by Pierce Archer, Esq., to whom the motion is referred as examiner, to take testimony and report his views thereon, and the amount to be paid.
    " 6. And it is further ordered, that the costs of this suit be equally divided between the plaintiff' and defendant.”
    From this decree the defendant appealed, assigning as errors that the Court erred in dismissing the exceptions to the report of the master, setting forth that he erred:
    1. In holding that the plaintiff' corporation has any right to run its cars over the tracks of the defendant corporation without the consent of the latter.
    2. In holding that there is any jurisdiction in a court of equity to compel defendant corporation to change the running of cars on its own tracks. ■
    3. In holding that this contract, a copy whereof is annexed to the answer, does not conclude the right of property in the tracks on Columbia Avenue, and the running-direction of cars by both corporations on Columbia Avenue and on Master Street.
    4. In reporting that plaintiff has a right to connect with the north track of defendant on Columbia Avenue and run westwardly thereon to Ridge Avenue.
    5. In reporting that plaintiff' can lay any additional rail on Master Street without the consent of the city of Philadelphia,

      6. And that the Court erred in not dismissing plaintiff’s bill.

      D. W. Sellers, for appellant.
    The claim of the plaintiff that it can run its cars over the track of the defendant, because of the provision in its charter authorizing it to complete its circuit, has been expressly decided otherwise by this court: North Branch Pass. B. W. Co. v. City Pass. B. W. Co., 2 Wr., 361.
    The right to run cars on its own tracks belongs exclusively to the grantee holding the franchise, where no burden is expressed in the charter: Citizeus’ Coach Co. v. Camden Horse B. B. Co., 33 N. J. Equity Bep., 267.
    The decree gives the property of a private corporation to another for private purposes.
    There is no equitable ground of jurisdiction unless there be clear legal rights in each on the same roadway.
    The contract recites that each of the corporations is authorized to lay tracks on Columbia Avenue, and that both of the said companies have made an agreement to “jointly build, own and use one railway track.” Under this contract, each was the owner of a moiety of the south track. The one on the north was built wholly by the Union, and until now exclusively used by it. As each according to the contract had the right to lay a several track, why is not the consideration therein expressed for the one railway track to be jointly owned and used, “ that it was for their mutual accommodation as -well as to obviate the necessity of occupying the said avenue with several railroad tracks,” valid and conclusive ?
    The contract further provides for the contingency of the abandonment of the use of the tracks by the plaintiff corporation, which is, “ then the said Union Company will purchase their part of the same at a price to be fixed by three persons, one of whom shall be selected by each party.” If therefore the present bill is to be regarded as an abandonment of the use of the track jointly owned, why does not the above provision operate ?
    The right of connection and running (if yet opened notwithstanding the contract) is wholly governed by the clauses in the several charters providing for final and conclusive action by the District Court, following a disagreement of the corporations.
    It is suggested that the defendant cannot assert the want of power,"under see. 9, art. 17, of the constitution, of the plaintiff to lay an additional rail on Master Street. The Act of June 19th, 1871, and the decisions in Lejee v. Continental Railway, 10 Phila., 362, and Edgewood Railroad Appeal, 29 P. F. Smith, 257, confer on the defendant corporation the right to ask if plaintiff possesses the franchise on Master Street without the consent of the city of Philadelphia.

      George Biddle and George W. Biddle, for the appellees.
    The charter of the complainants clearly gives them power either to construct the railway upon Columbia Avenue themselves, or to' run their cars on any railway there constructed hy any other company. The complainants have not lost this right by non-user.
    The case of North Branch Pass. R. W. Co. v. City Pass. R. W. Co., 2 Wr., 361, only decides that a license to run on the tracks of another company is revocable by the legislature. In this case the license has not been revoked. By the adoption of a single track on Columbia Avenue and Master Street, the complainants did not forfeit the right thereafter to change the number and location of their tracks: Railway Co. v. The City, 8 Norris, 210.
    The agreement by its very terms contemplates that an end may be put to it at any time by the complainants.
    No agreement of a permanent character can be made by a board of directors binding the company of which they are officers, and also future boards, to deal with their corporate property in any particular way, where the corporate property in question is of a public character, and the directors are bound to use it to the best advantage of the public: Green’s Brice’s Ultra Vires, p. 327.
    No dispute as to terms has arisen, and consequently the objection to the jurisdiction of a court of chancery has no force in this stage of the cause: Union P. R. W. Co. v. Continental P. R. W. Co., 2 W. N. C., 286.-
    January 23d, 1882.
   — Per Curiam :

We affirm this decree upon the report of the learned master in the Court below.

Decree affirmed and appeal dismissed at the costs of the 'appellants.