Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-06-30
RIGHTS OF RAILWAYS
Operated by Electricity to Occupy
City Streets Legally Decided.
THE DUQUESNE CAN PUSH AHEAD
And Abutting Property Owners Cannot
Throw Obstacles in Its Way,
POLES AND WIRES ARE NOT NUIsANCEs

The decision rendered by Judge Stowe on
Saturday, in favor of the Duquesne Traction
Company, in the suit for an Injunction
brought against that company by Negley
avenue property owners, is full of interest.
1t states the law as to the rights OF abutters
and the rights of the public with such full
ness that we give it below In full. Only a
brief synopsis OF it has yet been published.
This is supposed to end all attempts at OBJ.
structing the Duquesne, which is now
making rapid progress, and will be running
cars early next fall.
Lockhart ct al vs. The Craig Street Railway
Company and the Duquesne Traction Com
pany.
Plaintiffs bill AYERS in SO tar as is material to
this application: That the plaintiffs are sever
ally property owners of land abutting upon
Negley avenue in the city of Pittsburg.
That said avenue is an improved street of said
city, paved only within the last year with a
smooth asphalt pavement paid for by plaintiffs
and other abutting property owners at a cost OF
some SlS2 600. and that the same was paved
with the said asphalt pavement with view and
for the purpose of diminishing the noises and
annoyances arising from travel on the same,
and to increase the value of their lands on said
been to greatly increase the value of said
lands
That the Craig Street Railway Company
claims to have the right to enter upon and con.
struct a street railway along and upon said
Negley avenue from the intersection thereof
with Roup street to the intersection thereof
with Bryant street. and thence returning with
q double track on Negley avenue to said inter
section with Roup street.
That said Craig Street Railway Company
threatens aud proposes 20 at once enter upon
Negley avenue to construct, maintain and
operate a street railway with two tracks, etc.
and to run thereon cars
PROPELLED BY ELECTRICITY
as a motive power and for that purpose to tear
up and destroy said pavement and to replace
the same with an inferior block pavement, and
TO erect along the lines of said street In the
properties Of plaintiffs line of poles on each
side of said street, and to suspend wires from
said poles across the carriage way of said street.
and upon such poles to suspend a wire over
each of the tracks running lengthwise of said
street
That such poles will be erected in such prop
critics as defendants may elect at or about the
curb lines of said street at the height of about
Is feet and about 75 feet apart and the tracks
line and that said poles and tracks will be a
continual trespass upon said properties and a
serious obstruction to the passage of said
street; that it will deprive said plaintiffs of easy
and convenient access to the street from their
properties and prevent the use of their re-
spective properties under the improvement of
said street, etc., etc.
That the running of cars along said tracks by
the use OF electricity will deprive plaintiffs of
the quiet which thev have heretofore enjoyed,
and which makes their properties especially
valuable for purposes of residences and will
greatly damage and depreclate the value of the
same.
PLAINTIFFS ALSO AVER
that the Duquesne Traction Company has
made or is about to make an agreement and
lease Of some kind for the construction and
operation of said passenger railway. and that
Councils pretended to give by ordinance the
right to enter upon said Negley avenue and
make and construct thereon such motors
cables, eIsctr5caI and other appliances, neces-
sary and convenient mechanical fixtures, as
said company may at any time select and also
TO lease the property, right and franchises of
said Craig Street Railway Company and to
construct and operate the railway of said COM
Plaintiffs also aver that certain other cor
poration. named the Negley Avenue Passenger
Street Railway Company has been incorpor-
sted to lay street railway along Negley ave-
nue. between the streets aforesaid, and that
its charter existed before and at the
date Of the incorporation of said defendant.
1t is also averred that the act under which
the Craig Street Railway Company is incorpo-
rated forbids the construction of any railway
incorporated Hereunder within the limits
of any CITY, etc., without the consent of
the local authorities thereof and that the City
of Pittsburg has no authority to assent to or
authorize any person or corporation to enter
upon, use or occupy SAID street except such
consent or authority be expressed by general
ordinances and that the said defendants do
not possess the authority of the city expressed
by general ordinance.
Also, that the act of May Il, 1889 under which
the Craig Street Railway Company is incorpo-
rated, is unconstitutional in that it does not
provide a method or remedy whereby plaintiffs
may compel defendants to secure compensa-
tion to them in advance; and also, that the act
of 22d of March, 1857, under which the Du-
quesne Traction Company is incorporated,
does not empower it to take property of plain
tiff to its use, or If it does, then that it is un-
constitutional.
And finally that neither Of said defendants
have any right or power by virtue of their
railway over Negley avenue in the manner
threatened by them.
THE QUESTIONS RAISED
by the bill. answer and affidavits are all merged
in one inquiry, to wit: Have defendants, or
either of them. shown the legal right to con-
struct operate and maintain a railway on
Negley avenue as proposed by them?
This involves the proper Interpretation of
defendants charters. the constitutionality of
the acts under which they were granted, and
the validity of the ordinances of the city of
Pittsburg granting them the right to build and
operate the road in question.
1t cannot be doubted at this day that the
Legislature Of Pennsylvania has the power to
authorize the incorporation Of companies with
power TO build and operate railways with horses
"
and consent of the authorities of said cities as
provided by section 9, of article IL of the con-
etitution.
And it is too late to say that such use and oc-
cuDatlon Of the streets impose such an addi-
tiOnal burden or Servitade thereon as renders
1t necessary to provide for compensation there
for to the owners of abutting property. Nor
can it be successfully urged thai the proper
municipal authorities may not at their discre-
tion, repair, improve and change the pave
ments put down by the city whenever il NAV he
done without any additional cost or expense to
the city or property owner, so far at least as IL
NAV be of usual and ordinary character The
thorties seems to be absolute so long as IT'S ex-
ercise is not inconsistent with their ordinary
use and does not take, injure or destroy the
property OF adjoining owners.
RIGHTS OF THE CITY
Therefore do not think that the fact that
the plaintiffs secured the paving of a street
from the city for which they paid in the ordi-
nary way by assessment. took away any right
the city had to repair or change the pavement
or grade of the street, to exercise over it the
same power it has over any other street or alley
in the city. There can be no doubt that under
proper charter the city had a right to allow
the streets TO be so used for a street railway,
with horses as motive power. So far :he
ssreet use proper is concerned there is no sub
ssantal dlnerence between the tracks of such
2 street railway and one operated by electricity.
We may then assume that the occupation of
the street with track, Intermediate paving and
operated by horses, there i nothing of which