Evening journal., 1897-05-17

track at the crossing OF Thiru street
and eight lines at its crossing of
Fourth street.
That the business and traffic necessi-
tates the passage of about forty-fve
passenger trains north and fifty pas
senger trains south, and of about thir
ty-three freight trains north and south
every twenty-four hours over said
crossings.
That the necessary local shifting of
cars and trains over said crossings
cause the passage of about three hun
dred and fifty trains or parts of trains
every twenty-four hours so that the
total average passage of trains or parts
thereof, over said crossings does not
fall short of four hundred and seventy
five during every twenty-four hours.
And this crowding Of its right of
way at the Third and Fourth streets
crossings, and the consequent dangers
and difficulties attending the use OF
Third and Fourth streets as public
highways is urged by complainant's
counsel as in itself a reason for the eX-
ercise of the extraordinary powers of
the Court Of Chancery and the grant
ing Of an injunction in this case.
The only cases cited, however, that
could by any construction support
such a contention, are under Pennsyl-
vania statutes, expressly investing the
courts with special powers to prevent
grade crossings.
In the case of the Pennsylvania
Railroad Company, appellant, VS..
Braddock Electric Railway Company,
152 Pa. St., page 1875, the court recites
the Pennsylvania statute as follows:
/ - n IN.
crossings of lines of railroads by other
railroads, it should be the duty of the
courts of equity of this commonwealth
to ascertain and define by their decree,
the mode of such crossing which will in
fict the least practical injury upon the
rights of the company owning the
road intended TO be crossed; and If in
the judgment of such court it is rea-
sonably practicable to avoid a grade
crossing they shall by their process
prevent a crossing at grade"
But in this state there is no such leg
islation. The powers of the Court Of
Chancery and the rules governing its
action in this behalf have not been ex-
tended or modified by any general leg
islatiOn and l am not aware of any
| principle in law or equity in accord
| ance with which the difficulties and
| dangers attending the use OF Third
and Fourth streets as public highways
at the points where they are crossed
by the complainant which are caused
by hemultiplication of the complain
ants tracks and trains-by its in
creased use of it's right of way-could
be considered by the Court of Chancery
as a reason for enjoining any use oil
the streets across the complainant
right of way. which is a Legitimate
use Of those highways and not an ad'
: ditional servitude or easement.
There are cases indeed, in which
under city ordinances, the writ of man
damus has been issued to compel {
steam railroad company to elevate ol
depress it's tracks when its increased
use Of its right of way had obstructe'
] or materially impaired the public us
y of a highway; but l am not aware o
any case, except as we have seen unde
. special statutes. in which the crossini
} by a street railway at grade of a rail
roads right of way across an existing
|, highway. was ever enjOined by cour
of equity on the ground that the grea
I volume of the railroad company's traf
: fc. the number of its trains at suci
crossing, rendered the crossing danger
4 Gus.
The remedy for such dangers mus
be sought elsewhere and in a differen
! mode.
4 1t is conceded by complainant
counsel that the overwhelming weigh
of authority in this country has estah
y lished the principle that what is ordl
!, narily known as a street railway is no
9 an additional burden to that of tn
general easement of the public in tn
s street or highway and they submit I
), the weight of authority on this poin
= 1t is not necessary, therefore, to cit
- the authorities or to consider the fore
D of their reasoning. The whole subJeC
y is satisfactorily discussed by the chan
d cellor of New Jersey in the case OF IN
h West Jersey Railroad Company VI
d Camden. &c. Railway Company, 81 ,
= J. Eu. page 80, where he says IN cor
d clusiOn: "Basing their conclusion upO
s the contemplation of the customar
h use of the electric street railway, IN
h courts have regarded, that, as operate
e bv the trolley system, it is not an a'
ditional burden upon the soil in IN
l. common highway" and he cites
l. number of important cases in conh
p nation and illustration.
S, THE chancellor then further say
r speaking of railroad cros
l. ing similar to the one no
rs under operation: "The exercise
)r the right to cross does not of necessii
3. exclude the public from the enjoymei
a of the highway at the point of crossin
er further than to permit the lawful ope
r alton of the railroad. The hign rate
speed and the dangerous character
We the trains run over the crossiI
a. necessitate that, in the operation OF /
railroad. the complainant shall ha'
ed the right of way, to be exercised IN
IL cordance with the requirement OF la'
lis and imposes the duty upon the publ
in the use of the highway, as the RAJ
n. road crossing is approached to stop
he necessary in the exercise of due car
We look and listen, in order that the rig
a of the railroad may be safely accord
on to il. But there Is nothing in the rig
C. which otherwise limits the use OF q
highway by the public or restricts q
nv increase of the volume OF that us
in either in the manner originally exc
o. cised or through conveniences whi
IT, invention may from time TO time pr