McGinity v. McGinity, 63 Pa. 42, McKee's App., 104 Pa. 571, McKeehan v. Wilson, 53 Pa. 74, McKinney v. Brown, 130 Pa. 365, McLean v. Finley, 2 P. & W. 97, McMullen v. Orr, 8 Phila. 342, Metzler's Road, 62 Pa. 151, TABLE OF CASES CITED. Mackin v. U. S., 119 U. S. 348, McDermott v. Miners Savings Bank, 100 McFadden v. Com., 23 Pa. 12, McGinley v. McDonough, 27 W. N. C. 340, xi PAGE. 158 5 5 121 156 130 166 164 56 151 123 54 152 166 164 122 69 73, 192, 8 201 Raudenbusch's Case, 120 Pa. 329, 200 Ray v. Alexander, 146 Pa. 242, Reber's App., 125 Pa. 20, 44 54 147 204 178 Real Estate Co. v. Roop, 132 Pa. 496, Richards v. Richards, 37 Pa. 225, 188 123 Right v. Ringler, 1 C. C. R. 156, Riggs v. Johnson Co., 6 Wall. 166, 178 175 132 Risk's App., 52 Pa. 269, 201 Road Commissioners v. Flickinger, 51 55 Pa. 48, 178 123 Road in Hazel, 6 Kulp 463, 20 Miller v. Oestrich, 157 Pa. 268, 143 Road in Newlin, 2 Ch. Co. Rep. 373, Robins v. Quinliven, 79 Pa. 333. Robinson v. The Allegheny & Gt. West 166 55 Miltenberger v. Com., 14 Pa. 71, 151 ern Railway Co., 66 Pa. 160, 176 Miners' National Bank's App., 57 Pa. 193 127 Rockey's Estate, 155 Pa. 456, 152 Minter's App., 40 Pa. 111, 32 Roger's Estate, 131 Pa 382, 60 Minnich v. McDonald, 3 Lan. Law Re Rolland v. Com., 82 Pa. 306, ΙΟ Ross v. Duvall, 13 Pet. 45, 175 Mishler v. Com., 62 Pa. 55, 114 Rozelle v. Rhodes, 116 Pa. 129, 191 Royer v. Bank, 83 Pa. 248, 159 Monroe v. Monroe, 93 Pa. 520, 136 Rupp v. Eberly, 79 Pa. 141, 200 Morrison v. Truby, 145 Pa. 540, 54 Russel's Ap., 34 Pa. 258, 147 York Legal Record. 1851, and located and constructed its COMMON PLEAS. Baltimore and Harrisburg RailwayCo. v. Hanover and McSherrystown S. R. Co. Equity-Injunction-Grade Crossings. On the hearing of a motion to dissolve a special injunction ex parte athidavits tiled after answer filed and in contradiction of it are admissible. railroad from the borough of Gettysburg in Adams county, to the borough of Hanover, in York county, in 1856, 1857 and 1858 and commenced to operate the same with trains through from Gettysburg, to a connection with The Hanover Branchi Railroad in Hanover, in December, 1858. 24 That the Hanover and McSherystown Street Railway Company is a corporation purporting to be organized under the Act of Assembly of May 13th, 1889, for the purpose of locating, constructing and operating a tailway be tween Hanover, in York county and MeSherrystown, in Adams county, but whe Plaintiff company procured an injunction to restrain defendant company from erecting grade crossings over its tracks alleging that they would prove dangerous to the traveling public. Defendant replied that other crossings were im- ther it possesses such a franchise your practicable, and that the danger was not as great orator is not informed. as alleged. On a motion to dissolve the preliminary injunction, HELD, That the motion will be refused, and the injunction continued in force until the final hearing. The Act of June 19, 1871, relative to railroad crossings, is applicable to street railways. It imposes on the Courts, in determining such a case as this, a threefold duty: 1st, to ascertain the mode of crossing which will least injure the company whose road is to be crossed; 2nd, to compel by its decree the adoption of that mode; 3rd, to prevent by its process a crossing at grade if any other be reasonably practicable. Such a decree can only be intelligently made at the final hearinn upon the report of an examiner and Master, where all the facts are be fore the Court. On the admitted facts in this case the jurisdiction is plain and the plaintiff is ciearly entitled to a decree affording at least a measure of relief and protection, of the full benefit of which it will be deprived, unless the status quo is preserved until final hearing. In such case the proper practice has always been to continue the injunction in force. Motion to dissolve injunction. lows: To the Honorable the Judges of said Court: Ist. 34. That your orator is operating its Said railroad daily, with three regular passenger trains and two regular fieight trains each way, and almost daily about eight extra freight trains, and in the Summer season very many heavy exeursion trains. 4th. That your orator is informed and believes that the said Street Railway Company has located and is about to commence the construction for the purpose of operating its railway across the track of your orator at a grade in two points, one in the Borough of Hanover and the other in Penn Township, York county. The first alleged crossing is in a cut about seven feet in depth and on a curve which prevents the view of or by approaching trains, and on a sixty foot grade and is 2162 feet from the station in Hanover. The other crossing is about 1700 feet further west and at the latter point your orator has three tracks. That your orator's trains run at full speed at these points. That there is no necessity of a grade crossing over the railroad of your orator by the Street Railway, at either of these points, or indeed at any othThat McSherrys town, the objective point of said railway can be reached more conveniently without crossing your orator's tracks. The Baltimore and Harrisburg Railway Company, complainant above named, is a corporation created under an Act of Assembly of the Commonwealth er point on its lines. of Pennsylvania, authorizing consolidation of railroads, and its immediate constituents were The Hanover Junction, Your orator avers that a grade crossHanover and Gettsburg Railroad. The Bachman Valley Railroad and the Balti ing, if allowed at either of the points inmore and Hanover Railroad; and the con- dicated, would be a death-trap, and stituents of the Hanover Junction, Han should not be tolerated or permitted to It would be creating a danger to over and Gettsburg Railroad were the exist. Susquehanna. Gettysburg and Potomac the public which would inevitably result Railroad and the Hanover Branch Rail in accident and loss of life. road; and The Susquehanna, Gettysburg 5th. Your orators notified defendant and Potomac Railroad was organized by that a grade crossing at the points indithe purchase of the Gettysburg Railroad cated would be resisted by legal proceedat a judicial sale, which last named cor- ings, and received for a reply that they poration was incorporated March 24th, intended to commence work at these points at once, and intended to cross at grade. Your orator further avers that no engineering or other necessity exists for crossing its lines of railroad at grade as proposed, and that it is entirely practicable to avoid such a grade crossing. appliances used in the operation of said railroad at the points where the defendant's proposed grade crossings are to be made. That plaintiff has no right of property use, or occupation in said railroad at the points where the proposed grade crossThat the Western Maryland Railway Company is the owner of the property and franchises aforesaid, and is in possession of, and operating said railroad at the proposed points, of crossing the same by defendant, as the latter is informed and believes and expects to be able to prove to the Court at the final hearing of this case. Wherefore your orator has need of relief as follows: That the defendant, its officers, agents and workmen be restrain-gs are to be made. ed by the order and injunction of this honorable court from entering upon and crossing your orator's railroad tracks and right of way at grade, at or near the points herein indicated, and as shown on the accompanying plot, or in any manner entering on or interfering with your orator's railroad tracks or right of way, for the purpose of making any such crossing or crossings, or operating or using That such injunction be spe cial until final hearing, and final there after as may be requisite to protect your orator in the enjoyment of its rights in respect to the free and safe use and op eration of its railroad. A. W. EICHELBERGER, President of the Baltimore and Harris 2d. That the Hanover and McSherrystown Street Railway Company is a corporation duly organized and incorporated under the laws of this Commonwealth, and under the Act of Assembly of May 13th, 1889, for the purpose of locating, constructing and operating a street railway between the Borough of Hanover, York County, Pennsylvania, and the Borough of McSherrystown, Adams County Pennsylvania, and through the intermeburg Railway Company diate points designated in its charter and The defendant's answer is as follows: that the points named in plaintiff's bill The defendant, the Hanover and Me at which grade crossings of said railroad Sherrystown Street Railway Company, tracks are proposed, are upon the line of by John C. Tanger, its President, in an- the route of said defendant's railway as swer to the complaint of the Baltimore designated in defendant's charter. That and Harrisburg Railway Company as set, said proposed eastern grade crossing reforth in its Bill in Equity, No. 2 August ferred to in plaintiff's bill is within the Term. 1893, being duly sworn according limits of the Borough of Hanover and a to law. deposes and says: right of way at said point was duly Ordinance of over, and that a right of way at said between said eastern and said western point, and over the intervening ground proposed crossings, was granted said company defendant by C. E. Elrehart, and Aaron Hostetter, the owners of said intervening ground. Ist. That defendant has no knowledge granted defendant by an or information of the truth of the facts the Borough of Hanover, passed on the set forth in paragraph 1st, of plaintiff's 29th day of October, A. D. 1892, and bill relating to the incorporation of the the western proposed grade crossing is at Company plaintiff, or the several alleged a point outside of said Borough of Hansales and proceedings whereby it therein claims to have acquired title to the prop erty and franchises set forth in said bill. Defendant does not admit the truth of any of said allegations and ask that the plaintiff be required to prove the same. Defendant denies that the plaintiff company is the owner of the railway, That the right of way at and from the roadbed and tracks or the right of way said western proposed crossing, westand franchises connected therewith, au- ward, through and over the ground of thorizing the use and operation of said the Hanover Improvement Company, by railroad at the points where defendant the streets therein known Maple proposes to cross said railroad tracks Avenue." "Commerce Street," "Linden designated in plaintiff's bill. Avenue" and "Elm Avenue" to a point as Neither is the plaintiff the owner of at the Public Road leading from Hanover the rolling stock, trains, cars, engines or to New Oxford was granted the company all intermediate points, the eastern proposed crossing is visible to the engineer and fireman of all trains. That said eastern crossing and all the intervening distance between it and said Union Station is in the Borough limits of the Borough of Hanover, wherein trains are by ordinance legally forbidden to run at a higher rate of speed than six miles per hour in crossing streets in said Borough: and that there are two streets to be crossed between said Union Depot and said proposed eastern crossing. defendant by the said Hanover Improve- That the trains going westward start ment Company, the owners of the land, from the Union Station at Hanover, from in due form of law. That the right of which point, at a distance of two thousway at and from said Elm Avenue to and two hundred (2200) feet and from North Street in the Borough of McSherrystown, westward, over the public road leading from Hanover to New Oxford, was granted the company defendant by the Supervisors of Conewago Township, Adams County, in due form of law, and that the right of way over and through the Borough of McSherrystown from the public road leading from Hanover to New Oxford, was duly granted said company defendant, by ordinance of said borough passed the 14th day of February, 1893. Defendant avers that the right of way over and through, and the necessary use and occupation of, the streets, highways and properties, along the route of its said street railway, as set out and pro vided for in its said charter has been granted to it in due form of law, and that it is in possession of the same, and was, at and before the time of the filing of the plaintiff's said bill. That the eastern proposed crossing is located at the same point where McSherrystown Street (which for a long distance runs parallel with said railroad and at its side) crosses said railroad at grade, and connects with High Street, both of which streets are public streets in said Borough of Hanover, and have been for many years. Defendant further avers that a grade 31. Defendant denies the allegations | contained in paragraph 3d of plaintiff's crossing already exists, and for many bill, and in answer thereto avers that it years has existed for the use of the pubis the Western Maryland Railway, and lic, at the point where the said eastern not the Baltimore and Harrisburg Rail Crossing by defendant is proposed. That way, that is operating said road. the proposed grade crossing by defendant will not increase or add to the dangers of crossing at grade by the public at said goint. On the contrary it will greatly widen and improve said crossing on both sides of said railroad tracks at the point where McSherrystown Street crosses said tracks, and where defendant proposes to cross the same, whereby the dangers of crossing will be reduced to a minimum, and the approaches to said crossing will be made plainly visible to trains running either way on said tracks. 4th. Defendant admits that it proposes to cross the railroad tracks, and 1oadbed, of a certain railway at the points indicated in paragraph 4 of the plaintiff's bill. Defendant specifically denies the plaintiff's allegation that the first alleged crossing is in a cut about seven feet in depth and on a curve which prevents the view of or by approaching trains:" and avers that neither said cut nor curve prevents the view of or by approaching trains. That defendant in constructing its said track, and the approaches to the said Defendant further denies that plain proposed grade crossing, will 'cut down tiff's trains run at full speed at said the embankment immediately adjoining points of proposed grade crossings, and the said railroad tracks at the point of avers that there is a grade of sixty (60) crossing, from its present height of six feet to the mile in the railroad at said, and one-half feet to a level with said points to be overcome by trains going tracks, and will continue its said cutting eastward, and that the same cannot, and westward along the inside of said curve in point of fact do not run at full speed to a point three hundred feet westward going eastward; the freight trains especially going at a slow rate of speed and of said proposed grade crossing, by a surmounting said grade with great diffi- graduated ascent to the surface at said culty, as they approach said proposed last mentioned point. crossing. The defendant will also grade and cut |