from crossing its tracks. Where both have received grants to construct their lines in the streets of a municipality and have complied with all the requirements of the statute and terms of the grant, they stand on an equal footing, so far as their rights to use the streets are concerned, and a claim by the earlier company that its consent as an abutting owner is necessary to enable such other company to cross its tracks at grade, will not be sustained. Where a company has constructed tracks in the streets, and possibly apparatus for the operation of its road, it thereby acquires certain property rights in such track and apparatus, and the above rule should not be so extended as to confer the right to cross tracks of another company without reference to the fact of materially impairing the operation of such company's road. But, though any of the methods of crossing, which the safety and convenience of the public require, may involve interference with the wires of the other company and necessitate a joint use of tracks and wires at such crossing, this will not entitle the other company to compensation.2 Where such crossing could not be made a subject of agreement between the companies or has not been satisfactorily adjusted by municipal regulation and control, the courts would probably, where it materially impaired the rights of the company earlier in its occupation, restrain the construction of such crossing until some agreement had been reached by the companies, or the municipal authorities had, in the exercise of their power over streets, regulated and prescribed the mode of crossing. § 406. Nature of right of railroad in street it crosses.- The right which a steam railroad obtains in a street or highway which it crosses is merely a right to construct its tracks across the same and operate its road thereon, the street or highway still being subject to any and all the lawful uses to which it may be put; and the fact that a railroad has been granted the right to construct a crossing at grade confers, as a general rule, no greater rights in the street than is possessed by the individual traveler, or by a corporation authorized by the state to 1 Scranton & P. Traction Co. v. Delware & H. Canal Co., 1 Super. Ct. (Penn.) 409. 2 Consolidated Tract. Co. v. South Orange & M. Tract. Co., 56 N. J. Eq. 569, 40 Atl. 15. law to cross the tracks of a steam railroad at grade, using such safeguards as were prescribed by statute, in such cases, the court refused to grant an injunction or to order different safeguards from those prescribed by law. The court said: "Under our general equity powers, conferred by the Public Statutes, chapter 151, section 4, we are of opinion, that when a street railway corporation is constructing its road, in accordance with the powers conferred upon it by its charter, ford R. Co. v. Bridgeport Tract. Co., 65 Conn. 410, 32 Atl. 953, 5 Am. Elec. Cas. 246. The court said: "The legislature has deemed it proper to allow the construction of electric railways in certain streets of the city of Bridgeport. In full view of the danger attending a grade crossing of the plaintiff's by the defendants' road on Fairfield avenue, it has deemed it for the public interest to permit its construction; and it was no more bound to provide for compensation to the plaintiff for the injury it may suffer than to provide for it in favor of any individual who may have occasion to cross defendants' tracks at the hazard of a possible collision with its cars. The plaintiff took the risk of suffering such an inconvenience or peril when it elected to build its road over Fairfield avenue at grade. Such a crossing in the center of a busy city was a source of danger before the defendants' charter was granted. The defendants' charter does not create a danger so much as increase a danger; and as it is one incident to the lawful use of the highway, the plaintiff suffers nothing which it should not have contemplated as possible when it made its original location, and nothing to which such a location did not necessarily make it subject. The impairment of its prop erty, the interference with the accustomed and necessary operation of its road, and the danger to the lives of those whom it transports. presents simply a case of damnum absque injuria," per Baldwin, J. This action was in the nature of an injunction to restrain an elec tric railway from crossing the tracks of a steam railway at grade, it being claimed that it interfered with the operation of the road and endangered the lives of its passengers. It appeared that there had been compliance with the laws of the State in acquiring the right to construct a street railway, and that in the exercise of the police power the State had prescribed and regulated the manner of crossing the tracks, which the street railway company had accepted, and proposed to act in accordance with. The injunction was refused. See also Chicago & Calumet Terminal Ry Co. v. Whiting, Hammond & East Chicago St. R. Co., 139 Ind. 297, 38 N. E. 604, 5 Am. Elec. Cas. 247; Penn. R. Co. v. Suburban Rap. Trans. Co. (Allegheny Co. Com. Pl., 1892), 1 Penn. Dist. Rep. 636, 4 Am. Elec. Cas. 250. 8 Old Colony R. Co. v. Rockland & Abingdon St. Ry. Co., 161 Mass. 416, 37 N. E. 370, 5 Am. Elec. Cas. 233. 9 Per Lathrop, J. over a location granted to it by the selectmen of a town, and is using or intending to use the safeguards pointed out by the statutes of the Commonwealth, we have no power to say that it must use other and different safeguards. The whole subjectmatter is regulated by the legislature. Our duty is merely to see that the law is complied with, and not to interfere, unless either the Constitution or the law requires us to do so." In Pennsylvania, however, it has been held that, where such a crossing would be exceedingly dangerous, an injunction will be granted to restrain its construction, under power conferred on the court by statute, to regulate grade crossings and to prevent them, where readily practicable.10 If, however, a street railway should attempt to construct its line across that of the steam railroad, without proper authority for such act, not only might it be restrained in an action by the state, but the railroad company might also avail itself of the same remedy, by reason of the duty which it owes to the state, to maintain its road at such crossing in uninterrupted use under safe conditions.11 § 409. Electric railway crossing steam railroad-Must construct line so as not to interfere with operation of railroad.— An electric railway in crossing the tracks of a steam railroad should so construct its line as not to impair or materially interfere with the operation of the steam railway. While the latter in constructing its tracks across a street or highway obtains such right subject to the easement of the public therein, and to the proper and legitimate uses to which such street or highway may be put, yet it is entitled, having constructed its line, relying upon its grant of grant of power so to do, to the rights granted by its 10 Penn. R. Co. v. Braddock Elec. Ry. Co., 152 Penn. St. 116, 25 Atl. 785. In this case it appeared that the crossing at the point proposed would seriously interfere with plaintiff's signal system and that an overhead crossing could be constructed at a street only a short distance away and at small cost. It had been held in the court below that authorization to street railway "to cross at grade" any railroad authorized it to construct such crossing. But it was held in the Supreme Court that this right was subject to the power conferred on the court in reference to grade crossings. But see Penn. R. Co. v. Suburban Rapid Trans. Co. (Allegheny Co., Penn. Com. Pleas, 1892), 1 Penn. Dist. Rep. 636. 11 New York, New Haven & Hartford R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 5 Am. Elec. Cas. 249, 32 Atl. 953, per Baldwin, J. " 12 franchise, and should not be obstructed in the proper and necessary operation and maintenance of its system. The fact that a street railway is a proper street use will not entitle it to so construct its line across the tracks of a steam railroad as to substantially interfere with or obstruct the latter in the enjoy ment of the foregoing rights. It has been said by the court in a case in Connecticut, that a steam railroad "holds its right of way, charged with the performance of a public trust for its continuous use for public accommodation. Its railroad is a great avenue of communication, between one part of the State and another, and between this and other states. Any impediment to its safe and proper use is a matter of public concern, not to be measured by money or dealt with on the footing of a claim for damages.' So, where it is proposed to construct an overhead trolley across the tracks of a steam railroad, the wires should be suspended at sufficient height to permit the free operation of the railroad. 13 And where the proper authorities have prescribed the minimum height at which trolley wires shall be suspended at grade crossings, and such height is reasonable and necessary for the proper operation of the railroad and the safety of its employees, the wires should be suspended at the height required. If suspended at a less height it is held that the railroad company may cut and remove them.14 In prescribing the height at which wires are to be suspended in such cases, it is held that the authorities have no arbitrary power to fix the height in the absence of any showing that a less height is insufficient to prevent any danger to the employees of the railroad.1 A street railway company will not, however, be liable for an injury sustained by an employee of the railroad company as a result of a contact with its wires while on top of a railway car 12 New York, New Haven & Hartford R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 5 Am. Elec. Cas. 248, 32 Atl. 953, per Baldwin, J. 13 Erslew v. New Orleans, etc., Co., 49 La. Ann. 86, 21 So. 153; Saginaw Union St. Ry. Co. V. Michigan Central R. Co., 91 Mich. 657, 4 Am. Elec. Cas. 243, 52 N. W. 49; West Jersey R. Co. v. Camden, Gloucester & Woodbury Ry. Co., 52 N. J. Eq. 31, 5 Am. Elec. Cas. 137, 29 Atl. 423; Morris & 14 Saginaw Union St. Ry Co. v. Michigan Central R. Co., 91 Mich. 657, 52 N. W. 49, 4 Am. Elec. Cas. 243. 15 Saginaw Union St. Ry. Co. v. Michigan Central R. Co., 91 Mich. 657, 52 N. W. 49, 4 Am. Elec. Cas. 243. where the person injured was guilty of contributory negligence, though the street railway company may have been negligent in permitting its wires to be suspended too low.16 § 410. Electric railway crossing tracks of railroad — Subject to rules governing travelers. A street railway, however, though duly authorized to cross a steam railway at grade, is subject to the same requirement as other travelers. Its right to use the street at such point for crossing the tracks is to be exercised in conformity with the requirements which the railroad right of way imposes upon all travelers, that is of stopping and, if necessary, looking, listening and yielding the right of way.17 17 § 410a. Electric street railway- Crossing bridge over railroad tracks. Where the crossing of a highway by the tracks of a steam railroad through a cut render the bridging of the cut necessary, such bridge becomes a part of the highway. And in such a case the railroad company is not an abutting land-owner within the meaning of a rule of law that an electric railway upon a country highway constitutes an additional servitude upon the fee which cannot be imposed upon it against the will of the owner of the land." 18 § 410b. Application to define mode of crossing - Must show authority. In New Jersey, where an application is made to a court of chancery to define the mode in which one railroad may cross another, it must be shown by the petitioner that it has the requisite authority and right to construct its road. So it was decided that such an application should be dismissed where it did not appear that the petitioners' right to construct the road was complete, in that it failed to show a consent of frontage property owners under the statute of 1896 sufficient to clothe the township committee with jurisdiction to pass the ordinance granting permission for the construction of such line.19 16 Danville Street Car Co. V. Watkins, 97 Va. 713, 34 S. E. 884. 17 West Jeresey R. Co. v. Camden, Gloucester & Woodbury Ry. Co., 52 N. J. Eq. 31, 29 Atl. 423, 5 Am. Elec. Cas. 145. 18 North Pennsylvania R. Co. v. Inland Traction Co., 205 Pa. St. 579, 55 Atl. 774. 19 Mercer County Traction Co. v. United New Jersey R. & C. Co., (N. J. 1905), 61 Atl. 461. |