The opinion of the court was delivered, January 7th 1868, by
Agnew, J.This is an action of tort against the railroad company for wrongfully erecting and continuing two switches on Preble street, in the borough of Manchester, opposite the dwelling-house of the plaintiff, the plaintiff claiming special damage from the penetration of his house by noisome smells and volumes of smoke.
It is to be noticed that the declaration does not allege, and the proof did not show, any negligence or abuse in the manner of constructing or of using the switches. The court reserved this question — “ Whether the company under its charter and the action of the borough authorities, or either, had the right to construct, maintain and use the switches complained of?”
The court below gave no reasons for its decision, but having entered a judgment against the railroad company on the reserved point, in effect decided against the right to build its road where it did, for the right to build the switches and sidings there, is as clear under the charter as to build the main track.
There are but two grounds upon which the authority of the company seems to be denied: First, that it had no right to extend its road to the city of Pittsburg; second, that it had no right to locate it on Preble street, a public highway of the borough of Manchester.
The right to extend its road to Pittsburg cannot be doubted. The purpose of the Ohio charter is plain upon its face. The name given to the company was the Cleveland and Pittsburg Railroad Company, thus clearly indicating Pittsburg as its eastern terminus. Not having the power to authorize the building of the road to Pittsburg, the Ohio legislature, in order to invite the co-operation of Pennsylvania, empowered the company to build its road from Cleveland to some point in the direction of Pittsburg, on the state line between Ohio and Pennsylvania. Responding to this invitation to co-operate, the Pennsylvania legislature in 1853 adopted the Ohio charter in all its length and breadth, and authorized the company to extend its railroad into this state from the point where it may cross the west line of the state, and to continue it up the valley of the Ohio river, and connect with any railroads running in the direction of or terminating in Pittsburg. This language derives force and meaning from the previous Act of 1850. At first the Pennsylvania legislature did not close with the offer of Ohio, and merely authorized *332the company to extend its road from the state line to the mouth of the Big Beaver, and there to connect with the Ohio and Pennsylvania Railroad. But the Act of 1853 accepted the Ohio proposition by adopting its charter and repealing the Act of 1850, thus removing the impediment of the advance of the road up the Ohio valley to Pittsburg. Thus the two states clasped hands upon the project, the purpose of which is as clear as sunlight, of building a railroad from the city of Cleveland, on Lake Erie in the state of Ohio, to the city of Pittsburg in Pennsylvania, the terminus of the Central Pennsylvania Railroad, furnishing by this means a continuous communication between Lake Erie and the Atlantic Ocean.
The rule given to us for the interpretation of such a charter is found in the opinion of Gibson, C. J., in Brockett v. Ohio and Pennsylvania Railroad Co., 2 Harris 244: “The joint act of incorporation (says he) is not only a contract with the company, but a compact between the states that are parties to it.” * * “ The charter is not to be compared with the charter from an individual state; it is to be liberally construed with reference to the magnitude of the enterprise by giving the company the necessary means to accomplish the purposes of its creation. Like a treaty, it is the law of the contracting states without being subject to interpretation by the local usages of either. The same construction of it must be made in both.”
Looking at the language giving the authority to extend into Pennsylvania, conjointly with the evident purpose of the treaty between the states of making a grand route of inter-communication betweert the two important cities named as the termini, we find that the authority to connect with other railroads is not single, but plural — it is to connect with any railroads,running in the direction of, or terminating in, Pittsburg. But if there were any doubt of the meaning of the Act of 1853, it is removed by the Act of 1862. It revived and renewed the charter, and extended for ten years the time for constructing and completing the road from Rochester, in Beaver county, into the city of Pitts-burg. This was both an interpretation and a recognition of the authority to extend the road into Pittsburg.
Having the clear right to extend the road into the city of Pitts-burg, it was a matter wholly in the discretion of the president and directors of the company where the work should begin: Commonwealth v. Franklin Canal Co., 9 Harris 127.
This brings us to the second question — the right of the company to use Preble street for its road. It does not admit of a doubt, in this state, that a railroad company may use a public street or highway when authorized by its charter expressly or inferentially: Philadelphia and Trenton Railroad, 6 Whart. 43, 44; Mifflin v. Railroad Co., 4 Harris 192, 193 ; Commonwealth *333v. Erie and N. E. Railroad Co., 3 Casey 354. Although the power is not expressly given in this charter, the implication is irresistible. The authority given is to continue the road up the valley of the Ohio river to Pittsburg. Being restricted to the valley, it must necessarily pass through the borough of Manchester, which stands across the .whole valley.
The power of the company to adopt any one of the streets of that borough passing through it, will now be seen more distinctly by examining the special provisions of the charter.
• The 11th section authorizes “ the corporation to construct a double or single track railroad on the most direct and least expensive route,” and the 12th section invests the president and directors, in the execution of this power, with all rights and powers necessary for the location, construction and repair of said road, not exceeding one hundred feet wide, with as many sets of tracks as the said president and directors may deem necessary.” And they may enter upon and use and excavate any land which may he wanted for the site" of said road, and for any other purpose necessary and useful in the construction and repair of said road or its works.” The phrase “ any land” has received an interpretation in the case of Brockett v. Ohio and Pennsylvania Railroad Co., supra.
In that case no ‘special necessity was shown for taking a dwelling-house, but the case was rested ■ wholly upon the discretion which it was held must necessarily be exercised by the company in selecting the best route for its road. Land was therefore held to have its common law and technical meaning as comprehending all structures upon its surface. Granting the power then to pass through the houses and lots of Manchester, yet no one can deny that it is far less expensive, and certainly not half so injurious to the citizens, to use one of the streets of that borough to pass through. Here, then, is a full power to enter upon any land, whatever may be its superincumbent structures; and certainly the surface of a street is not more sacred than the dwellings of the people. This action was brought in 1866, while this part of the railroad was located in 1857, built immediately and has been in use ever since. Having been thus located and built, and not only without objection, but with the actual consent of the borough authorities, we are bound to presume, until the contrary is shown in due course of law, that the location on and along Preble street was a judicious and proper location, by the “ most direct and least expensive route,” according to the terms of the charter. As a matter of fact, indeed, we know that it is so. We refer now to its terminus in the city of Pittsburg with the Pennsylvania Central Railroad at Duquesne Point, where it might then have connected in the exercise of the discretion clearly conferred.
But assuming that Preble street might not be the most direct *334route, and least expensive location, how can the plaintiff, in this collateral way, review or revise the exercise of the discretion given to the company after its location and construction of the road at this point has become complete, and it has been in the enjoyment of its franchises upon this ground for years ? Having a general authority to build its road up the valley of the Ohio, and consequently through Manchester, which traverses its route, and having a general authority also to enter upon any lands wanted for the site of its road, with all the rights and powers necessary for its location and construction, it exercised the power of eminent domain belonging to the sovereignty of the state, by the selection of Preble street for this location, built its road thereupon, and has long been in its daily use for its public purposes. Clearly the use it now makes of the street is a part of its franchise. It is a liberty granted by the sovereign to its subject, in which the latter cannot now be disturbed except by the sovereign power. The location of the route, the act on which its franchise rests, and without which the franchise falls, was done under a general authority, and in the exercise of a discretion conferred. To revise and attempt to correct the location, is to interrupt and destroy the franchise itself; and clearly this does not belong to individual right. The act of location was not void, and if voidable because other ground ought to have been taken, none but the Commonwealth can now call the company to account for it.
Whatever private remedies individuals might have had to prevent the location there, and to compel a change of site before consummation, it is now too late to treat the location as a mere nullity ; and yet this is the effect of the judgment of the court below. Without entering into a discussion of the authorities, I think the principle asserted will be found to be fully sustained by the following: Clarke v. Bridge Co., 5 Wright 147 ; Cleveland, P. & A. Railroad Co. v. City of Erie, 3 Casey 387; Bridge Co. v. Kirk, 10 Wright 130; Murphy v. Farmers’ Bank, 8 Harris 419 ; New York and Erie Railroad v. Young, 9 Casey 175, 182; Plymouth Railroad Co. v. Colwell, 3 Wright 341; 2 Kent Com. 312; Ridge Turnpike Co. v. Stoever, 6 W. & S. 378; Dugan v. Bridge Co., 3 Casey 313; Philadelphia, Wilmington and Baltimore Railroad Co. v. Williams and Wife, decided at Philadelphia, January 7th 1867, 4 P. F. Smith 103. No action at common law will lie for one who has sustained a private injury by the execution of legal powers exercised judiciously and carefully. This principle is well sustained by the authorities collected in the note to 1 American Railway Cases 166. Another form of stating the same principle is to be found in the cases of this state, wherein it is said that canal and railway companies are not liable for consequential damages in the exercise of the power of eminent *335domain under the authority of the state: 9 Casey 180 ; 4 Harris 193 ; 8 W. & S. 86.
To exercise a franchise is to use a part of the public rights of the state, and is to be called in question only at the instance of the public. To be a corporation is itself a franchise: 2 Kent Com. 267; 3 Kent Com. 459; 8 Harris 419; and it is well settled that the only competent evidence to prove a forfeiture of charter is the judgment of a court directly on the point: Irvine v. Lumberman’s Bank, 2 W. & S. 203; 4 Angell & Ames on Corporations, ed. 1843, p. 507 ; Dyer v. Walker, 4 Wright 157 ; Turnpike Co. v. McConaby, 16 S. & R. 140.
The power of the company to run its road to Pittsburg, and to locate and construct it on Preble street, being established, it carries with it the authority to make and maintain the switches which are the direct subject of this action. By the express words of this charter, the power is conferred of making as many sets of tracks as are deemed necessary. But if this were not expressed, it is clearly to he inferred from the general powers conferred, and the essential purposes of the grant. A power to build side tracks, is essential to the purpose and use of the road. A power to build a railroad of a single track, without the means of passing the trains or of leaving the track for the shifting of ears, or of repairs at the shops and yards, and without standing-room for the cars not in motion, would be clearly wanting in all that is necessary to safety, convenience and utility, and would be vain and nugatory. This point was determined in the case of Philadelphia, Wilmington and Baltimore Railroad Co. v. Williams and Wife, already cited. The essential powers of a corporation may be inferred, as well as expressed: Ridge Turnpike Co. v. Stoever, 2 W. & S. 548; Clarke v. Bridge Co., 5 Wright 157; Linton v. Bridge Co., 1 Grant 414.
A switch is but.a mechanical contrivance or movable opening, to pass the cars from one track to another. The right to side tracks for standing-room, or to pass from the main track to the shops or yards of the company, being clearly given, the spot where the openings in the main tracks should be placed falls within the absolute discretion of the company, and cannot be readjudged by a private citizen who lives along the line of the road. . It was the right of the company, therefore, to place their switches above or below Walnut street. If, in a spirit of accommodation, the company was willing for the time being to confine itself to the south side of Walnut street, it did not thereby strip itself of the power of going north of it when it found it necessary to lengthen the curve of its side tracks, in order to reach its shop and yards in safety. Nor have we any power in this action to say, because it owned the ground on which its engine-house stood, that it should have located the house further from Walnut street, and *336thus lengthened the course; and located the switches further south. This belonged to its discretion, and cannot now be reviewed;
Upon the whole case the action cannot be sustained, and the judgment is therefore reversed, and judgment now given for the defendants on the reserved question non obstante veredicto.