Opinion,
Me. Justice Paxson:This bill was filed in the court below to restrain proceedings under the act of 2d June, 1887, P. L. 306, to condemn a section of the Frankford & Oxford Turnpike Road. The only object and effect of such proceedings was to free the road from tolls, and open it to public travel, as in the case of other country roads. In May, 1872, the appellant company purchased the portion of the turnpike referred to for the purpose of using it as a right of way upon which to lay its tracks in approaching the city of Philadelphia. No track has ever been laid, but by virtue of an amendment to its charter, passed in 1873, the railroad company has continued the use of the road as a turnpike, and has been collecting tolls thereon. The court below refused to grant the preliminary injunction, and subsequently, the defendants having filed a demurrer, sustained the demurrer, and dismissed the bill.
The plaintiffs contend that the act of 1887 does not apply to this case; that it was never in the contemplation of the framers of that act that under it. the right of way of a railroad company should be condemned and taken for public use ; they say the piece of turnpike road in question is the only route by which they can complete their road to its contemplated terminus within the city, without an expense which will be so great as practically to exclude them altogether, and, that, as before *98stated, they acquired this particular property for that sole purpose.
The answer to this is that they hold this portion of the road in a dual character: first, as a railroad company for the purpose of laying down its tracks thereon; and second, as a turnpike company for the purpose of collecting tolls. It is only as to the use last stated that these proceedings are directed. The petitioners are not seeking to interfere with the right of the company to extend its track over the road, nor could such a proceeding be entertained under the act of 1887. We think the appellants are needlessly alarmed at the effect of the action of the petitioners. It can result only in making it a free road until such time as the appellants are ready to lay down their tracks, when, if they show a legal right to so appropriate the road, it is difficult to see how this proceeding can affect them. It concerns them only in their capacity of turnpike owners, and it has been repeatedly held that turnpikes, that is to say, the right to collect tolls, may be taken for public use upon compensation being made. This is all there is in this case, and we think the court below did not err in sustaining the demurrer and dismissing the bill.
The decree is affirmed, and the appeal dismissed at the costs of the appellants.