Opinion by
Me. Justice Elkin,Some confusion arises in the consideration of the questions *281here involved because of changed conditions since the preliminary injunction was granted. In 1903 when the bill was filed the street railway company could not construct its lines upon the highway without the consent of abutting landowners. The consent of the complainant was not obtained and he stood upon his legal rights in asking a court of equity to restrain the threatened invasion. The restraining order was issued and the whole matter remained in statu quo for several years. The street railway company secured the consents of the other abutting property owners along the highway, made a jog in its line so as to avoid the property of appellee, laid its tracks and for several years has operated its lines with the approval of the supervisors and of the people very generally. In 1907 street railway companies were given the right of eminent domain, and in order to exercise this power, it became necessary to have the injunction dissolved. At the hearing for the dissolution of the injunction court and counsel adopted a method of procedure which broadly considered all questions affecting the rights of street railway companies and abutting owners in a condemnation proceeding. The right to condemn was denied so long as the injunction continued, and the power to discontinue the injunction was made to depend upon the status of the street railway company in the assertion of its right of eminent domain. In other words, the burden of establishing all the antecedent facts necessary to the exercise of the power of eminent domain in a condemnation proceeding, was placed on appellant in a proceeding to dissolve the injunction granted several years before the right of eminent domain was conferred. If the law and the facts now existing could have been made to appear in 1903, the injunction then granted could not have been sustained, and the parties would have been required to assert and protect their rights in a condemnation proceeding. What would have resulted then had the right of eminent domain been conferred, which it was not, should now result when this right does exist. Under the circumstances it seems wise to follow the course of procedure adopted in the court below for the purpose of determining the essential questions involved upon their merits. The learned *282court below found as a fact that the appellant company having first obtained the consents of the supervisors and abutting landowners had constructed its line of street railway on the southern side of the turnpike road, except, where it had deviated from its course to avoid the property of appellee, and for several years had operated thereon. After the passage of the act of 1907 it was deemed expedient to straighten the line by taking out the jog in front of the property of appellee and laying the railway tracks at the southern side of the turnpike road through his lands so that the tracks at this point would be in alignment with other portions of the railway already constructed. There can be no doubt that the situation here presented was the kind of mischief permissible under the old law which the new act was intended to remedy. If a construction shall now be placed upon it to defeat this intention the act will fail of its purpose. This legislation was passed as a result of the demands of the people to secure the greater convenience of rural transportation by street railway, and to encourage companies already incorporated and those subsequently to be formed, to increase their facilities and extend their usefulness. Any proper construction of the act must give due consideration to its intendment.' Keeping in view this thought, let us examine the requirements of the statute in order-to ascertain whether appellant is in a position to assert its right to adversely and against the wish of appellee lay its tracks upon that portion of the turnpike included in the fee of those represented by complainant. It is provided in the act that, “before the right of eminent domain herein conferred shall be exercised upon any highway, in any township, excepting for the purpose of crossing such highway, the consent of the owners of at least fifty-one per centum of the foot frontage of the entire distance to be traversed longitudinally, on such highway in said township, shall be obtained.” It will be observed that the statute does not in terms specify the nature and character of the consent to be obtained, but it is supplemental to an act providing for the incorporation and regulation of street railway companies and deals with the method of condemning lands for the use intended. The use intended is the construction and opera*283tion of lines of street railway, and when a consent in writing has been obtained from an abutting owner which grants the right and privilege of constructing, maintaining and operating a street railway upon the public highway in front of his property and over his fee, it would be sticking in the bark to hold that this is insufficient for the purpose of asserting the right of eminent domain conferred by the act. The right to condemn is based on the public use, which is to construct and operate a street railway. It necessarily follows, therefore, that when fifty-one per centum of the foot frontage represented by the abutting owners to construct, maintain and operate a street railway has been obtained, the precedent condition required by the act in order to exercise the right of eminent domain has been met. The fifty-one per centum of foot frontage refers to the entire distance to be traversed longitudinally upon the highway in any township, and not to a particular portion of it represented by the foot frontage of a complaining property owner. If the latter construction should be adopted the purpose of the act would be defeated. It was intended to prevent one or several property owners from hindering and delaying public improvements, but in order that the rights of abutting owners should not be disregarded it was provided that the owners of at least fifty-one per centum of the foot frontage should consent to the construction of the street railway upon the public highway before the right of eminent domain should be exercised against a nonconsenting owner. The real question here is, does the street railway company have the consents of the owners of fifty-one per centum of the foot frontage along the turnpike in the township? It is conceded that it has the consents of a sufficient number of abutting owners to meet the requirement, but it is contended that these consents were obtained prior to the passage of the act of 1907 and therefore not within its provisions. This is too technical to be substantial. The law looks at the substance, not the shadow. By what has already been said it is clear that if appellant since the act of 1907 had secured the very same kind of consents it now has the requirements of the act in this respect would have been met. It would be an idle thing and an un*284necessary burden to say to this company, you must now go out and again obtain what you already have before the right of eminent domain can be exercised. The consents of property owners representing the necessary foot frontage whether obtained before or after the act is sufficient. The consents obtained before , the passage of the act must be regarded as applicable to the general location of the line then made and now existing. In the case at bar the consents must be understood to refer to the location of the street railway on the southern side of the turnpike, and with reference to this location they may be treated as valid consents under the Act of June 1, 1907, P. L. 368. If the general line of street railway should be relocated so as to occupy the center or northern side of the turnpike, it would be necessary to obtain consents for this purpose, because this would introduce new locations and new conditions not contemplated when the original consents were obtained. The act did not modify or change the established rule that only the owners of the fee, or those representing them, had to be consulted in obtaining consents. If the line of street railway does not invade the fee of an abutting owner, his consent is not required and his right to be included in the foot frontage does not exist. In all these respects the law stands as it did before the passage of the act. It is a misapprehension to treat what is attempted to be done in this case as a new location of the line of the street railway system. It is a widening, or perhaps a relocation of the tracks on the turnpike over the land of appellee at a particular point, and is certainly within the reasonable intendment of the act of 1907, or under its express provisions. If by any construction that part of the public highway upon which it is now proposed to lay the tracks could be considered as within the curtilage appurtenant to dwelling house of appellee, and such an interpretation is strained and doubtful, even in such event, it is sufficient to say the act in express terms gives the right to appropriate within the limitations and upon the conditions therein contained. Of course, the owner of the fee may recover damages on the ground that an additional servitude has been imposed upon the highway already dedicated to public use, and such *285damages, if any, may be assessed in a proceeding to condemn and cannot be inquired of here. We think the learned court below was right in the first view of the case and erred in entering the final decree.
Decree reversed, injunction dissolved and bill dismissed. Under the circumstances and because the injunction was properly issued in the first instance we think the costs should be paid by appellant and they are so imposed.