Dissenting Opinion by
Orlady, J.,April 13, 1896:
I dissent from the opinion of the court filed in these cases, as I regard the grade crossing authorized by decree of the court below of the kind mentioned in Penna. R. R. Co. v. Braddock Electric Ry., 152 Pa. 116, “one of those death traps which should not be permitted to exist in any community.” “ All the environments operate in making it exceedingly perilous, so exceptionally dangerous, that it is surprising the directors of the traction •company are willing to imperil the lives and limbs of their patrons by attempting to cross at grade, ” and base this conclusion on the facts as specially found by the learned judge who ¡heard the case.
The evidence taken fully supports the findings of fact, and they are not seriously controverted, but to my mind are so conspicuous and vital that the preliminary injunction should have been made perpetual as to the grade crossing, and a decree •entered directing an overhead or subway crossing of the railroad tracks.
The court below, through the proven and admitted facts, found;:
First. Wyoming avenue in the village of Moosic at the place of 'Crossing is seventy-five feet wide, and the ground is practically level on both sides of the railroad tracks.
Second. On each side of this avenue, on both sides of the railroad there are buildings of different kinds, which obstruct the view up and down the railroad.
Third. The crossing is in the thickly settled portion of the village, and in the immediate vicinity of the railroad station, post office, hotels and stores.
*419Fourth. The steam railroad of the objecting company, consists of three tracks now in actual usé, and a fourth is being constructed to accommodate the increasing business of the company.
The tracks are used by two steam railroad companies; and over which at this point pass daily from one hundred to one hundred and forty trains, forty-two of which are scheduled passenger, and the others unwieldy freight trains; and in addition from six to twenty switching engines daily pass and repass.
Fifth. An overhead crossing is practicable and feasible, the structural part of which would occupy not more than twelve feet in width of the public road surface, and would cost from $3,000 to $6,000—the first amount for a wooden structure, the latter for an iron one.
Sixth. A grade crossing would be a substantial obstruction to the operation of the steam railroad, and would be extremely dangerous to the passengers and employees of both roads, while an overhead, crossing would avoid this obstruction and be practically safe.
The final decree permitting the crossing at grade was made solely for the following reasons:
“ An overhead crossing is out of the question. While the supervisors and the abutting property owners may oonsen t to the construction of the street car track at grade, they do not consent to an overhead crossing. The street car company is not clothed with the power of eminent domain and they must cross at grade or not at all.” Which reason is adopted as controlling, in the opinion of the court as filed, if the crossing is to be on the line of the public road.
I do not agree with the legal conclusions of the learned judge below or my brethren. The supervisors of the township, in their written consent, do not restrict or limit the location or manner of construction of the street railway. Their evident desire was to authorize the building of the road in the way best calculated to further the interest of this company, as they gave it preference over three competing rivals for their favor, and delivered the written consent to build the street railway on the selected route,, without even making a record of their official action or keeping a copy of the writing.
Censurable and irregular as their conduct was, they had the power to grant to this company the right to build an electric *420railway on the roads of the township. This consent protects the company, and it cannot be refined away by technicalities, to defeat its manifest purpose.
It is not alleged in this bill that any private right of any individual is injured or invaded. No abutting property owner is before the court; while some have been called as witnesses,, they do not become parties, and the decree in this case is to be entered without regard to possible controversies which may be raised by strangers to it in other proceedings.
An abutter is interested, as one of the general public;—as owner of the reversionary interest to the center of the highway; —and as a lot owner possessed of the right of ingress and egress to and from the street or road.
If this easement of access is obstructed, or he show some special injury or inconvenience resulting from the construction or operation of the road, he is not without remedy at law: May v. Carbondale T. Co., 167 Pa. 343; Winner v. Graner, 173 Pa. 43.
The use of the street, and the abuse of the franchise under the facts of this case are at all times within the control of the courts, and any impediment to the safe and proper use of a four track trunk line is a matter of public concern.
The street railway company has a statutory right to cross in some manner, but neither its desire nor judgment is conclusive-as to which way will best preserve and protect other interests equal to its own.
A grade crossing is a fruitful source of litigation and a certain menace to life and property.
The stub switch, electric bell or automatic gate, have each so frequently failed in performance of expected duty as to furnish but slight protection to the traveling public.
When -this evil is once fastened upon a railroad it becomes a fixture for all time. If it is to be avoided at all, it must be done now. Every argument urged against it will have -add i-, tional weight with each coming year; this village of to-day is likely to be a thriving center of industry of the near future.
The objection of the Street Railway Company to an overhead crossing is purely a financial one, which in this case would be a mere trifle when compared with loss of life, injury to person, damage and costs, reasonably to be expected from a crossing admittedly so dangerous.
*421A railroad company will not be permitted to interfere with the franchise of another railroad merely to avoid expense; Perry Co. R. R. v. R. R. Co., 150 Pa. 193.
It is now past controversy that the system of electric railways is an every day necessity, and the rapid increase of their number and mileage is conclusive proof of their popularity and financial success.
The control of the courts over grade crossings of two railroads applies with equal force, when a traction or trolley company seeks to cross a steam railroad.
There is no doubt electric railways are within the purview of the act of June 19, 1871. They are certainly within the mischief for which the second section provides a remedy.
It was enacted before this system of travel had assumed its present magnitude, but it has been held to apply to the street electric railways constructed under the act of May 14, 1889: P. R. R. Co. v. Braddock Electric Ry., 152 Pa. 116.
The frequent and vigorous condemnation of grade crossings by the Supreme Court of this state furnishes abundant argument against their existence, except in the rarest instances, where no other means can reasonably be adopted.
The evident intendment of the statute is to prevent grade crossings. Their construction should now and henceforth be discouraged. They ought not to be permitted except in cases of imperious necessity: P. R. R. Co. v. N. & S. V. R. R. Co., 150 Pa. 193.
The necessity which nearly a quarter of a century ago moved the legislature to enjoin these duties on the courts, is now greater than ever. We have had occasion to emphasize the importance of the ever increasing and now almost imperative necessity of prohibiting grade crossings. It is unnecessary to enlarge upon the many considerations that are opposed to grade crossings and the comparatively few that can be even plausibly urged in their favor: A. R. R. Co. v. C. R. R. Co., 160 Pa. 623.
The act of June 19, 1871, P. L. 1360,1 think, confers as full power to direct an overhead or subway crossing, when the one at grade is of the kind described in this case, as to impose restrictions and conditions on the manner of passing at grade.
The first manner of crossing would be a structure of legal expediency adjudged to be the best means of protecting the *422public and preserving the franchise rights' of both companies; the other asserts control over corporate property, directing how and when it may be used, with the same end in view, but with much of concurrent risk and doubtful success.
The first would not be more of an invasion in kind, of the public street or road, than municipalities confer in authorizing the placing of wires and poles of telegraph, telephone and trolley companies or conduits of traction roads.
The second section of the act imposes on the courts of equity the duty “ to ascertain and define by their decree, the mode of such crossing which will inflict the least practical injury upon the rights of the company owning the road which is intended to be crossed and if in the judgment of such court it is reasonably practicable to avoid a grade crossing, they shall by their process prevent a crossing at grade.”
There are but three “ modes ” by which the trolley can be put athwart the tracks of the steam railroad, 1st, at grade; 2d, by an overhead structure; or 3d, through a subway.
The word “ mode ” is synonymous in this connection with method, manner, way. Century Dict., title, “mode.” Bouvier’s, L. Dict., title, “mode.” Anderson’s L. Dict., title, “mode; ” and as used, evidently contemplates a manner of acting or doing, a way of performing or effecting, a selection or legal preference of one mode or manner as opposed to others, and is coupled with the statutory direction that whenever it is reasonably practicable, the grade crossing is to be prevented.
The court found as a fact that the overhead structure was feasible at merely nominal cost as compared with railroad constructions.
The objection to a subway, I am confident, would readily yield to the engineering skill in the employ of either company, at possibly somewhat greater expense, but aside from the fact that mere expense shall not stand in the way of such changes, that argument could not be urged with much force here, as this traction company selected just such a way of crossing these railroad tracks at Spring street, not more than half a mile distant, when the court refused a grade crossing under, this same proceeding.
The depressed tracks with properly guarded approaches, would relieve the crossing of all danger, and conserve all other interests.
*423An overhead structure at this point would not be in conflict with Potts v. Quaker City E. R. R. Co., 161 Pa. 396, in which a chartered steam railroad did not proceed under the general railroad laws to acquire a legal location for its line: Or Com. v. N. E. E. R. Co., 161 Pa. 409, a similar case; in each of which an attempt was made to operate an elevated street passenger railway on the length of the highway under a charter granted under the general railroad law of 1868.
To say that a new mode of passage shall be banished from streets or roads, no matter how much the general good may require it, simply because they were not so used in the days of Blackstone, would hardly comport with the advancement of the present age.
When land is taken for streets or roads it is appropriated for all purposes of a street or road, not merely for the purpose to which streets were formerly applied, but those demanded by new improvements and new wants: Cooley v. Const. Lim. (6th ed.) page 683.
Franchises are always granted subject to the police power of the state. The public welfare requires the railroad business to be open to competition as far as possible. The grant to build a railroad between given termini created no obligation by the state to not thereafter grant the right to build other railroads that with their tracks shall cross the state in different directions and thus pass over the first located company: Perry Co. R. R. Co. v. R. R., 150 Pa. 193; P. R. R. Co. v. Electric Ry., 152 Pa. 116.
And under the provision of the act of 1871, the rights of the traction road are secondary to the rights of the steam railroad, by reason of its first location: Pittsburg & C. R. R. v. S. W. Penna. Ry., 77 Pa. 173; Perry Co. R. R. Co. v. R. R., 150 Pa. 193; Booth on Street Ry. sec. 122, page 179.
The construction of the franchise is to be most favorable to the public, and is not to be impaired by judicial decision so as to make the grant a nullity. Authority to use the means necessary to attain these objects must therefore be supplied by necessary implication, as charters of incorporation frequently prescribe only the main objects of the companies formed under them: 1 Morawetz on Corp. (2d ed.) sec. 320; 1 Waterman on Corp. sec. 138; Endlich on Statutes, sec. 418.
In a conflict between a railroad company and a turnpike com*424pany, touching a provision in a charter prescribing the manner in which it may cross the road of the latter, it was said, “ In such cases some interference by each of the rights of the owner is unavoidable, and when legislative provisions have been made with reference to such interference such construction should be put upon them, if possible, as that the powers and privileges of each shall be no further limited or restrained than may be reasonably necessary to accomplish the public purpose for which it was established:” Turnpike Corp.v. Eastern R. Co., 23 Pick. (Mass.) 326; 4 Thompson’s Commts. on Corp. sec. 5664.
The rights of the public are not limited to a mere right of ;way, but extend to all beneficial and legitimate street uses, such as the public may from time to time require : Rafferty v. Traction Co., 147 Pa. 579.
The practicability of the substitute for the grade crossing depends almost entirely on the circumstances of each particular case: Northern Cent. Ry. App., 103 Pa. 626; Altoona etc. R. Co. v. T. & C. R. R. Co., 160 Pa. 623.
In P. & C. R. Co. v. S. W. P. R. R. Co., 77 Pa. 173, a grade crossing was refused because,
First. It is not the one which will inflict the least practicable injury on the rights of the appellant; and
Second. It is reasonable and practicable to avoid a .grade crossing.
In P. C. R. R. Co. v. N. & S. V. R. R. Co., 150 Pa. 193, a grade crossing was perpetually enjoined, though it was a local road in a sparsely settled country, with but limited amount of business and few trains; and an overhead crossing would necessitate an expenditure of $40,00,0, almost one half of the authorized capital stock of the company.
In the P. R. R. Co. v. B. E. Co., 152 Pa. 116, a crossing at grade was refused, with facts as meritorious as the ones presented here.
In the A. R. Co. v. T. & C. R. R. Co., 160 Pa. 623, four grade crossings were refused and overhead ones required at each location, the expense of either being much greater than in this case, and each being in country districts as compared with this.
In view of these authorities, I feel the facts of this case should move the court to refuse the right to cross at grade, and by its decree, ascertain and define another mode of crossing.
Beaver, J., concurs in the conclusions reached in this opinion.