Appeal, No. 118, Jan. T., 1955, from decree of Court of Common Pleas of Columbia County, May T., 1952, No. 3, in case in The Delaware, Lackawanna & Western Railroad Company v. Harold C. Shuman and Marqueen R. Shuman. Decree reversed.
G. W. Morgan and R. S. Hemingway, for appellant.
E. Eugene Eves and Smith & Eves, for appellees.
Before Stern, C.j. Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR., JUSTICE CHIDSEY
This case arises out of a complaint in equity filed by The Delaware, Lackawanna & Western Railroad
Company to enjoin the use of a crossing over its right-of-way.
In 1862, the Lackawanna and Bloomsburg Railroad Company, which was subsequently merged into The Delaware, Lackawanna & Western Railroad Company, condemned land in Columbia County owned by appellees' predecessors in title for use as a right-of-way. The right-of-way which ran east and west divided the farm owned by appellees' predecessors in title and prevented free access from one portion to the other. The provisions of the Act of February 19, 1849, P.L. 79, 67 PS § 381, require that a railroad under these circumstances construct "... a good and sufficient causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of said lands to cross or pass over the same, with wagons, carts and implements of husbandry, as occasion may require, ...". Such a causeway or crossing was constructed and maintained by appellant over the right-of-way through appellees' land.
In 1949 the Department of Highways relocated State Highway Route No. 4 through the land of appellees, paralleling appellant's right-of-way to the north thereof. The causeway or crossing over the right-of-way extended as a roadway from the highway to the south of appellant's right-of-way known as Route No. 11 to the new Highway No. 4 to the north. In the same year, 1949, appellees constructed on their premises to the north of the railroad right-of-way and between it and the reconstructed Highway No. 4, a gasoline service station and have since conducted the business of selling gasoline, oil and automobile parts and accessories to the public. The gasoline station was in proximity to the crossing over the railroad tracks and the latter was available to appellees' customers passing over it and using the roadway extending on either side of the
crossing for access to the gasoline station. The roadway was widened and improved by the appellees except at the actual crossing of the railroad tracks. The foregoing facts were established at the trial before the chancellor by admissions in the pleadings and the testimony of witnesses, and were not disputed by appellees. The appellant also adduced testimony to the effect that in an eight-hour period on August 4, 1952, there were 67 crossings of the right-of-way by motor vehicles, cyclists and pedestrians; for a six-hour period on ...