246. We applied the same principle in Penn. | the highways, etc., it imposed additional burR. R. Co. v. Montgomery County Pass. Ry. dens for like purposes on the highways of the Co., 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 766, newly created township. There is nothing in 46 Am. St. Rep. 659, where we noted the the legislation indicating an intention to distinction between the servitude imposed on create additional servitudes or burdens of land taken for a city street for which com- any character on such highways, or to aupensation need not be made or secured and thorize the township commissioners to do so. the additional burden imposed on a rural Its purpose, as disclosed by the preamble to highway for which the abutting owner must the act, was to give first-class townships a be compensated, and held that until there "municipal government having greater powwas legislation authorizing it a street rail-ers than are now possessed by the local govway could not be constructed upon such high- ernments of townships under the existing way without the consent of the abutting owners. The same doctrine is recognized in Hannum v. Media, Middletown, Aston & Chester Elect. Ry. Co., 200 Pa. 44, 49 Atl. 789.

law." It is expressly provided in the act that the then existing legislation relating to townships should continue until changed, modified, or repealed by legislation relating expressly thereto. It is apparent that, under

were conferred on the municipal government there was no change in the township, its organization, and the control over its highways except such as was expressly made by the legislation. When land is taken for a rural highway, the only servitude contemplated by the public authorities and the owner is the well-understood burdens of a right of passage by the public with its incidental powers, and damages are awarded the owner for the imposition of that and no other servitude upon the land. The appropriation of land for a highway is a taking for public use within the intendment of the Constitution, and, if any additional servitude is created other than the one originally imposed, it must be with the consent of the owner or for compensation made or secured to him. There is no provision in the Classification Act for such compensation; and, as already observed, there is no intimation in the act of an intention to change the rights of owners of land abutting on highways, nor does the act declare that a township of the first class shall possess any of the powers of a borough or city other than those expressly granted. In his opinion in the Dempster Case, supra, Mr. Justice Dean says (205 Pa. p. 76, 54 Atl. p. 502), inter alia:

[2, 3] It is clear that prior to the recent | the Classification Act, while greater powers legislation classifying townships the construction of an electric light line on a township road would require the consent of the abutting owner, and would constitute an additional burden on the land for which he would be entitled to compensation. It is contended, however, by the plaintiff that this legislation subjects the highways of a township of the first class to urban necessities and conveniences, and therefore an electric light company may, as in a borough or city, place its poles and wires upon such highways without the consent of the abutting property owner and without compensating him for the injury he may sustain. It is claimed that, as the legislation conferred on the township commissioners the authority to construct and repair public highways, and "to establish lights thereon where it may be deemed expedient to do so," and generally to exercise powers similar to those of a borough. or city council, it imposed additional servitudes on the highways and the servient estate of the abutting owners. The learned court below held, however, that the case under consideration was ruled by the principle announced in Dempster v. Union Traction Co., 205 Pa. 70, 54 Atl. 501, which holds that by the Classification Act a township of the first class is not turned into a borough or city or anything resembling one, and that its highways are not subject to the servitudes of urban necessities and conveniences

*

of the first class was not turned into a borough "By the legislation concerning it a township or anything resembling one, any more than that legislation turned it into a city of the first class. *The act of classification does not atother than the ordinary easement of passage ship nor borough; it obviously intends to pretempt to create a hybrid borough, neither townby the public. We agree with the trial serve the old township organization with all its court's conclusion, and nothing more need be powers and duties, except where it expressly Nowhere in the act added to sustain it than the clear and forci- enacts otherwise. is it intimated that as to existing roads and ble opinion of Mr. Justice Dean in the Demp-highways have the commissioners any other or ster Case. He reviews our cases on the sub- greater power than theretofore existed as to ject, directs attention to the distinction be- the imposition of an additional servitude, such Calling the towntween the rights of abutting owners on rural as street railways. ship a first-class township did not make it a highways and on city and borough streets pri- borough in name, nor do its physical characteror to the Classification Act, and discusses at istics make it one in fact. It is not enough that length the effect of such legislation on the many of its wants and perhaps necessities are owners of land adjacent to highways in town- these the Legislature attempted to enumerate; those of a borough or city, and that some of ships of the first class. It was there contend- street railways are not one of them; legislaed, as it is here, that, as the legislation confer- tive silence excludes them."

*

(Supreme Court of Pennsylvania. Jan. 3, 1916.) is no pretense on the part of the plaintiff that

The following opinion was filed by Evans, a mortgage. The former conveyed his property J., in the court below:

The city of Pittsburgh has power to compel the removal of poles and overhead wires from its streets, provided the power is exercised in a reasonable manner.

$15,000. He owed $5,000 as counsel fees in the | 4. ELECTRICITY 9 (3) POLICE REGULAlitigation which resulted in his establishing the TIONS POWER OF MUNICIPALITY - POLES trust in Conlin. He had no money to pay that AND WIRES. amount and was unable to secure any. Without the aid of the Crawfords and his brother, George, he could not secure that money. Crawfords refused to assist in raising the money except on | the condition that the absolute title to the property should be conveyed to George Oliver. The plaintiff acquiesced in that, acquiesced with the full knowledge of what it meant, and stated that he preferred, if he was going to lose his property, that his brother should have it rather than Conlin.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 4; Dec. Dig. 9(3).]

5. ELECTRICITY

9(3)—REGULATIONS-OCCU

PATION OF STREETS-POLES AND WIRES. Where the overhead wires of defendant carry electricity of such high voltage as to be dan

The court on final hearing dismissed the gerous to any one coming in contact with them, bill. Plaintiff appealed.

Argued before BROWN, C. J., and MESTREZAT, POTTER, STEWART, and FRAZER, JJ.

S. S. Robertson and H. R. Birmingham, both of Pittsburgh, for appellant. A. C. Purdy, Fred W. Scott, and H. P. Burns, all of Pittsburgh, for appellee.

PER CURIAM. This decree is affirmed on the discussion by the learned judge below of the facts found.

Decree affirmed, at appellant's costs.

(251 Pa. 557)

and they amount to an obstruction and constitute a source of additional danger in fighting fires, both to the firemen and to the public, an ordinance requiring them to be removed and placed in underground conduits is within the power of the city.

[Ed. Note. For other cases, see Electricity, Cent. Dig. § 4; Dec. Dig. 9(3).] 6. INJUNCTION REQUESTS.

130-FINDINGS BY COURT

In a suit to enjoin enforcement of a murations to remove poles and overhead wires from nicipal ordinance requiring public service corpocertain streets, the refusal of findings as to the annual income of plaintiff from subscribers in the territory served by plaintiff's lines on the streets named is not error where the court makes a finding that the annual income from the subscribers in the territory involved, taken in connection with the income from the city for arc lamps, will be sufficient to reimburse plaintiff

DUQUESNE LIGHT CO. v. CITY OF PITTS for the annual cost of maintenance of an under

BURGH.

ground system and give a profit to plaintiff.
[Ed. Note.-For other cases, see Injunction,

(Supreme Court of Pennsylvania. Jan. 3, 1916.) Cent. Dig. 88 288-300; Dec. Dig. 130.]

1. MUNICIPAL CORPORATIONS 105-OrdiNANCES-TITLE AND PREAMBLE.

The title and preamble are parts of an ordinance, as they are of a statute.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 223, 224; Dec. Dig. 105.]

2. ELECTRICITY 9(3)—REGULATIONS- CONSTRUCTION OF ORDINANCE-POLE AND WIRES. An ordinance requiring public service corporations furnishing electric light, heat, or power or operating telegraph or telephone lines to construct conduits and complete the same before the completion of improvements on certain streets and to remove overhead poles or wires and place the same underground, and providing that where the city had any of its lines on such poles the companies owning the poles should first remove their own wires and place them underground, and when that was done the city should remove its lines or wires, is not limited in its operation to poles which were used by the city for carrying its wires, but applies to all poles and overhead wires on the streets named.

[Ed. Note. For other cases, see Electricity, Cent. Dig. § 4; Dec. Dig. ~9(3).]

3. APPEAL AND ERROR 724(1) ASSIGNMENTS OF ERROR-SUFFICIENCY.

On appeal from a decree in equity, assignments of error in the admission of evidence and in findings of the trial court are defective where no exceptions are shown to have been taken to the action of the court and it does not appear that any action was taken by the court in banc with reference to the findings.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2997, 3001; Dec. Dig. 724(1).]

7. INJUNCTION 130 INSTRUCTIONS STREET FRANCHISES-VESTED RIGHT.

In a suit to restrain enforcement of an ordinance requiring removal of poles and overthat plaintiff had a vested right to construct and head wires from certain streets, an instruction maintain its poles and wires on the streets of the city, not including any statement that the right was subject to reasonable control by the city authorities, was properly refused.

[Ed. Note.-For other cases, see Injucction, Cent. Dig. §§ 288-300; Dec. Dig. 130.1 8. INJUNCTION

SIONS OF LAW.

130-FINDINGS-CONCLU

In a suit to enjoin enforcement of an ordinance requiring poles and overhead wires to be removed and placed underground, the refusal of a request for the statement of a conclusion of law that the city had no right to require plaintiff to place its wires underground was not error where there was no suggestion that plaintiff intended to discontinue business in the section of the city named in the ordinance.

[Ed. Note.-For_other_cases, see Injunction, Cent. Dig. §§ 288-300; Dec. Dig. 130.]

Appeal from Court of Common Pleas, Allegheny County.

Bill in equity by the Duquesne Light Company against the City of Pittsburgh for an injunction to restrain the enforcement of a municipal ordinance. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Bill in equity for an injunction to restrain the municipal authorities from indorsing the

"Whereas, it is now deemed advisable to have city for carrying its wires. But it is apparsaid poles or wires on these certain streets plac-ent that it was not the purpose of the city ed underground, and to provide at the time such council to so limit the ordinance, and that it streets are being improved, underground conduits or other means whereby said overhead was intended to apply to all poles and overwires may, at a later time, be placed under- head wires upon the streets named. ground without tearing up or disturbing said streets."

provisions of the ordinance, and from interfering with, or removing any of plaintiff's poles, wires, cables, or other apparatus now erected and maintained upon the streets in question. These wires, and the other equipment, as has been stated, were at the time, at that particular locality, all maintained overhead upon poles.

In the answer, which was filed upon the part of the city, it is alleged that the overhead wires of plaintiff carry a current of high voltage for lighting purposes, and are at all times a source of possible danger to property along the streets, and to the traveling public; it is also averred that the terms of the ordinance constitute a lawful and reasonable exercise of the police power by the city

The plaintiff in this case, the Duquesne Light Company, refused to comply with the The abuse of the surface of city streets by requirements of the city authorities and filed frequent tearing up of the paving, caused by this bill in equity, seeking to have the city ill-advised planning of improvements is no-restrained by injunction from enforcing the torious, and the effort in this instance upon the part of the city to lessen this evil was certainly commendable. With this object in view, and apparently taking it for granted that if the poles and overhead wires were removed from the streets, the light company would, as a matter of course, in accordance with the usual method place its wires in underground conduits, the city went on to provide in the ordinance, that all public service corporations, and others having overhead poles or wires along the streets in question, should construct conduits for the reception of the wires, before the work of improving the streets named, should be completed. The emphasis was upon the time for doing the work, so as to save the surface of the streets, rather than upon the fact of construction. This direction to construct conduits was, of course, dependent upon the assumption that the light company intended to continue its business and to serve the public in that locality. It goes without saying that the company had the right to decline to construct conduits, even as it presumably had the right to abandon its business at that point, upon condition that it made due provision for carrying out its contract obligations, and for the discharge of the duties to the public which it had assumed under the terms of its charter. But the record shows no intimation of any intention upon the part of the company to relinquish any part of its business.

[3] The case was tried in the court below

before Cohen, J., who in a careful and elaborate opinion held that the ordinance was valid, and affirmed the contention that its adoption was a proper exercise of the police power. Exceptions, which were filed on behalf of plaintiff to the findings of fact, and conclusions of law reached by the trial judge, were overruled, and a final decree was entered by the court below, dismissing the bill. Plaintiff has appealed, and on its behalf its counsel have filed eleven assignments of error. In the first assignment, error is alleged in the entry of the final decree by which the plaintiff's bill was dismissed. In five assign[1, 2] An inspection of the ordinance shows ments, from the second to the sixth inclusive, that it is not carefully drawn, and the inten- no exceptions are shown to have been taken tion of the city is not made as clear as it to the action of the court below, nor does it might have been, but if we look at the title appear that any action was taken by the and preamble, which are parts of the ordi- court in banc, with reference to the findings nance, as they are of a statute (see In re of which complaint is made. In the eleventh Beechwood Avenue, 194 Pa. 86, 45 Atl. 127), assignment, error is alleged in sustaining an it is apparent that the purpose was to re- objection to the relevancy of a stipulation quire public service corporations occupying filed by counsel. But neither the record nor specified streets "to place their cables under- the assignment of error shows any exception ground," as a consequence of their removal to the ruling of the court sustaining defendfrom the poles. In section 4 of the ordinance ant's objection. The first assignment of erthere is a recognition of the fact that the city ror, however, which is to the entry of the has some of its lines of wire upon certain final decree dismissing the bill, raises the impoles, and in such cases, the companies main-portant questions, which call for considerataining the poles are first required to "re- tion on this appeal. move their own lines and wires from such poles," and then the city is to remove its lines and wires from the poles to the conduit, and afterwards the companies are to remove the poles, and restore the highway to its original condition. It is true that the re quirements of the ordinance might, by a narrow and strict construction, be held to apply

[4, 5] The right of a municipality to exercise control over the erection and maintenance of poles and electric wires in the streets, and to compel them to be removed or the wires placed underground, where the safety or convenience of the public requires such action, has been generally recognized. Thus in 3 Dillon on Municipal Corporations