Honorable Samuel S. Lewis,
AGO 21
Opinion No. 21
Pennsylvania Attorney General Opinions
Opinions of the Attorney General
August 17, 1931
Street Railways—Abandonment—Obligation to Restore Highway—Turnpikes.
Upon the abandonment of the facilities of a street railway company, it is the obligation of the company or the purchasers of its facilities, upon removal of the tracks from a state highway, to replace the surface of the highway in the same condition as the rest of the road at the time of the removal of the tracks.
A turnpike operated by a private company is a public highway.
Honorable Samuel S. Lewis,
Secretary of Highways,
Harrisburg, Pennsylvania.
Sir: You have inquired as to the liability of the Lancaster, Ephrata and Lebanon Street Railway Company to replace the surface on State Highway Route No. 137, made necessary by the removal of the tracks of the company.
That part of State Highway Route 137 with which we are concerned was formerly a turnpike operated and maintained by the Clay and Hinkletown Turnpike Company.
On July 26, 1911, the turnpike company entered into an agreement granting to the Ephrata and Lebanon Street Railway Company, predecessor of the Lancaster, Ephrata and Lebanon Street Railway Company, the right to construct and maintain a single track railway from Ephrata to Clay, along the turnpike, under certain terms and conditions which will be referred to hereafter.
We are advised by the Department of Internal Affairs that the Lancaster, Ephrata and Lebanon Street Railway Company was recently sold under foreclosure proceedings, and the purchaser is now removing the tracks of the company. The turnpike was purchased September 12, 1919, by the Commonwealth, the County of Lancaster contributing a portion of the purchase price.
We are of the opinion that it is the duty of the railway company, or its successor by purchase, upon abandonment of its franchise and the removal of its rails from the improved portion of the highway, to replace and restore that portion formerly occupied by its tracks to a condition equal to the balance of the road at the time the removal was effected.
It is fundamental that the highways of the Commonwealth are held in trust for the use of all the citizens thereof in common. They must be kept open and free from nuisance at all times for the benefit of any who would use them. Delegation of the duty of maintenance to any subdivision of the Commonwealth does not change its status as a...
