25 Pa. 229 | Pa. | 1855
The opinion of the Court was delivered by
The Act of 26th January, 1849, regulating turnpike and plank-road companies, contained no provision for compensating the owners whose lands were taken for the bed of the road; but the supplement of the 7th of April following made provision for the recovery of damages for this injury, to be assessed in the manner prescribed in the 9th section of the original Act. By that section it is made the duty of the corporation to give notice of their intentions, to endeavour to agree with the occupiers upon the damages, or upon men to assess them; or if either party, upon due notice, refuses to join in the choice of men for that purpose, then a justice of the peace of the county where the lands lie, is to choose them. But the property is not to be taken, until the assessed value be tendered or paid, or adequate security be given to the owners for the payment thereof. In the case before us, the land appears to have been taken without any effort to adjust the compensation, and without any tender or payment of or security given for the same. The corporation and all who acted by their authority, in entering upon and taking possession of the plaintiff’s land, were therefore trespassers, and liable to the action of trespass at common law. The supplement was not intended to repeal the provision in the original Act, which declared that no
There is no evidence on the paper-book of the plaintiff in error tending to show that the corporation had a license to enter granted by the owner of the fee, before he demised to the tenant his term for years. The testimony given by Samuel Low and Timothy Reed, amounts to no more than proof that the company entered upon the rights of the tenant for years, under a license from the landlord. This was clearly a trespass. It is not necessary, under the evidence stated on the paper-book, to consider what the law would be if the license had been granted before the lease, and the tenant contracted and entered without notice of it.
On a careful consideration of the errors assigned, we see nothing to justify a reversal of the judgment.
Judgment affirmed.