258 Pa. 64 | Pa. | 1917
Opinion by
In 1863, the Harrisburg, Carlisle and Chambersburg Turnpike Road Company bought the land here at issue,
, comprising eighty perches, of Alex. K. McClure, as a tollgate house property. It was a part of Mr. McClure’s farm and situate in Franklin County on the turnpike between Chambersburg and Shippensburg. The deed therefor contains a provision as folloAvs, viz: “That if the said turnpike company shall at any time remove said gate house from the said premises then the said Alex. K. McClure, his heirs or assigns, shall have the first, right to purchase said house and lot at an appraisal to be fixed by the appraisers, two to be chosen by the parties hereto and the two so chosen to select a third, and in case the said turnpike road shall be abandoned by said turnpike company then the house and lot hereby conveyed shall revert to said Alex. K. McClure, his heirs and assigns.”
In 1867, Mr. McClure sold the balance of the farm' to Levi Horst, the deed for which contains the following reservation, viz:
“The house known as the Toll-gate house with eighty perches of ground having been conveyed by the said party of the first part to the Chambersburg and Carlisle Turnpike Road Company to use and enjoy the same so Jong as said property shall be used as a Toll-gate by said
By sundry conveyances, etc., Horst’s title became vested in the defendants. The half acre was used as a toll house property until 1915, when by amicable agreement the turnpike company sold and conveyed the said turnpike road to the Commonwealth of Pennsylvania for twenty-five thousand dollars, which sale embraced all of said company’s property used in connection with the said road or appurtenant thereto, including bridges, toll houses and other structures and all road materials and equipment on hand, etc., and especially including the half acre here at issue, with the buildings and appurtenances, together with all rights and easements embraced in 'the McClure deed therefor. The State’ highway commissioner acted for the Commonwealth in the acquisition of the turnpike road, which at once became a State highway free from tolls. The purchase of the road did not include the franchise of the turnpike company.
-In our opinion the trial court was right in holding that the sale to the Commonwealth was not an'abandonment, of the land in question, whether it-be considered as real or personal property.
“The characteristic element of abandonment is the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker. In this respect it is distinguishable from all other.modes by which ownership may be divested. Thus it is in the matter of the cessation of ownership that abandonment is distinguished from a transfer by sale or gift, for if the title be continued in another by any of the modes known to the law for the transfer of property, there has been no abandonment, because the right first acquired by the occupancy still exists although vested in
“A sale or conveyance of a property is not an abandonment within the meaning of a clause in a deed that the property shall revert to the grantor upon its abandonment by the grantee. The word ‘abandonment’ has a well defined meaning in the law which does not embrace a sale or conveyance of the property. It is the giving up of. a thing absolutely without reference to any particular person or purpose and includes both the intention to relinquish all claim to and dominion over the property and the external act by which this intention is executed, so that it may be appropriated by the next comer”: St. Peter’s Church v. Bragaw, 10 L. R. A. (N. S.) 633, 636.
“There can be no such thing as abandonment in favor of a particular individual or for a consideration. Such . act would be a gift or sale. An abandonment is the relinquishment of a right, the giving up of something to which we are entitled. If it is made for a consideration it would be a sale or barter, and if without consideration, but with an intention that some other person should become the possessor, it would be a gift”: Stephens v. Mansfield, 11 Cal. 363, 365.
The above and other authorities cited for appellee sustain the contention that a transfer of property from one party to another for a consideration is not an abandonment. And in that respect we see no controlling difference between the sale of a turnpike road and that of other property. In this case it is the abandonment of the turnpike road and not of the franchise that under the proviso in the original deed gives rise to the reversion. In West Philadelphia Pass. Ry. Co. v. Philadelphia & West Chester Turnpike Road Co., 186 Pa. 459, the defendant having the right to'maintain and operate a street railway in the western end of Market street, Philadelphia, expressly and by statutory authority, released to the city all its rights, privileges, franchises, etc., in said street; and over twenty years later attempted to build a
The assignments of error are overruled and the judgment is affirmed.