54 Pa. Super. 587 | Pa. Super. Ct. | 1913
Opinion by
It is conceded that at the time of his death, October 30, 1908, Joseph Crider was the owner in fee of a tract of land across which the defendant company had just constructed its line of railway. He did not reside on the land. Upon his death the title to the land vested in the two plaintiffs, his children and heirs at law. On or about December 31,' 1908, the defendant executed and tendered to the plaintiffs a bond which was accepted by the latter. It recited that defendant had "located its tracks and line of railway over and through that piece of land owned or claimed and now in possession of ” the plaintiffs. It secured to them the payment of "such amount of damages as they shall be entitled to receive after the same shall have been agreed
First: That the present plaintiffs could not recover anything for the reason that the entry of the company had been made in the lifetime of their predecessor in title, and that the right to recover the compensation for the entry and appropriation of the land vested in the then owner and did not pass to his heirs at law as an incident to the title to the real estate.
Second: That the evidence tending to establish the amount of the damages should relate not to the date of the giving of the bond but to the time of the actual entry upon the land.
1. It appears to be conceded in the briefs of counsel that in 1905 the father of the plaintiffs made a grant to a railway company of a' right of way through his property, the exact location and width of which were described in the grant. At that time such companies were not invested with the right of eminent domain. The rights acquired by that company under its grant afterwards became legally vested in the present defendant company and the right to .take private property for public use was conferred on such
Under these facts when was the land, occupied by the line as constructed, subjected to the permanent easement that results from the exercise of the right of eminent 'domain? Section 8 of article XYI of the constitution not only declares that just compensation must be made to the owner of private property taken for public use, but also that such “compensation shall be paid or secured before such taking, injury or destruction.” Even if we were without the benefit of any authoritative construction of this section, the language quoted plainly declares that private property is not taken under the constitutional right until just compensation has either been paid or secured. So it was said in Fries v. Railroad Co., 85 Pa. 73: “This case differs from that of the Western Pennsylvania Railroad Co. v. Johnston, 59 Pa. 290. There the railroad company had neither paid the money nor given the bond required by the law as security, before entering on the land. The entry was therefore unlawful and the land remained liable to the re-entry of the owner. . . . It is argued that the principles of ownership
The state of facts here presented differs in no essential particular from that before the court in Graham v. Railroad Company, 145 Pa. 504. It was there said: "For redress of the injuries resulting from this invasion of the plaintiff’s rights, he had, of course, his remedy by an action of trespass: Harrisburg Boro. v. Crangle, 3 W. & S. 460; McClinton v. Railway Co., 66 Pa. 404; Dimmick v. Brodhead, 75 Pa. 464. The effect of the subsequent statutory proceeding to assess damages was to divest
Finally we have this proceeding begun by the petition of defendant praying for the appointment of viewers, in which are contained the averments already quoted. In Fischer v. Railroad, supra, the trial court held that the company was concluded by such averments, but it was permitted to withdraw its petition and bond after making affidavit they had been filed under a misapprehension of the facts, etc. This action was held to be
Under the facts before us then we are constrained to hold that the defendant company acquired no lawful right to that portion of the plaintiff’s property occupied by its line and not within the limits of the earlier grant until its bond was tendered to and accepted by the plaintiffs. As a consequence they are the parties lawfully entitled to the compensation that represents the value of what was then taken from them. If this be true, it must further follow as a corollary that the damages should be assessed as of the date of the appropriation. This is the general rule, and we can discover nothing in the facts of this case that would bring it within the recognized exceptions to that rule. No evidence of any kind was offered, the legal effect of which would be to estop the landowner from the exercise of his ordinary rights. It is not shown that the seizure of his land outside the limits of the grant he had made was either with his knowledge or by his consent. Under existing circumstances he may have assumed that the company was confining its operations within the lines of the grant he had made. After a careful review of the entire record we are of the opinion that the case was well tried and the judgment entered in the court below should not be disturbed.
Judgment affirmed.