Trеspass on the case. The declaration contains a single count, and a copy is given in the margin.
On the trial of the case the following facts were developed: The railroad company instituted proceеdings in November, 1880, to condemn the premises in question for railroad purposes under the general railroad law of the State. Commissioners were appointed by the circuit court, who procеeded to view the land and take testimony, and thereupon made their report to the court, awarding the plaintiff three hundred dollars damages. The report was confirmed by the court, and the company deposited the sum awarded in a bank at Pontiac, subject to the plaintiff’s order, and notified him thereof. The company also paid the costs of the proceedings and immediatély took possession of the land, cut down trees, removed fences, graded their road-bed, and laid their track. Plaintiff removed the proceedings into the Supreme Court by certiorari, and they were there quashed for the reason that the service of notice whereby they were begun was unwarranted and void. See
When decision was rendered upon the certiorari, the rail-read company immediately instituted new proceedings in condemnation, the petition for that purpose being filed July 14, 1881. The petition was filed under § 26 of Article II of the General itailroad Act of 1873, which provides that “ at any time after an attempt to acquire title by any railroad compаny by an appraisal of damages or otherwise, if it shall be found that the title thereby attempted to be acquired is defective, the company may proceed anew to acquire or perfect the same in the same manner as if no appraisal had been made, and at any stage of such new proceedings the court may authorize the corporation, if in possessiоn, to continue in possession, and if not in possession, to take possession of and use such real estate or other property during the pendency and until the final conclusion of such new
The proceedings upon this petition went on to a complеtion, and resulted in an award to the plaintiff of the sum of three hundred and fifty dollars, with interest from the time the railroad company took possession. The proceedings were confirmed by the circuit сourt, and the money deposited to the plaintiff’s order as the court directed. The plaintiff removed the order of confirmation into this Court, where it was affirmed. See
After the second proceedings in condemnation had been affirmed in this Court, the plaintiff brought the prеsent suit to trial, and recovered a larger sum as damages than the amount which had been awarded to him in the condemnation proceedings. The theory of the recovery, and upon which the circuit judge submitted the case to the jury, was that the plaintiff, by the original wrong in taking possession of his land under the pretense of void proceedings, had acquired a right of action for substantial damages; that this right was a property right which was unaffected by the subsequent proceedings to condemn the land; and that, never having relinquished or abandoned it, he was entitled to proceed in the suit for its satisfactiоn. Bloodgood v. Rail
There is no doubt that a right in action, where it comes into existence under common-law principles, and is not given by statute as a mere penalty or without equitable basis, is as much property as аny tangible possession, and as much within the rules of constitutional protection. Johnson v. Jones
But an inspection of thе declaration will disclose the fact that the plaintiff does not and could not complain of a disturbance of possessory rights, for he had no possession to be disturbed by the tortious acts. The trеspass was upon the rights, not »f the plaintiff, but of his tenant. What the plaintiff complains of is an injury to his reversionary interest. From the very nature of the injury the damages must necessarily connect themselves with the land, for they are continuous, and extend indefinitely into the future. Had the plaintiff sold the land to a third person, his right to recover from the railroad company would have remained unaffected, for the injury was already inflicted, and the injurious consequences which had resulted or were likely to result would be taken into account in determining the price. McFadden v. Johnson 72 Penn. St. 335 But in this case the railroad itself proceeds to condemn the reversion to its own use, and in doing so takes and pays for the plaintiff’s interest according to its value before the wrongful acts were committed. The new and regular proceedings аre a substitute for the first and wrongful proceedings; and so far as
The judgment must be reversed with costs, and a new trial аwarded.
Notes
For that, whereas, before and at the time of the committing of the grievances by the said defendants, as hereinafter mentioned, a certain messuage and premises, with the appurtenances, situate in the township of Lyon, in said county of Oakland, and known and described as the west half of the east half of the southwest quarter of section twenty (20,) town one (1) north, range seven (7) east, was in the possession and occupation of a certain person, to-wit, one Erwin T. Brooks, as tenant thereof, to the said plaintiff, the reversion thereof then and still belonging to the said plaintiff as the ownеr of the fee, to-wit, at the township of Lyon, in the said county of Oakland.
Yet the said defendants, well knowing the premises, but contriving and wrongfully and unjustly intending to injure, prejudice and aggrieve the said plaintiff in his reversionаry estate and interest of and in the said messuage and premises, with the appurtenances, while the said messuage and premises were so in possession and occupation of the said tenаnt, as such tenant thereof to the said plaintiff, as aforesaid, and while the said plaintiff was so interested therein as aforesaid, to-wit, on the second day of December, 1880, and on divers other days аnd times between that day and the day of the commencement of this suit, at the township of Lyon, in the said county of Oakland, wrongfully and unjustly, without the leave or license of, and against the will of the said plaintiff, entеred upon said premises and tore down and destroyed a portion of the fences thereon, and dug up and displaced the soil, and cut down and destroyed a large number of fruit trees and'timber trees, to-wit, thirty-five apple trees and twenty oak trees of great value, to-wit, of the value of two thousand dollars, then growing and being in and upon said premises, and constructed and graded a road-bed for a railway on and across said premises, to-wit, at the township of Lyon, in said county of Oakland.
By means of which said several premises the said plaintiff hath been and is greatly injured, prejudiced and aggrieved in his reversionary estate and interest of and in the said messuage and premises, with the appurtenances so in the possession and occupation of the said Erwin T. Brooks, as tenant thereof to the said plaintiff, as aforesaid, to-wit, at the township of Lyon, in said county of Oakland.
To the damage of the plaintiff of ten thousand dollars, and therefore he brings suit, etc.