253 Pa. 581 | Pa. | 1916
Opinion by
This is a condemnation proceeding to determine the damages which the plaintiffs sustained by reason of the location and construction of the defendant’s railroad over their land in South Buffalo Township, Armstrong County. In 1904, the plaintiffs were the owners of the tract of land which contained eighty-three acres lying on the west side of and adjacent to the Allegheny river. They owned all the land in fee except about twenty acres in which they owned the coal and certain mining rights on the surface above it. The coal lies between the two pieces owned in fee by the plaintiffs, and is contiguous
On April 18, 1910, the defendant company presented its petition to the Court of Common Pleas of Armstrong County averring, inter alia, that it had located and adopted a route for its railroad through the four-acre tract, that it had been unable to agree with the owners as to the amount of damages they would be entitled to receive for the land taken for its road and for the additional strip for a highway, and prayed the court to approve and direct its bond to be filed for the benefit of the plaintiffs or the parties interested in the land. The prayer of the petition was granted. On February 3, 1913, on application of plaintiffs, the court appointed viewers to assess the damages sustained by the appropriation of the land by the defendant company, and, on September 9, 1914, their report was presented to the court and filed, awarding damages to the plaintiffs. On March 12, 1913, the defendant presented its petition to the Common Pleas and asked and was granted leave to amend its former petition and bond by changing the description of the land so as to include the entire tract of eighty-three acres owned by the plaintiffs. At the beginning of the trial of the cause in the Common Pleas,
The appellant states the questions involved to be: Can damages be recovered in condemnation proceedings where land, at the time of appropriation, had not been opened for mining; and whether its motion for judgment non obstante veredicto should have been discharged. At the beginning of its printed argument the defendant says that this appeal is from the order of the trial court discharging a rule for judgment non obstante veredicto in favor of the defendant. Were we to confine our review of the case to these questions, which we might do, Willock v. Beaver Valley R. R. Co., 229 Pa. 526, we would dismiss the appeal without any discussion. The evidence discloses that there is no merit in either of them, and this is so apparent as to render discussion wholly unnecessary.
The defendant company, on November 4,1914, moved the court for leave to amend its petition so as to concede to plaintiffs, as the owners of the land, an eight-car siding on the west side of its main track, the right in plaintiffs to construct and maintain a tramway leading from the mouth of their coal opening to the proposed siding, the right in plaintiffs to construct and maintain across the defendant’s right of way a trestle upon bents stationed within the right-of-way lines subject to proper and sufficient clearance for the defendant’s tracks, and an eight-car siding along the easterly side of its roadbed and between that and the river. The motion was denied, and this is assigned as error. In other words, the de
We think the court correctly disposed of both questions. The effect of the acceptance of a bond by the owner of the premises or the approval of a bond by the court to secure the payment of damages to the landowner for land taken under the right of eminent domain is well settled, by numerous decisions of this court. The location of the route by a railroad company and its adoption by the president and board of directors assures the title to the company as against rival corporations. When thereafter a bond to secure the damages has been given and accepted by the owner or has been approved by the court, the title to the right of way passes to the corporation : Fries v. Southern Penna. R. R. & Mining Co., 85 Pa. 73; Hoffman’s App., 118 Pa. 512; Johnston v. Callery, 173 Pa. 129, and the owner of the land can no longer look to it for compensation for the damages he* has sustained. He is confined to his remedy upon the bond in connection with the statutory provisions for assessment and collection of the damages: Hoffman’s App., 118 Pa. 512. If the bond is worthless, or insufficient in amount to compensate him for his injuries, he is without remedy.
The title which the company acquires by condemnation proceedings has frequently been under consideration by this court, and we have uniformly adhered to the doctrine announced in Penna. Schuylkill Val. R. R. v. Reading Paper Mills, 149 Pa. 18, 20, that “such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure including necessary foundations and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee.” It is clear, therefore, that with the approval of the bond by the Court of Common Pleas of Armstrong County, the title of the plaintiffs to the land appropriated passed to the defendant company, and it acquired the right to exclusive possession of the land so far as necessary for railroad purposes, and for such purposes to build over the surface and to raise and maintain any appropriate superstructure thereon as absolutely and as'uncontrolled as an owner in fee.
The present proceeding was instituted for the purpose of ascertaining the amount of the damages which the plaintiffs sustained by the appropriation of their land, and when that has been ascertained they may proceed on the bond to enforce payment of their claim. In Ferguson’s Petition, 238 Pa. 78, arising out of this appropriation of the plaintiffs’ land for the right of way, we held that the defendant company was not required to give the plaintiffs an elevated drawbridge or overhead causeway sufficiently adequate to enable them to properly and profitably mine and transport their coal to the river, and, in the absence thereof, they would be entitled
The principle sustaining the court’s ruling is recognized in many of our decisions, including those already cited. Wood v. Trustees of the State Hospital for the Insane at Warren, Pa., 164 Pa. 159, was an application to the court by the trustees of the hospital for leave to discontinue proceedings for the assessment of damages for lands appropriated in condemnation proceedings for
If, after the right of compensation has vested in the owner of the land, the corporation cannot defeat the claim for damages by abandonment of the right of way or discontinuance of condemnation proceedings, it necessarily follows, we think, that it cannot defeat a recovery of a part of the claim by conceding or granting to the owner a part of the rights it acquired by the appropriation. The concession is pro tanto an abandonment or a discontinuance of the proceedings or an offer to return to the plaintiffs a part of the property acquired by the defendant under its right of eminent domain. The principle applicable in the one case rules the other. It is clear that after the right to compensation had vested in the landowners, under the eminent domain proceedings, the corporation could not defeat their claim for damages or diminish the amount of the damages by the abandonment of the property or by concession or reconveyance to the owners of any part of the right of way or of any rights or easements below or above the surface acquired by it. The learned court, therefore, did not err in refusing to permit the defendant company to amend its petition so as to grant the plaintiffs the right to construct and maintain a tramway over defendant’s right of way.
Penn Gas Coal Co. v. Versailles Fuel Gas Co., 131 Pa. 522, and McGregor, et al., v. Equitable Gas Co., 139 Pa. 230, cited and relied on by appellant, were eminent domain cases under the Act of May 29, 1885, P. L. 29, for the appropriation of rights of way for the construction of pipe lines for the transportation of natural gas. The company was permitted to release the owner from the
It appears from the evidence that the tract of land in question, prior to its ownership by the plaintiffs, was in three pieces and acquired by the plaintiffs separately and at different times from different owners. The plaintiffs claim that in the assessment of damages it should be considered as one tract. They contend that it is valuable, not only for agricultural purposes but especially for the coal underlying the tract by reason of its being located on the Allegheny river, a navigable highway, which gives it the natural advantage of cheap river transportation. The defendant’s right of way bisects the smaller piece of land so as to leave a small strip on the east side of the right of way and between it and the river, thereby depriving the plaintiffs of access to the river and transportation thereon for their coal, all of which is west of the railroad. The deprivation of the right of access to the river is the principal loss or injury of which the plaintiffs complain. The defendant contends that the land must be considered
The defendant got the advantage of any special appreciation of the plaintiffs’ property by reason of the construction of the railroad through their premises, and
The questions raised by the other assignments need not be discussed. Some of them may suggest technical error, but it was cured by the general charge or is not of sufficient merit to injure the defendant and to justify a reversal of the judgment.
We find no reversible error in the record, and, therefore, the judgment is affirmed.