238 Pa. 78 | Pa. | 1913
Opinion by
It would be quite sufficient to say, in vindication of the court’s action in dismissing appellant’s petition, that the petition contemplated a proceeding unauthorized by statute. The recovery of damages for the appropriation of land under right of eminent domain is a matter regulated by statute entirely, and the method provided by the statute for the recovery must be strictly pursued. Petitioners are the owners of a certain tract of land in South Buffalo Township in Armstrong County, upon and over which the Pittsburg & Shawmut Railroad Company, at the time of the filing of the petition, was engaged in constructing its line of railroad. Proceedings were pending for the assessment of damages sustained by petitioners in consequence of the appropriation of part of their land for such purpose, when petitioners, on the 21st of March of the present year, applied for the appointment of viewers to assess damages which had resulted from the railroad company’s neglect and refusal “to make or cause to be made a good and sufficient causeway to enable petitioners to cross and pass over its railroad with wagons, carts, implements of husbandry, locomotives, horses, animals, coal cars, tram
The petition shows a clear misapprehension of the several provisions of the statute governing such matters, and of the respective rights of land owner and railroad company as well. The statute requires of a railroad company that has condemned land for its right of way, and in constructing its railroad has bisected the tract, that it shall make or cause to be made and thereafter maintain, “a good and sufficient causeway or causeways whenever the same shall be necessary to enable the occupant or occupants of said land to cross or pass over
It is quite evident that the refusal or neglect of the railroad company to build the causeway required, can be affirmed, so as to afford the remedy provided, only upon and after the final completion of the work of construction upon the complainant’s land. While the work is there in progress, the company is not only i.n exclusive possession but it alone has the right to determine where and in what manner each item of work is to be accomplished. The road when constructed must show a sufficient causeway within the meaning of the statute. Except as it does so, the owner may enforce his right to a causeway, and, independently of other proceedings which may have been had for the assessment of damages by reason of the taking of the land, may have a separate view to assess the damages which resulted from the company’s neglect or refusal in this regard. But until then the owner has no standing to enforce a request or demand for a causeway, except perhaps as he can show that its construction has been delayed vexatiously, wantonly and maliciously, to his special injury. In the present case admittedly when the petition was filed, the
Again, the petition demands damages for failure on the part of the railroad company to do what is not required of it by any statute. The statute does not require a causeway to be built adequate for any and all purposes for which the owner may desire to use his land. What it does require is a sufficient causeway to enable the occupant of the land “to pass over the same with wagons, carts and implements of husbandry,” thus showing unmistakably that all that is required is a causeway sufficient to admit of the divided parts of the tract being used for agricultural purposes by the occupant, as a whole. The petitioners ask for the ascertainment of damages resulting from the company’s failure to construct a causeway adequate for the passage over it of the locomotives, coal cars, tram cars, and other machinery, utensils, tools and equipments necessary to enable them to properly and profitably mine and transport coal which is upon the land. Assuming it to be true that such causeway would be inadequate to, and would prevent, the profitable mining and transporting of the coal on petitioner’s land, to whatever extent this circumstance would impair the market value of the land, taken as a whole, petitioners would be entitled to compensation in damages. Such damages, however, are to be ascertained through a jury of view appointed to determine the total damages that have resulted from the construction of the railroad. The jury of view already appointed by the court for this purpose is the tribunal to pass on this particular question, and its jurisdiction can be neither enlarged nor reduced by any order of the court.
The assignment of error is overruled, and the order of the court is affirmed at costs of appellants.