129 A. 845 | Pa. | 1925
Argued April 14, 1925. Appellee, under its charter powers, pursuant to the Act of February 19, 1849, P. L. 79, 83, located a railroad in Clinton County. It passed over lands of appellants. Denying the company's authority to take the land, proceedings were instituted under the Act of June 19, 1871, P. L. 1360, to restrain the taking. The court below on final hearing denied the applications and dismissed the bills. Appellants admit the company, by resolution duly adopted, located the center line of the proposed road and marked it on the ground. They also concede this action gave the company the right to take appellants' land to the extent of sixty feet in width. They further admit the condemnation proceedings and the steps leading thereto are regular, but they urge these proceedings are ineffective as to any land in excess of sixty feet. This position is based on the assertion that the jurisdictional facts necessary to sustain a taking of land over sixty feet are *593 not averred in the petition or accompanying bond. Nor, as to this excess land, was there any appropriating resolution adopted by the board of directors.
The questions before us are: (1st) whether it is necessary for a railroad company, having duly adopted its route, to set forth by formal resolution the courses and distances of the land appropriated where it exceeds sixty feet in width; 2d must the condemnation petition in all such cases set forth the extraordinary purposes for which the excess land is to be used; 3d must the proceedings show a necessity for a roadbed "at grade sixty feet in width for the operation of its proposed railroad?"
Drafts were attached to the petitions or bonds showing land much wider than sixty feet. The owners, under the Act of June 19, 1871, P. L. 1360, section 27, could challenge and inquire into the necessity for the taking: Gring v. Sinking Spring Water Co.,
Section 10 of the Act of February 19, 1849, P. L. 79, 83, provides "that the president and directors . . . . . . shall have power and authority by themselves, their engineers, . . . . . . to survey . . . . . . fix, mark and determine such route for a railroad as they may deem expedient . . . . . ., and not, except in the neighborhood of deep cuttings, or high embankments . . . . . . to exceed sixty feet in width, and thereon to . . . . . . construct and establish a railroad, with one or more tracks." The above is the effective part of the section as it relates to the present controversy; it is the basis of appellee's power to condemn.
As has been frequently expressed, the enabling acts delegating the power or authority to exercise the right of eminent domain are to be strictly construed: Lance's App.,
We long ago held that under this act railroads could be laid out, and property taken under the right of eminent domain; companies acting thereunder possessed all the faculties necessary to the successful accomplishment of that purpose, always within the limits of the act. "The president and directors of such company" shall have authority. The use of this language clearly contemplates corporate action, which means of course the adoption of a resolution. It does not mean the president alone or the directors individually, but contemplates corporate action: Boalsburg Water Co. v. State College Water Co.,
If no width is designated in the resolution adopting the route, the full width will be presumed: Williams v. Delaware, Lackawanna and Western R. R. Co.,
As there was no width fixed when the resolution was adopted, the presumption would be the company intended to take the full width permitted by the act, that is, sixty feet for roadbed, with such additional ground as might be necessary for deep cuts, fills, etc., or stations, *595 sidings and turnouts. The definitive discretionary act is the location on the ground of the line, and its adoption by corporate action. Establishing by metes and bounds the necessary width on the various tracts over which the road passes is contemplated by the act as an engineering detail. It is unnecessary, and manifestly so, that corporate action should precede this latter designation on the various properties to be taken.
When the petition for approval of the bond is filed, accompanied by a map designating the extent of the land to be taken, the owner knows precisely the quantity of land the company proposes to take. If he objects to it as unnecessary, he can protest, as was done in this case. But the lack of corporate action as to each piece of land would not stop the proceedings or defeat the action, provided the company justifies the taking of additional land over sixty feet to be within the act by showing the necessity therefor. This is a matter of engineering skill, considering the country through which the proposed road passes, the contour of the land and the character of the earth's strata with which, at the established grade, it comes in contact. There may be places where, because of the geological formation encountered, the cuts and fills will spread out to an unusual extent; at others it will be confined to a restricted area, due allowance being made for the action of the elements where cuts and fills are met.
The petition and bond did not set forth that the extra width was in the neighborhood of deep cuts and fills. The road was to be built through mountainous country, along precipitous hillsides; it would have been better practice to so state in the petition (Wilson v. Pittsburgh Lake Erie R. R. Co.,
It is not necessary, as contended, to specify the number of tracks it is proposed to construct, so as to bring the deep cuts and fills within the sixty feet; the company is entitled to that width in addition to land for cuts and fills: Phila.
Reading R. R. Co. v. Obert, supra, 202; Pennsylvania R. R. Co. v. Braddock Borough,
Objection is made to the condemnation of land in excess of sixty feet on which to relocate a highway in the same proceeding as the appropriation of land for a railroad, the condemnation proceedings not showing the land proposed to be used for a highway or for a railroad. Whatever land was taken for a highway was contiguous to that to be used for a railroad. The authority to condemn may be found in sections 10, 11, 12 and 13 of the Act of February 19, 1849, P. L. 79, 85. Section 13 (P. L. 85) provides that if a "railroad company shall find it necessary to change the site of any portion of . . . . . . [a] public road, they shall cause the same to be reconstructed forthwith . . . . . . on the most favorable location . . . . . .; provided that the damages incurred in changing the location . . . . . . shall be ascertained and paid by such company in the same manner as is provided for in regard to the location and construction of their own road." Section 11 (P. L. 84) provides that "when the said company cannot agree with the owner or owners of any *597 lands . . . . . . for the compensation proper for the damage done or likely to be done to . . . . . . such lands . . . . . . which such company may . . . . . . take, . . . . . . the court of common pleas of the proper county . . . . . . shall appoint . . . . . . viewers . . . . . . to determine [the] damages . . . . . . sustained, . . . . . . and to whom payable."
Appellants contend no authority is granted to a railroad company occupying a public road, to condemn land on which to reconstruct it; the proper procedure is in the court of quarter sessions, to vacate and supply the road. We cannot sustain this view. While it is true the highways of the State belong to the Commonwealth, the authorized power to interfere with them is the legislature, and those subagencies delegated by it. The legislature had ample power to permit a railroad company to occupy the bed of its highways. The Philadelphia Trenton R. R. Co., 6 Wharton 25, 44; O'Connor v. Pittsburgh,
The purpose for which the land is taken is a public one. The procedure to secure compensation is unquestionably due process of law, and the authority for the taking is definite and specific. Moreover, it is not necessary to outline a particular procedure in the authorizing statute when adequate reference is made as to where it may be found (Cleveland Pittsburgh R. R. Co. v. Speer,
Pennsylvania Railroad Company's App.,
There is not the slightest reason, — at least where (there being no intervening spaces in the owner) the land to be used for public road and railroad join, — why they should not be included in the same condemnation proceeding, as was done in Pitznogle v. Western Maryland Ry. Co.,
But in this proceeding the maps attached do not set forth either the center line of the highway, the proposed highway, or the quantity of land to be taken by metes and bounds. This is not a fatal defect, but it certainly must be remedied, so that the township authorities may know what land they may use for highway purposes. There is a very good reason why this should be done. If for any cause this strip of land is vacated by the public, title to it reverts to the owners. The easement of passage over a public road is very different from a railroad's use and occupancy of land acquired under condemnation proceedings. The necessity for an amendment to be filed setting forth on the various maps the metes and bounds of land taken for the public road is clear: Ferguson v. The Pittsburgh Shawmut R. R. Co., supra.
Are roads and streets laid out and dedicated to public use, and used by the public, established roads or ways, within the meaning of section 12, of the Act of 1849, P. L. 84? The act reads, "Whenever, in the construction of such road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the . . . . . . company so to construct the said road . . . . . . as not to impede the passage or transportation." The court below made findings of fact which apparently close appellants' contention. If these findings were material, *600 there was evidence to support them; but we do not see how the question can be raised in condemnation proceedings, for section 12 reads, they "shall . . . . . . so . . . . . . construct the . . . . . . road." The laying out of the road, adopting a route and taking property is not the physical construction of the road. What may or may not be done in construction raises independent and separate questions which, possibly under the Public Service Company Law, maybe referable to the Public Service Commission. At present, we hold the question unnecesary for our decision.
It follows that the decrees of the court below in the several cases must be affirmed; appellee is permitted to amend its description on the maps filed in this case, so that the land taken for highways may appear by courses and distances.
The assignments of error are overruled and the decrees of the court below are affirmed, the cost of printing the paper-books on this appeal to be paid by the appellee.
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