50 Pa. 425 | Pa. | 1865
Thé opinion of the court was delivered, by
In most cases in which the Commonwealth has appropriated the land of a private owner for a public highway, it has not attempted to take the fee simple. The Road Laws generally contemplate no more than fastening a servitude upon the land and devoting it to public use as a highway. A right of passage is all that is taken, while the fee is left undisturbed in the private owner. Hence when the public right of passage is given up, the servitude of the land is gone and the owner holds it disencumbered of the public right, and as if the Commonwealth had never interfered with his enjoyment of it. It is not to be overlooked, however, that this is because the Commonwealth made at first but a partial appropriation. If in any way the title of the owner has been acquired by the public, if the Commonwealth has purchased the fee, or taken it through the exercise of its right of eminent domain, and if then the land has been devoted to public use as a highway, a cessation of that upe can revest nothing in the former owner. His rights are gone and he cannot resume possession. It is then a fundamental inquiry in this case, what was the extent of the appropriation made when the Commonwealth took the land in controversy between these parties. Was it a mere right of passage that was taken, or was it the ownership of the land in perpetuity ? It is very evident from the Act of Assembly of February 26th 1826, entitled “ An act to provide for the commencement of a canal, to be constructed at the expense of the state and to be styled£ The Pennsylvania Canal,’ ” that the purpose of the legislature was to secure the acquisition, in absolute ownership, of .the lands through which the canal was intended to pass, so far as those lands were designed to be actually and per
The Act of 1826 was followed by that of April 9th 1827, which made some changes in the mode of ascertaining damages. It authorized the owner of land considering himself aggrieved by the passage of a canal through his land, to present his petition to the Court of Quarter Sessions of the proper county within one year after the completion of the work, and it directed the appointment of five viewers to view the premises and report such damage, if any, as they or any three of them should think the owner had sustained by reason of said canal, taking into consideration the advantages of said canal to the petitioner. This act also empowered the board of canal commissioners to make an amicable adjustment of any damages whatever, sustained by the owner or owners of any land through which any canal or railroad, to be made at the expense of the state, passes or is intended to pass ; a provision not found in so large terms in the Act of 1826. There is no direct reference in this second act to the estate or quantity of
It is argued, however, by the plaintiff, in this case, that the Commonwealth did not acquire ownership in perpetuity of the land now in controversy, because that when the viewers made their valuation and assessment, they did not ascertain and describe the quality and duration of the interest and estate in the same, required by the board of canal commissioners for the state. This, it is said, was made their duty by the Act of 1826, and it is insisted that, they having failed to report a perpetual duration of the estate, the Commonwealth acquired only an easement to continue while the land taken should be used by the canal. This argument sacrifices,substance to form. It leaves out of view the declared purpose of the Act of 1826, to which a description of the quality and duration of the estate required Avas manifestly subordinate, and it overlooks the change wrought by the Act of 1827. Under the Act of 1826, in all cases where, in consequence of disagreement between the canal commissioners and the owner or owners of land, a view and an assessment became necessary, the legislature contemplated no other acquisition of title to land intended for permanent occupancy than an estate in perpetuity. The viewers were not left at liberty to value a less interest in such lands. They might assess damages for so much as was intended
It is urged, that if a fee is acquired great injustice may be done to owners of lands by an abandonment of the canal or a change of its location, thus depriving owners of the advantages which the jury were required to take into consideration in assessing the damages. This may be admitted unless the viewers considered also the possibility of such abandonment or change. Perhaps it ought to be presumed .they did take into account such a possibility, but if not, the injustice, if any, is chargeable to the Acts of Assembly. It is remediless by us.
The other question raised by this writ of error relates to the effect of the license given by the canal commissioners to Jacob M. Haldeman, the father of the plaintiff, on the 9th of January 1883. By resolution of that date the board permitted Jacob M. Haldeman to construct a wharf on the berm side of the canal, by excavating twelve feet back into his lot from the water-line of the canal adjoining the property now in dispute, the wharf not to be less than eighty-five feet long, and to be constructed under the direction of the principal engineer of the division. The wharf was accordingly constructed, and it was in use until after the defendants purchased from the Commonwealth and until the location of the canal was changed. In reference to this state of facts, the court instructed the jury that neither the original permission to erect the wharf, nor its subsequent occupation and enjoyment, could divest the estate of the Commonwealth, which could reclaim the land when it thought proper, as it had bought and paid for it in fee simple, provided it was within the line of survey reported by the viewers. Of this instruction the plaintiff complains. But if the title to the fee was in the Commonwealth when the permis
The other assignments of error are only repetitions of those we have considered, and they require no other notice.
The judgment is affirmed.