Lafferty v. Schuyl. River R.
16 A. 869
Pa.
1889
Check Treatment

Opinion,

Mr. Justice Williams :

When a railroad company locates its line of road over the lands of private owners it secures thereby a right to enter upon and occupy the land covered by such location. The actual entry cannot be made until the damages accruing to the owner shall be paid or secured, but the means for ascertaining the damages are provided by law, where the parties cannot agree upon them, and the owner cannot prevent the exercise of the right of eminent domain by the company. But while the owner has notice, by the location of the road *302over Ms lands, of the purpose of the company to appropriate so much as the line of the road covers, he has no notice of the time when actual possession will be required. He may doubtless abandon the land covered by the line as located to the company, and proceed to have his damages assessed; or, he may wait for the company to take the initiative and ■ continue meantime to occupy and cultivate it. If he takes the latter branch of the alternative, the crops planted after the location and before notice or bond given by the railroad company, are proper subjects for compensation.

The reason'for this is that it may be months or even years after the location of the line before the company will be ready to enter upon the land for purposes of construction or to take the steps necessary for the assessment of damages, and the owner has a right to remain in possession until actual appropriation of his land by the company. This was held in Gilmore v. Railroad Co., 104 Pa. 275, and has been recognized in other cases. If therefore Krider had made no lease of his land but continued to cultivate it himself, he would have been entitled to claim damages, as well for the loss of growing crops as for the injury done to the land, provided the crops had been planted before bond given or notice of an intent to enter upon the construction of the road. But Krider made a lease to Lafferty, and the tenant planted the crops that were destroyed. He had notice of the fact that a line had been located over the land. The court so found and we think the evidence was sufficient to justify the finding, but it is not alleged that he had any notice of the time when the company intended to make an actual entry. So far as he had notice he was of course affected by it,, and he cannot now be heard to complain that the value of his term has been diminished and his just expectations disappointed by a circumstance of which he had full notice and which his lease shows had been considered before he executed it; but, being without any notice of the time when his possession would be interfered with, lie had the same right to occupy and cultivate that his lessor could have exercised if the lease had not been made. The lease transferred the possession, with the attendant right to cultivate, from the lessor to the lessee, and the right to be paid for an injury done to growing crops passed with the right to plant them. When *303the railroad company made their entry upon the land, they found Lafferty in possession and his crops in the ground. They were fixed with notice of his lease by his possession, and they could not discharge their liabilitj’- to him by payment to bis landlord.

This branch of the plaintiff’s claim seems to have escaped the attention of the court below, and for this reason only,

The judgment of nonsuit must be reversed, and a venire facias de novo awarded.