54 Pa. 103 | Pa. | 1867
The opinion of the court was delivered, by
A parcel of ground adjacent to Prime street and Washington avenue was laid out into lots extending from Washington avenue up Clement street, leaving a strip four feet wide in the rear of the lots to be used by the lot owners as a passage out to Washington avenue. The deed conveying to Mrs. Ellen Williams one of these lots (No. 1023), granted also the free and common use, right, liberty and privilege of said four feet wide alley as and for a passage-way, and watercourse at all times hereafter for. ever, and subject to the payment of a proportionate part of the expenses of keeping said alley in good order and repair at all times hereafter for ever. The declaration of the plaintiff was in trespass on the case, alleging as the injury the construction of the defendants’ railroad track crossing the four feet wide alley, and obstructing Mrs. Williams’ right of way and watercourse. The track in question was a turnout and siding from the defendants’ main track on Washington avenue to their engine-house, built upon a lot of their own near Washing
It is argued also that the charter authorizes the taking of land
It is said this is not a case of consequential damages, the taking being direct, and that the charter provides for compensation to the owner of the land only. It is argued, therefore, that in the absence of a provision for compensation to the owner of the right of way, the taking is contrary to the 10th section of the 9th article of the constitution. This argument is founded upon the cases of Workman v. Mifflin, 6 Casey 371, and Voegtly v. Pittsburg, Fort Wayne and Chicago Railroad Co., 2 Grant 245, in which it was held that the owner of a ground-rent is not affected by a taking of the property, out of which it issues for a highway, and that he cannot as the owner of an incorporeal hereditament, petition for an assessment of damages. It is unnecessary to doubt or consider the authority of these cases, the difference between the rights of the owner of a ground-rent being so clearly distinguishable from those of the owner of a right of way and watercourse. It is true that they are alike in the fact that they are incorporeal hereditaments but in nothing else : a ground-rent issues out of land and is charged upon it, but it has no particular situs upon it, and requires no use of it for its enjoyment. It is incapable of being taken or obstructed. It is a pecuniary burden only, the only ligament between the tenant and ground landlord being the reservation or covenant for its payment. Having no connection with the soil, it remains totally untouched by any use the railroad company can make of it. Apportionment of the rent, because of the taking of the land, is solely an equity arising between the tenant and the landlord. Hence the conclusions drawn in the cases referred to.
But the nature of a private right of way is different. A way has its defined route upon the land itself. Ex vi termini it imports a right of passing in a particular line. Washb. on Easement, ed. 1863, p. 160. It carries all rights to the use of the soil which are properly incident to its enjoyment. For instance, the grantee of the right of way over such an alley in a city may enter and pave and repair it: Id. 190, 196, 198, 199. The deed in this case expressly subjects the grantee to ber proportion of
The judgment is reversed, and judgment is now entered for the defendants below upon the point reserved.