247 Pa. 560 | Pa. | 1915
Opinion by
Noah Scott was the owner of several tracts of land in Addison Township, Somerset County, Pennsylvania, and on December 10, 1889, conveyed cértain of those tracts to Lytle and McCune, the predecessors in title of the plaintiffs. The land conveyed by this deed was east of and adjacent to the Robert A. Taylor tract of land-, owned by Scott, over which he granted in the deed a right of way in the following language: “And a further right of way to continue for the period of forty years is hereby granted and conveyed to the said parties of the second part, their heirs and assigns, through the Robert A. Taylor tract of land in Black Township, Somerset County, Pennsylvania, said right of way to be confined and limited to the old tramroad bed upon said tract.” The Taylor tract lies along the Casselman river at the mouth of Iser’s run and the lands conveyed to Lytle and McCune were above the Taylor tract on the run and its tributaries. It seems that from the time of the conveyance by Scott to Lytle and McCune the right of way over the Taylor tract was used for the transportation of lumber and other materials from the lands of the plaintiffs to the Baltimore and Ohio Railroad on the western bank of the Casselman river. There was a tramroad on the right of way extending across the Taylor tract to the Casselman river, thence across the river to a connection with the Baltimore and Ohio Railroad at Markleton. The learned court below finds that there was a narrow gauge road along the tramroad and that later a third or additional rail was placed outside the narrow gauge thereby constituting the road a standard gauge. It is not clear from the court’s findings, whether the narrow gauge and, subsequently, the standard gauge were ad
In 1910 the Connellsville and State Line Railway Company, the defendant, constructed its road on the east side of the Casselman river and over and across the Taylor tract of land. It obtained permission of the Enterprise Lumber Company, claiming to be the owner of the right of way in question, to occupy and make a fill on the right of way in the construction of its road. In September, 1912, the plaintiffs filed this bill praying for an injunction to restrain the defendant railroad company from interfering with or closing the right of way over the Taylor tract. Subsequently the defendant railroad company filed its bond in the Common Pleas, and instituted condemnation proceedings to appropriate the interests of plaintiffs in that part of the right of way in question occupied by the railroad in crossing the way. The learned court below held in the condemnation proceedings that the railroad company had the right to condemn any interest the plaintiffs had in the right of way over the Taylor tract of land, and approved the bond filed by the company. In view of its conclusion in the condemnation proceedings, the learned court below dismissed the bill in the present case, holding that the plaintiffs were relegated to their claim for damages for any injuries sustained by the appropriation of the right of way by the railroad company. The plaintiffs have taken this appeal.
The plaintiffs claim to be the owners of the right of way over the Taylor tract, and contend that it is within section 12 of the Act of February 19, 1849, P. L. 79, which provides: “Whenever, in the construction of such road (railroad) or roads, it shall be necessary to cross .or intersect any established road or way, it shall be the .duty of the president and directors of the said company, so to construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same.” The single
There is a dispute as to the title to the right of way. The defendant railroad company claims that it acquired from the owners the right to cross and occupy the right of way, while the plaintiffs claim that the title is in them. The question, however, is unimportant and immaterial in this proceeding in view of our conclusion that the railroad company has authority to appropriate the crossing under its right of eminent domain.
We concur in the result reached by the learned court below that the defendant company can condemn for railway purposes the right of way in question, and that it is not within the meaning of section 12 of the general railroad Act of 1849 requiring the company so to construct its railroad as not to impede passage along the way. Lands and the estates, rights, interests and easements in, or appurtenant thereto, may be taken under the power of eminent domain: 2 Lewis Em. Dom. (3d Ed.) Sec. 412. The general railroad Act of February 19, 1849, P. L. 79, by section 10 authorizes the officers of a railroad company to locate and determine such route for their road as they may deem expedient, with certain noted exceptions, and thereon to construct a railroad between the points named in the special act incorporating such company. A railroad company incorporated under the act has implied authority not only to appropriate private rights of way but to cross highways or streets: 2 Lewis Em. Dom. (3d Ed.) Sec. 430. Section 12 of the act, however, as noted above, imposes the duty on the company in constructing its road over any “established road or way” to do so in such manner as not to impede the passage of persons or property over the
While the question raised by this record has not been directly adjudicated in this State, we have recognized the principle involved in more than one of our cases.
Turning to the right of way granted by Scott to Lytle and McCune, it will be observed that it is not a passage or roadway used by the owner for the purpose of securing access from one portion of his farm to another but is, as it necessarily .must be, a way over the lands of an-
Decree affirmed.