Pittsburgh & Lake Erie Railroad Company v. Bruce

| Pa. | Jan 2, 1883

Mr. Justice Gordon

delivered the opinion of the court, January 2d 1883.

This case was well tried in the court below, and to the opinion of the learned judge we can add but little beyond our approval.

Corporations take those powers which are conferred upon them by the legislature and nothing more. Again, the charter of a corporation must be construed liberally as to the public, and strictly as to the grantee. Commonwealth v. the North East Bail road Co., 3 Ca. 339. The plaintiff in error, however, inverting this rule, would have us construe its charter in such a manner as to give it not only such rights as are therein plainly granted, but also such as may be raised by a forced construction of that instrument. This, we need scarcely say, cannot be done, It would be such an exercise of judicial charity in favor of a corporation, as has not yet found place in the courts of Pennsylvania.

This whole case is determinable by the solution of a single proposition, which is this; if the Pennsylvania & Ohio Canal Company took, under its charter, a fee in the land of Thomas Bruce, then the judgment of the court below was wrong and must be reversed; but if it took but an easement that judgment was correct and must be affirmed. But when we come to examine the act of incorporation we find no trace of the power, as claimed by the defendant, to take, by the exercisé of the right of eminent domain, an absolute estate in land. “ That for the purpose of assuring to the corporation,” reads the act, “ all the lands, real estate, waters and materials, requisite for most economically constructing and maintaining said canal and the works connected therewith, and incident and necessary to the navigation of the same, whenever the said lands, waters and materials shall not be attained by voluntary donation or fair purchase, it shall be lawful for said corporation, by any of their officers, and each and every agent, superintendent or' engineer by them employed, to enter upon, take possession of and use all such lands, real estate and streams as may be necessary for the purposes aforesaid.”

Herein we find a power to take and use such lands, waters and materials as may be necessary to construct and maintain the proposed works, but in this there is no grant of a right to take the fee in land thus occupied, on the contrary that right is confined to use and occupation only, unless it be enlarged by the deed or gift of the owner. There was, then, in this company but a possession and use, in other words, a right of way, and that for a single purpose, the construction and maintenance of a canal, and when the canal was abandoned the use and occupation of the land reverted to the owner of the fee: Jessup v. Loucks, 5 P. F. S. 350. It follows the possession having thus revested in the owner he may maintain any action that is necessary to regain his rights ór to protect his property : Ridge Turnpike Co. v. Stoever, 6 W. & S. 379.

If further argument were needed to fortify this position, it might be found in the fact that in the act not one word is discoverable which gives damages to the-owner of .the land for the taking of the fee. On the other hand, the commissioners who were to be appointed to make the assessments were to be confined to “ such - damages as they think any person will sustain, or have sustained, by the opening of the'said danah through his or her lands, or by the construction of embankments, reservoirs, &c. or for 'any materials used in the construction thereof or from the diversion of water.” But if compensation was not allowed for the taking of the fee in the land no such fee could be taken. This company, as we have already seen, had the right to take and hold lands in fee, but such taking must be by gift or purchase and not by the right of eminent domain; that right extended not beyond a use and occupation, and we cannot agree to enlarge it by implication.

But it is urged, that, by the act of the legislature, the Pennsylvania & Ohio canal was made a public highway, and that therefore the state had the undoubted right to grant the use of that highway to the present corporation, and that without compensation to any one. But this proposition is founded upon a premise that will not bear scrutiny. In the first place, this public highway belonged toa private corporation, and it was public only in this, that the public had the right to use it by paying the tolls which the company might see fit to charge. It was a public highway in the sense that a tavern is a public house. Any one might float a boat over the one, under the same conditions that he might stop at and demand entertainment in the other, that is, by paying the proper charges. Thus, whilst the canal company held its franchise subject to a qualified jmblie right, yet its navigable way was its own property, and was by no means like a common road or street over which the commonwealth has the exclusive control, and which it may devote to corporate uses. Without the consent of the canal company the state could not, in the absence of provision -for compensation, have appropriated this canal to the use of another company, any more than it could so appropriate the property of a private person. It is thus made patent that the attempt to bring this case within that class of cases, in which is recognized the right of the commonwealth to authorize'a railroad to lay its track on a common road or street, cannot be sustained. In the second place, it was only as a canal that the improvement of the Pennsylvania & Ohio Company could be regarded even as a quasi public highway. It was to the canal that the legislature gave that character, and to nothing else, and when it was abandoned as a canal its character as a highway went with it.

We may here add, in order to avoid all mistakes and misapprehensions, that the defendant may secure a right of way, and save the work and property which it has put upon the plaintiff’s land, by having an assessment of damages as provided by law, and if the plaintiff should refuse a stay of execution until that can be accomplished, the court below, on application, may, for that purpose, interpose its injunction : Justice v. The Nesquehoning Valley Railroad Co., 6 Nor. 28.

The judgment is affirmed.