Pittsburgh, Ft. Wayne & Chicago Ry. v. Peet
25 A. 612
Pa.
1893
Check Treatment

Opinion by

Mr. Chief Justice Paxson,

This wаs an action of ejectment in the court below. The plaintiffs showed title to the locus in quo by certain deeds, and by proceedings to condemn it for railroad purposes. The defendants contended that if the plaintiffs did actually condemn the strip of ground in question, they cоuld not recover in ejectment for the reason that it did not acquire a#fee in the ground, but only an easement, and that ejectment will not lie for a mere right of way.

The vice of this argumеnt consists in treating the plaintiffs’ right as a mere easement or right of way. It is a great deal more than a right of way. It has ‍‌​​‌​‌​​​​‌‌‌​‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌‍the actual possession of the property, and that possession is exclusive, at all times and for all purposes, except where a way crosses it. Philadelphia & Reading Railway Company v. Hummel, 44 Pa. 375; Junction Railroad Company v. The City of Philadelphia, 88 Pa. 424. The estate acquired by a railroad company by a condemnation of land is often spoken of as an easement, but the term is used in a loose wajr for the purрose of distinguishing it from a fee. In the recent case of Pennsylvania Schuylkill Valley Railroad Cоmpany v. Reading Paper Mills, 30 W. N. C. 148, it was said by our Brother Mitchell: “Such title is sometimes called an eаsement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundatiоns, *493and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly invented interest in land the name of easement, perhaps appropriate enough to the railroad’s ordinary right of way for its tracks. It would seem to be rathеr a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroаd purposes. But, whatever it may be called, it ‍‌​​‌​‌​​​​‌‌‌​‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌‍is, in substance, an interest in the land special and exclusive in its nature, and which may be the subject of special injury by the obstruction of acсess to the abutting street, and, therefore, within the rule which governs the application of equitable relief. The right of exclusive possession includes the right of ingress and egress from the street, and, in this respect, the injury is exactly the same as to a tenant for life or for years, whose right to relief would be unquestionable, and is entirely different from the general right of the public to рass along the street.”

The appellants contend, however, that there was evidence from which the jury might have found that they had acquired title to the property in dispute by adversе possession.

Without discussing the evidence in detail it is sufficient to say that it fell short of making out a сase upon this point for submission to the jury. The proof consisted of detached ocсupations of portions of the property by different people. None of the рarties in possession held under the paper title, under which the appellants claimed. The evidence did not show that any of the people in possession ‍‌​​‌​‌​​​​‌‌‌​‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌‍were tenants оf those holding the paper title, nor was any attempt made to connect the onе with the other, or to show they were contiguous in point of time. At most, the evidence amountеd merely to a series of independent trespasses. In view of the evidence upon this рoint, we need not discuss the question, how far the title to railroad property may be acquired by adverse possession.

By the appellants’ second point the court below wаs asked to instruct the jury as follows: “ That there being no evidence in the case of any necessity for the use of the property in question, or of any interference by its present use with thе operations of the railroad company, the railroad company cannоt *494recover in an action of ejectment.” ‍‌​​‌​‌​​​​‌‌‌​‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌‍This point was properly-refused.

When a rаilroad company condemns land it is of necessity the judge of how much is required for its use. If this question were submitted to a jury in every case the right of eminent domain would be of little practicаl value. The company had a right, when it condemned the property, to regard and make provision for its future, as well as its present needs. This is settled law. It is sufficient to refer to Pittsburgh Junction Railway Company’s Appeal, 122 Pa. 530. If it condemns for future use land which it does not need at the time, thе nonuser ‍‌​​‌​‌​​​​‌‌‌​‌​​​‌​‌​‌​​​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌​‌​​‌‍of a portion for present purposes cannot be held to be an abandonment.

We are of opinion that under the evidence in the case the court below was justified in directing a verdict in favor of the plaintiffs.

Judgment affirmed.