22 Pa. Super. 506 | Pa. Super. Ct. | 1903
Opinion by
This is an appeal by the Postal Telegraph Company from the judgment of the court of common pleas of Wayne county at No. 65, May term, 1901. The proceeding was instituted on April 8, 1891, by the appellant presenting its petition asking for the appointment of a jury of view to assess the damages done or likely to be done to or sustained by Mary E. Shevalier et al., by reason of the location and construction of its line of electric telegraph along and upon the public road, passing through the lands of the said Mary E. Shevalier. The petition presented by the appellant set out that their telegraph line passes along and upon the public highway adjoining the lands of and, in the cases hereinafter mentioned, across the lands of George Roberts, Mary E. Shevalier, William Guinnip, M. Calkins, William Huber, Moses Dexter, Thomas Dexter and C. N. Decker and Martha Decker, his wife, life tenants, and Floyd Decker and Mortimer Decker, Grace Decker, Cornelius flecker and Elizabeth Decker Toms, children of the said C. N. Decker and Martha Decker, remainder-men in fee, owners or reputed owners of the said lands in the township of Damascus. The petition referred to the lands of six several persons who were made plaintiffs in as many actions against the appellant. All of these cases were put at issue and tried in the court of common pleas of Wayne county, and verdicts and judgments recovered in favor of the landowners. The cases are appealed to Nos. 26, 27, 28, 29, 30 and 31, January term, 1903, and were all argued together, and this opinion applies to all of them. The record shows that the first steps taken by the appellant for the condemnation of its right of way and the assessment of the damages was by the filing of a bond in favor of each landowner on February 2, 1901, and this was followed by the petition mentioned on April 8,1901. The appellant appealed from the reports of viewers and issues were framed and jury trials had in each case. The appellant actually constructed its telegraph line through the lands of the several plaintiffs in 1883, without making compensation or tendering the same and without filing any bond or security to any of the landowners for the damages caused or to be caused by the location of the telegraph line. It thus appears that from 1883, until February 2, 1901, the appellant was a trespasser pure and simple as against
It does not appear that any action or actions were ever begun by anybody against the appellant for the recovery of damages for the construction of the telegraph line through these lands prior to the commencement of these suits by the petitions filed by the appellant. It is not pretended that any assignment or transfer of the claims for damages caused by the unlawful entry upon the lands by the appellant were ever made to the appellees or anybody else. Article 16 section 8 of the constitution declares “municipal and other corporations and individuals, invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.” In Gilmore v. Pittsburg, Virginia & Charleston R. R. Co., 104 Pa. 275, it was said by the Supreme Court in an opinion by Mercur, C. J., on page 280: “ Until actual payment of the damages, or security given for their payment when ascertained, the corporation has no right to construct or enlarge its works on private property, nor to injure or destroy the same. By so doing before payment made or security therefor given, it becomes a trespasser; and an action of trespass will lie against the party entering on the land, although the security be afterward given; .... or if permanent possession by the laying of rails be thus illegally taken, the owner of the land can maintain ejectment to recover possession thereof.” This case is cited and recognized in Williamsport, etc., R. Co. v. Phila., etc., R. Co., 141 Pa. 407. On page 415 of this ease it is said : “ The title of the owner is not divested until the last of these steps has been taken, i. e.,
In Heilman v. Union Canal Co., 50 Pa. 268, the doctrine we have stated or very near it was held by the Supreme Court. In that case the company had enjoyed the right to take water by arrangement with several prior owners, but in 1857 they first ■made a permanent appropriation of the water without a purchase. At that time Heilman- was the owner. It is for that appropriation the proceedings were awarded, and Judge Strong said on page 275: “ In our opinion it was rightly awarded, for down to 1857 there had been no appropriation under the power granted by the commonwealth, and, for injury done since, there had been no compensation paid, or secured to be paid by contract. Had the company in 1834 bought. a right to use the water for twenty-three years and no longer, it could not be doubted that continuing to use it after the expiration of the term, without an extension of the contract, would be an injury to the person who was the owner when the unauthorized use began, and that then an assessment of damages became his right. Such is in substance the present case. Heilman was the owner when the water was appropriated, within the meaning of the act of assembly.”
In McClinton v. Pittsburg, Fort Wayne & Chicago Railway Co., 66 Pa. 404, the Supreme Court in an opinion by Agnew, J., said on page 409] “ The owner’s right to damages for trespass
For redress of the injuries resulting from this invasion of the plaintiff’s rights, he had, of course, his remedy by an action of trespass; citing several authorities. The effect of the subsequent statutory proceeding to assess damages was to divest the title as of the date of filing the bond. In the action of trespass, if one had been brought, the plaintiff would have been entitled to recover damages for the tortious entry, and for any injuries he suffered from that date until the title of the right of way was vested in the company, not as these injuries affected the value of the land, but the enjoyment of it; whereas, in the proceeding to assess damages under the statute, the measure of damages would be computed upon the value of the land, unaffected hy the obstruction of the plaintiff’s road, and its value as affected by it. The action of trespass is for the recovery of the damages accrued in the past, whilst the assessment under the statute is for the price of a permanent right or privilege to he enjoyed in the future; but that price must he settled upon a consideration of the value of the land at the time of its lawful appropriation, as it was or in the condition it was before the railroad was constructed, and its value after-wards.”
The learned judge then argues that although the damages are to be computed as of the date of the divesture of the plaintiff’s title to the right of way, yet it is plain that the land must be valued in the first instance, free from the obstructions of the plaintiff’s road, and in the condition in which the defendant company found it upon their first entry. From the latter doctrine in this and kindred cases the learned counsel for the appellant argues that the court erred in excluding their offers of testimony as to the condition of the appellee’s lands at the time of the original tortious entry by the telegraph company. Indeed they argue that the inquiry was confined to this time. The latter is clearly erroneous, but it must be conceded that in the case of the construction of a railroad, the doctrine of this case does hold that evidence as to the condition of the land at the time of the wrongful entry was competent. But we think a wide difference exists between the case the learned
The learned court below in disposing of a motion for a new •trialin one of the cases said: “The rule which seems to us to be deducible from the cases is this: where the entry is not tortious, or where under a tortious entry the occupancy has become lawful by agreement of the parties or otherwise, before conveyance of the landowner, the damages belong to him and do not pass to his vendee, and should be assessed as of the date of the original entry. But where the entrj’ and occupation are unlawful, and no steps have been taken to fix the damages for permanent occupancy, the grantee, in possession, of the person who owned the land at the time of the unlawful entry is entitled to the damages from the inception of
Another question raised by the assignments of error is that in any event the plaintiffs below were only entitled to nominal damages for the reason that the telegraph line was constructed along the highway. If there had been no evidence except a concession of the ownership of the land by the plaintiffs, and that the telegraph line was constructed in the highway, we think this would have been the correct rule, but in these cases a large number of witnesses were sworn who testified to the value of the land unaffected by the telegraph line and as affected by it, and the amount of damages fixed by the jury is within this testimony. Such being the case, it would have been error for the court to have limited the recovery to nominal damages.
The fifth assignment of error is as follows: “ If he is entitled to recover, he would be entitled to recover as of that date, the first of February last; to that should be added interest, not as damages, but by way of compensation to him down to this, finding’ a verdict for the whole sum.” It must be held that this instruction, which in substance was given in each case, is a technical error. The jury should have been instructed that they might add such stun to the damages as in their judgment would compensate for the delay in paying it, not to exceed legal interest, and that it might be as much less as they saw fit to make it. The vice of the above instruction was to give the jury a binding instruction to add legal interest to the sum of the unliquidated damages which they should fix by their verdict: Richards v. Citizens’ Natural Gas Co., 130 Pa. 37. This
Judgment reduced nunc pro tunc, as of December 7, 1901, to $464.25, and thereupon judgment affirmed.