255 Pa. 211 | Pa. | 1916
Opinion by
This is an appeal from the judgment of the court below, rendered after verdict upon the trial of an appeal from an award pf viewers appointed to assess damages resulting from certain steps taken by the defendant company in partial exercise of its right of eminent domain.
It appears from the record that, on January 3, 1901, Charles E. Speer was the owner of the undivided two-thirds of a tract of land in Fayette County, containing some 537 acres. His wife, Sarah Dawson Speer, was the owner of the other undivided one-third of the land.
The trial judge affirmed a point presented by counsel for plaintiff, which assumed that the right to damages had vested in the owners of the property at the time of the location of 1901, and refused the following point, presented by counsel for defendant: “It appearing that, before any action had been taken by the Court of Common Pleas, upon the petition for the appointment of viewers, and on May 7,1912, the board of directors of the defendant company, by resolution duly adopted, abandoned the location of 1901, without having entered upon the land for the purpose of constructing its railroad, and without having tendered or filed any bond or bonds to secure the damages to the landowner the railroad company had the right to abandon its location and your verdict should be for the defendant.” -
The refusal of this point is made the subject of the third assignment of error, and the fundamental question in this appeal is thereby raised. That question is, whether the railroad company, after adopting and locating its line, had the right to abandon the route, before any entry upon the land had been made for construction purposes, and prior to the filing of a bond to secure the payment of damages. If the railroad had at that time the right to abandon the location, there was no basis for these proceedings, and the discussion as to whether the proper parties acted, becomes immaterial.
In the exercise of the power of eminent domain by municipal corporations, the right to discontinue has been liberally sustained. In Funk’s Admrs. v. Waynesboro School Disk, 3 Sad. 177, 18 W. N. C. 447, we held as set forth in the syllabus: “In proceedings for the taking of
In Wood v. Trustees of State Hospital for Insane at Warren, Pa., 164 Pa. 159, it was held that, after posses
In Fischer v. Catawissa R. R. Co. and Philadelphia & Reading R. R. Co., 175 Pa. 554, it was held that after a railroad had filed its bond in condemnation proceedings and had entered into possession, it was too late to discontinue. Mr. Chief Justice Sterrett said (p. 558) : “The effect of the proceedings deliberately instituted by one of the defendants, including the approval and filing of the bond, appointment of viewers, etc., was to divest plaintiff’s right of the possession of the land taken, and remit
We know of no case in this State, where the land has not been actually occupied, in which it has been held that a railroad may not abandon a right of way, if it chooses to do so, before compensation has been paid, or secured by the filing of a bond.
Our constitutional provision clearly makes the payment or securing of compensation the turning point in the transfer of title. Article XYI, Section 8, of the Constitution of Pennsylvania, provides that “Municipal and other corporations and individuals invested with the privilege ofv 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.......”.
Until compensation is paid or secured, no title vests in the condemnor. If it enters upon the land for the purposes of construction before compensation has been made or secured, it is a trespasser and as such may be enjoined from proceeding. “Before payment or security, it is clear that the entry is tortious and not rightful”: Western Penna. R. R. Co. v. Johnston, 59 Pa. 290. The remedy for an entry by a railroad company upon land, without the consent of the owner, and without making compensation, or securing its payment, is by an action of trespass, and not by petition for the appointment of
In Fries v. Southern Penna. R. R. & Mining Co., 85 Pa. 73, it was said (p. 75) : “The security being given in due course of law, the grasp of the owner upon his property is loosened by the Constitution itself.” It is evident that until the security has been given, the grasp of the owner is not loosened, and the title to his property remains in him. In Williamsport & North Branch R. R. Co. v. Philadelphia & Erie R. R. Co., 141 Pa. 407, it was pointed out that three successive steps are contemplated by the Act of February 19,1849, P. L. 79, and subsequent legislation, in order to vest title to the roadway in the corporation. These are: (1) A preliminary entry on the lands of private owners for the purpose of exploration. (2) The selection and adoption of a line for the location of the proposed railroad. (3) “Payment to the owner for what is taken, and the consequences of the taking, or security that it shall be made when the amount due him is legally ascertained. The title of the owner is not divested until the last of these steps has been taken: Levering v. Philadelphia, Germantown & Norristown R. R. Co., 8 W. & S. 459; McClinton v. Pittsburgh, Ft. Wayne & Chicago Ry. Co., 66 Pa. 404; Dimmick v. Brodhead, 75 Pa. 464; Buffalo, N. Y. & Philadelphia R. R. Co. v. Harvey, 107 Pa. 319; Gilmore v. Pittsburgh, Va. & Charleston R. R. Co., 104 Pa. 275. As against him, the corporation can acquire only a conditional title by its act of location, which ripens into an absolute one upon making compensation.” Of course, a railroad company, after the right of way has been located by its directors, upon preliminary surveys, may agree with the landowner as to the amount of the damages, and, when they are paid, the title vests at once in the company: Templeton v. Wilkes-Barre Coal Co., 50 Pa. Superior Ct. 341. Doubtless, also, the landowner may waive the filing of a bond, and permit the proceedings for the assessment of damages to go on. In such case, payment of the dam
While there is diversity in the practice in the various states, with respect to the right to discontinue proceedings in eminent domain, before completion, it is stated in 30 Amer. & Eng. Anno. Cases, 1062, that “In the absence of a statute fixing the time when a discontinuance may be had, the general rule is unquestioned that an eminent domain proceeding may be discontinued at any time before the rights of the parties have become reciprocally vested.”
We are, therefore, of opinion that, as in this case there was no occupancy of the land by the railroad, and no entry thereupon by it for purposes of construction, and as the location was formally abandoned before viewers were appointed to assess damages, and before any bond had been filed to secure payment of compensation, title to the land did not pass to the railroad, no reciprocal right to damages became vested in the landowners, and there was no right of recovery in this proceeding.
The first, second, third and fourth assignments of error are sustained, and the judgment is reversed.