262 Pa. 493 | Pa. | 1919
Opinion by
This was a proceeding to assess the damages on account of land taken for railroad purposes. Barbara
Her original petition described the land affected by the right-of-way as 3.65 acres, which merely included that occupied by defendant, but after the appeal from the viewers’ report the trial court permitted plaintiff to amend the description by adding that it was a part of a larger tract (described in the amendment) including in all 8.25 acres. This did not introduce a new cause of action as plaintiff’s claim was still based on the appropriation of the same land, but corrected the pleadings so as to enable the jury to assess the damages on the true basis of the difference in the market value of the tract as
The entry of the railroad company in 1882 was admittedly pursuant to the deed from the life tenant and valid as against him, but conferred no rights as against his children, who owned the fee, nor did the statute of limitations run against them during his life: Gernet v. Lynn, 31 Pa. 94; Wolford v. Morgenthal, 91 Pa. 30. While the life estate continued, the heirs of Barbara Shaffer were not affected by defendant’s occupation of the farm, nor prevented from making partition thereof; but, as the right of defendant therein ceased at the death of the life tenant, plaintiff might have brought ejectment against the railroad company for so much of the 8.25 acres as it then occupied: Pittsburgh & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Richards v. Buffalo, Etc., R. R. Co., 137 Pa. 524; or she might as she did waive the tort and have viewers appointed to assess the damages.
Where land is taken for public use the title of the owner is not divested until his damages are paid or secured: Speer v. Monongahela R. R. Co., 255 Pa. 211; Johnston v. Delaware, L. & W. R. R. Co., 245 Pa. 338; Wheeling, P. & R. R. Co. v. Warrell, 122 Pa. 613. And the damages belong to him who owns the land when the servitude is imposed upon it. Here as to plaintiff the servitude was imposed when the viewers were appointed: Williamsport, Etc., R. R. Co. v. Philadelphia, Etc., R. R. Co., 141 Pa. 407; Heilman v. Union Canal Co., 50 Pa. 268;
As the heirs were minors without guardian at the time of the original entry, no inference of their acquiescence can be drawn; so far as relates to them, it cannot be treated as an entry with the owner’s consent. And, during the continuance of a life estate, those holding the remainder are not bound to notice a possession taken and continued by virtue of a conveyance from the life tenant. See Railroad v. Boyer, 13 Pa. 496, 500.
As the trial court disposed of the case according to the views herein stated, the assignments of error are overruled and the judgment is affirmed.