5 Watts 546 | Pa. | 1836
It was decided in M’Clennehan v. Curwin, 3 Yeates 362; 6 Binn. 509, that the commonwealth, by virtue of the original grant on all warrants and surveys of land of six per cent, additional for roads, &e., could confer, and by the act of the 9th of April 1792, did confer, upon the Philadelphia and Lancaster Turnpike Company the right to dig up the soil on the track of that road, for the purpose of constructing it, without compensation to the owner for the damage sustained in consequence of his land being taken for the road. The sections of that act on the subject, correspond with those in the act of the 18th of March 1816, incorporating the Robbstown and Mount Pleasant Turnpike Company, with the addition, in the latter, of the proviso, usual of late in turnpike acts, that if the owner suffered damage by the road passing over his land, he might, within one year, apply to the court of quarter sessions, who should appoint three disinterested freeholders to assess the damage sustained by reason of the road passing over the same, making allowance for the advantages. This makes the case stronger against the plaintiff, as he has received, or might have received compensation in (he manner prescribed by the act. This company is authorized and required not only to make the road, but to maintain and keep it in order: and has a right, therefore, to use so much of the earth and materials of the soil, within the tract of the road, as-is necessary and adapted to that purpose, not only in the original construction of the road, but in the repairs necessary to be made from time to time: for they stand upon the same footing. Subject to this right the soil remains in the plaintiff. This road, it seems, led originally to the river edge, but when the bridge was subsequently built, there could be no access from the road to and across the bridge without elevating that part of the road adjoining it; and to do this the Turnpike Company authorized the Bridge Company, as their agents, to dig earth, stones and gravel within the width of the sixty feet. This we think they had a right to do, under the act of assembly, as a necessary means of keeping up and maintaining their road in good order for the use of the public; and that, therefore, the judgment of the court below was right.
Judgment affirmed.
