229 Pa. 521 | Pa. | 1911
Opinion by
One of the plaintiff’s predecessors in title gave a railroad right of way through the farm referred to in this case. Subsequently, on May 15, 1897, a conveyance in fee was made to the defendant of the land covered by this right of way and of an additional strip bordering its eastern side, reserving two farm crossings or causeways across the railroad tracks. After this, in October, 1906, in order to widen its roadbed again, the defendant condemned a strip of land running along the western side of the original right of way, and in making this last improvement it destroyed the two causeways. Viewers appointed to assess the damages arising from this widening made an award of $1,800, from which the defendant appealed. The pleadings on the appeal show a claim for the destruction of the two causeways, and the jury was instructed that the condemnation involved the taking of these crossings. After receiving a verdict of $1,900, the plaintiff filed a petition asking for the appointment of viewers to assess damages against the defendant for its failure and refusal to give him another causeway.
The plaintiff cites the recent case of Davis v. Penna. R. R. Co., 43 Pa. Superior Ct. 119, and contends thereon that, the petition being in due form and averring the necessary jurisdictional facts, the court was bound to appoint the viewers and the refusal so to do constituted reversible error. That case was decided sometime after the present one, and, so far as the record shows, the point now contended for was not raised or passed upon in the court below. However, the two cases are quite different. In the Davis case the petitioner alleged that his property had been divided by the railroad and that the defendant had refused to give him a causeway. The answer denied the refusal and averred that the defendant had constructed a crossing for the use of the plaintiff. Depositions were taken, the issue of fact was decided by the court in favor of the defendant, and the prayer of the petition was refused. On appeal the Superior Court held that viewers should have been appointed to pass upon the disputed question of fact. Here the material
The failure to extend a farm crossing previously maintained amounts to the destruction of an easement appur-. tenant to the land appropriated, and constitutes .an element of damage in a proceeding under the act of 1869: Lilley v. Pittsburg, etc., Ry. Co., 213 Pa. 247; Lilley v. Penna. R. R. Co., 219 Pa. 447. In the present case the plaintiff claimed damages because of the defendant’s failure to extend two such crossings. The petition shows a proceeding already had “to recover damages for land taken and damage done to said farm,” without any averment that the damages for the destruction of the causeways in question were not adjudicated in this prior proceeding. The answer supplements the petition and avers that the destruction of these causeways was considered as an element in the other proceeding and that damages therefor were adjudicated and awarded to the present plaintiff. “An answer is not made any the less responsive by the setting forth of all of the facts, though some new matter may be introduced thereby:” Fidelity Title & Trust Co. v. Weitzel, 152 Pa. 498. But the question is, could the responsive averments of this answer be taken as evidence in passing upon the petition?
Where in a statutory proceeding the initial step is assimilated to a proceeding in equity, the subsequent pleadings, in the absence of directions to the contrary, are subject to the rules of equity practice. According to present practice, if any matter alleged in the answer makes it necessary the plaintiff may amend his bill, or he may join issue by a general replication; and where no replication is
As the plaintiff has already claimed and been awarded damages for the destruction of his causeways, we see no error in the ruling that he can enjoy no further recovery on that score. If these causeways were secured in the adjustment of the original right of way claim, they would be viewed as substitutes for the crossing allowed by the act of 1849: Dimmick v. Delaware, Lackawanna & Western R. R. Co., 180 Pa. 468; while, if the right of way was acquired independently and the duty to maintain these causeways arose entirely through contract, the act of 1849 would have no application: Marsh v. Lehigh & New England R. R. Co., 215 Pa. 141. However this may have been, the plaintiff is not entitled to both the damages and the causeways. After pleading the destruction of the causeways and procuring a verdict, he cannot now maintain a duty on the part of the railroad to give him another causeway' or additional damages. Had he not claimed and been awarded damages on account of the abolition of the causeways, or had the verdict covered the value of only one of the crossings, then it might have been necessary to consider the applicability of the act of 1849, and the question of the obligation of the railroad thereunder to extend the remaining causeway or give another over the roadbed as widened would have arisen; but as the plaintiff claimed and was awarded damages for the taking of both causeways, he has recovered all
Further discussion is unnecessary. We have not overlooked any of the points presented by counsel or considered by the court below, but in the absence of clearer light on the facts surrounding the creation of the causeways, or upon the equity proceeding to restrain their destruction, we prefer to reach our decision from the conclusions already stated.
Without ruling the other questions sought to be raised ■by the various specifications of error, the assignments arc all dismissed and the order of the court below is affirmed.