50 Pa. Super. 341 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff brought this action of ejectment to recover possession of a narrow strip of land, described in the praecipe as being eighty-four feet long and twelve and two-tenths feet wide at one end and fourteen and five-tenths at the other, and bounded on the northwest side by a concrete wall recently erected and on the southeast side by the line of the Delaware, Lackawanna & Western R. R. Co. It appeared, at the trial, that both parties claimed under Samuel Davenport, deceased. The plaintiff had derived his title, through sundry conveyances, from the heirs of Samuel Davenport, his deeds conveyed two adjoining lots fronting on Main street in the borough of Plymouth; the first, dated 1873, described one of the lots as extending back southerly 200 feet deep to the Lackawanna & Bloomsburg R. R., and the second deed, dated 1892, described the lot thereby conveyed as extending back southerly from Main Street “about 300 feet,” “to the line of the Lackawanna and Bloomsburg R. R. Co.” The undisputed evidence established that the actual distance from Main street south to the line of the concrete wall in question was 341.7 feet. The plaintiff is, therefore, in possession of lots, exclusive of the strip in controversy, which are of a depth of at least forty-one
The contention of the plaintiff that the right of way of a railroad company is not acquired through the exercise of the right of eminent domain, unless it appear that a proceeding in the court of common pleas was resorted to for the purpose of ascertaining the damages caused by the taking or injury to property, is not well founded. The successive steps necessary to the acquisition of title to a right of way by a railroad company in the exercise of the power of eniment domain, under our statutes, are clearly defined, and have been frequently commented upon in the decisions. The statute authorizes a preliminary entry on the lands of private owners for the purpose of exploration; this is made by engineers and surveyors who run and mark out experimental lines, and report their work with maps and profiles necessary to give proper information to the company which employs them.
The following facts are in the present case undisputed. Samuel Davenport died in 1850, seized of a tract of . land in Plymouth, leaving several children, all then minors. Henderson Gaylord was duly appointed administrator of his estate, and by Act of assembly of April 2, 1853, P. L. 285, was specially authorized to sell the real estate of said decedent, report of such sales to be made to the orphans’ court, accompanied by the assent, in writing, to such sales, of the widow and the guardian of the minor children of said decedent, and upon the approval of such sales by said court, and bond given and approved, the court was authorized thereupon to confirm the said sales absolutely, and the administrator was empowered to convey the lands so sold. The Bloomsburg & Lackawanna Railroad Company, to all of whose rights the Delaware, Lackawanna & Western Railroad Company has succeeded, was duly incorporated and vested with the power of eminent domain and some prior time to 1858 not only located its line but actually constructed a single track railroad across the lands of Samuel Davenport, deceased. There was not a scintilla of evidence in the case which would have warranted a finding that this entry of the railroad upon the lands was other than adverse and in the exercise of the right of eminent domain. The minutes of the company of May 18, 1858, were offered in evidence,
The records of the orphans’ court offered in evidence
No question arises in this case as to the right of the administrator to receive the damages arising from the appropriation of the right of way by the railroad company, for the administrator accounted for the money and paid it over to the heirs, the owners of the land. None of the heirs of Samuel Davenport have ever questioned that proceeding. In the deeds which they executed after becoming of full age and under which this plaintiff claims
When the railroad company thus acquired a right of way sixty feet wide and constantly maintained upon it one or more railroad tracks used in the public service, that was the best assertion of a right to the entire width that could in the nature of railroad construction and operation be demanded. The company was not bound to cover its entire right of way with tracks and the failure to do so would not expose it to the danger of losing a part of its right of way, because of mere nonuser. The company in securing its right of way has the right to provide, within the limits prescribed by law, for future needs. It may construct within its right of way the one or more tracks necessary to provide for the accommodation of the present public business, and may construct in the future such additional tracks as the growth of the business may require. When the right of way of a railroad company has been lawfully acquired and a railroad constructed and operated thereon, the intrusion by an individual upon portions of the light of way not in actual use by the company cannot vest the intruder with title under the statute of limitations, as against the public right, for the railroad is by statute made a public highway: Pennsylvania Railroad Co. v. Freeport Borough, 138 Pa. 91; Northern Pacific Railroad Co. v. Townsend, 190 U. S. 267; Sapp v. Northern Central Ry. Co., 51 Maryland, 115; D., L. & W. R. R. Co. v. Newton Coal Mining Co., 6 Kulp, 21; Stevenson’s Appeal, 17 Weekly Notes of Cases, 429; East Tennessee, Virginia & Georgia R. R. Co. v. West, 10 L. R. A. 855; Heyl v. P., W. & B. R. R. Co., 51 Pa. 469; Pittsburg, Fort Wayne & Chicago Railway Co. v. Peet, 152 Pa. 488. There was no evidence in this case which
We find nothing in the evidence to justify the contention that the agreement entered into by the Delaware, Lackawanna & Western Railroad Company and the Le-high & Wilkes-Barre Coal Company, constituted an abandonment by the former of a part of its right of way for railroad purposes. The agreement as printed in the appellant’s paper-book does not disclose that the railroad company surrendered dominion over any part of its right of way or that it contemplated the use of the land for other than raihoad purposes. It does give the coal company the right to use certain side tracks, but does not exclude the railroad company from the use of such tracks. The joint use by the railroad company and large shippers of side tracks and switches, within the limits of the right of way, is one of the usual and ordinary incidents of the business, and so long as all shippers are afforded the same facilities and treated alike, under, similar conditions, it involves no violation of the public duty of the company. The assignments of error are all dismissed.
The judgment is affirmed.