130 Pa. 600 | Pa. | 1890
Opinion,
These are cross-appeals from the decree distributing a fund paid into court under the following circumstances:
In 1855 the Hempfield Railroad Company located its road through a farm jointly owned by James Warrell, Sr., Rebecca
The referees, having heard the parties and examined the premises, found that the quantity of land appropriated by the company, a plot of -which was attached to their report, was 5.22 acres, valued at $80 per acre, and that the said landowners “ have sustained damages, in the aggregate, which, including the value of said lands and the cost of building the requisite extra fencing along the side of said road, amount to the sum of eight hundred dollars; ” which sum they awarded to the “ owners of said land as and for all damages caused thereto by the said railroad.” That award was accepted by the company and the parties in interest as a final ascertainment of the damages, etc., but no part thereof was ever paid or otherwise secured.
Afterwards, in 1866 and 1867, Charles Warrell, by devise and conveyances, acquired the respective interests of his co-tenants in the farm, but neither the will nor deeds of conveyance under which he became sole owner contained any reference to the damages aforesaid, nor did either of the parties otherwise transfer to him their respective interests in the award. In 1881, Charles Warrell, being thus invested with the legal title to the farm, brought an action of ejectment for the strip of 5.22 acres of land mentioned in the award, against the Wheeling,
The facts, of which the foregoing is merely an outline, are fully presented in the auditor’s report, and constitute the basis of the decree appealed from. Mr. Braden having conducted the suit against the railroad company to a successful termination, appeared before the auditor, and claimed, for himself and those associated with him in the case, one third of the fund as compensation for their professional services. That, together with a small bill for printing the paper-book in the case, was resisted by all the parties in interest except Charles Warrell. Both claims were allowed, and from that branch of the decree the appeal of Sarah A. Oliver et al., No 224 October term 1889, was taken. The residue of the fund, less costs of audit, was claimed by Charles Warrell as sole owner of the legal title on which the action of ejectment was grounded; but the auditor and court below refused to sustain his contention, and distributed it among those who jointly owned the land, when the submission and award were made, according to their respective interests in the land at that time. From that part of the decree Charles Warrell appealed.
The decree thus complained of is so amply vindicated in the report of the learned auditor and opinion of the court below that, for reasons there given, we might well dismiss both appeals •without further comment. There can be no question as to the character of the fund in controversy. It represents .the damages sustained by the joint owners of the farm by the location
In McFadden v. Johnson, 72 Pa. 885, the owner of land through which a railroad was constructed sold the same without receiving any compensation for damages done by the construction of the road, or reserving her right thereto. Afterwards the then owner of the land effected a settlement with the company then in possession of the road for the damages done to the land before the sale, and received the money. In an action by the vendor against the person who received the damages, it was held that plaintiff was entitled to recover. Mr. Justice Agne'w, delivering the opinion of this court, said: “ The damages for the injury done to the land while Mrs. McFadden was the owner, were clearly a personal claim, which did not run with the land. If the company entered unlawfully, the entry and work done upon the land were a trespass, and the right to recover damages could be enforced by a common-law action. If the entry were lawful, the company acquired a right for which the damages (so called) are a compensation, enforceable in the statutory mode given to assess it: McClinton v. Rail road Co., 66 Pa. 409 In either case, quacumque via data, therefore, the right is personal, belonging to the owner of the land when the entry and injury took place, and could pass only by her assignment.”
Those who were joint owners of the farm when the railroad was located and constructed by the original company had, then,
The. position assumed by appellants in the second appeal, that they are respectively entitled to their full shares of the gross fund for distribution, without contributing anything whatever to the necessary expenses of the litigation by which it was realized and brought into court, is neither just nor equitable. Invested, as he was, with the legal title to the strip of land occupied by the railroad company, Charles Warrell had an undoubted right to maintain the action of ejectment which resulted in enforcing payment of the award for damages, in which appellants and he were jointly interested. As was said by this court when that case was here, he “ was the proper person to enforce the award.” In fact he was made so by appellants themselves in conveying to him the legal title on which the action was grounded. That suit was vigorously contested in the court below, and then in this court. There is no question as to the necessity for the services of able and experienced counsel at every stage of the litigation. It was only when further resistance would have been disastrous to the railroad
Decree affirmed, and both appeals dismissed, at the costs of the respective appellants.