184 Pa. 66 | Pa. | 1898
Opinion by
This suit is an ejectment for a strip of land along the line of defendant’s railroad in what is now the borough of Ingram, Allegheny county; the land claimed by plaintiff being 185 feet long and 37 feet wide, measuring from the center of the railroad bed. It is now occupied by defendant with its tracks, and a siding at the station. In 1853, the land was part of a tract of one hundred acres owned by James Flanigan, in what was then Chartiers township, Allegheny county. The plaintiff shows title by successive conveyances from Flanigan, so far as Flanigan had title to the disputed piece. The defendant claims that the land was appropriated in 1853 for railroad purposes under right of eminent domain by its predecessor in franchise, the Pittsburg & Steubenville Railroad Company, and since that time has been occupied for railroad purposes. It appears from the record that, on August 27, 1853, Flanigan, the then owner of the one hundred acres, presented his petition to the then district court of Allegheny county, setting forth, as owner, that the railroad company, under the act of 1849, had entered upon his land and appropriated a part of it for a railroad, without his consent; that they had not been able to agree upon compensation for the damages, and therefore he asked that seven viewers be appointed to assess his damages. The court appointed the viewers, who went on the premises, had several meetings, at which they heard testimony, and made report to the court, November 5, 1853, that the railroad company had taken and occupied of Flanigan’s land three acres and one hundred and two perches; that this was tillable and pasture land, but there was also included in this part of a slaughter house yard, garden and orchard, and that further, a valuable spring had been destroyed. They therefore assessed his damages at $2,900. The court confirmed the report nisi. The railroad company then filed exceptions which in the main complain that the damages allowed were grossly excessive, the testimony showing that the land was
The source of the dispute now arises from the map filed by N. Patterson, one of the viewers. If no map had been filed the •conclusive presumption would have been, after this lapse of time, that whatever portion of land the company had entered upon and occupied in 1854, within the limit of its right to appropriate under the act of 1849, was the land embraced in the viewer’s report and the court’s decree, in the statutory proceeding for damages. Under that act it had a right to appropriate not to exceed 60 feet in width, except where it might take more at deep cuttings, high embankments or places selected for sidings, turnouts, depots, engine or water stations. At that early day in railroad building, when land was far less valuable than now, but little care was taken by either owners or railroad corporations in defining with accuracy the limits of the appropriation. The damage resulted in most cases, not so much from the quantity of land taken as from a steam railroad being run and operated through a cultivated farm. The five or ten acres appropriated out of a one hundred acre farm was but a small part of the damage sustained, and could be easily computed; the expense and interruption in the pursuit of his peaceful avocation by the new method of carrying, was the most grievous
The map does not indicate, with even approximate certainty, the extent of the original appropriation. There is not a single course, distance or width given of the land for which damages are awarded. It shows the courses and distances of the outside lines of the Flanigan farm, then, a narrow strip in white, diagonally for 2,459 feet across it; then, along this strip, irregular patches colored in pink and blue, without a measurement to one
We are of the opinion: 1. that the Patterson map is so indefinite that the boundary of the original appropriation is nó more certain with than without it; 2. that the actual occupation of the land by defendant for a period of more than twenty-one years, to the extent of that occupation, fixes with certainty its right; 3. that plaintiff can recover no land within the boundaries so occupied.
The claim of plaintiff being for land within the lines of defendant’s actual occupancy, it follows that he cannot recover, and the court should have so instructed the jury.
What we have said in effect disposes of all the assignments of error.
The judgment is reversed.