Cumberland Valley Railroad v. McLanahan

The opinion of the court was delivered, May 20th 1868, by Sharswood, J. The 1st assignment of error relates to the form of action. It is a perfectly well-settled principle that when the legislature has provided a specific remedy for the recovery of damages for injuries sustained by the construction of a work of internal improvement by a corporation, a party injured cannot have recourse to a common-law action: McKinney v. The Monongahela Nav. Co., 2 Harris 65. The defendants below were incorporated by the Act of April 2d 1831, Pamph L. 373, entitled “An act to incorporate the Cumberland Yalley Railroad Company.” It gives to the company no powers “ except such as may be necessary or incident to the making and using of the said railroad,” and specially declares that “the said company shall at no time hold any land for any other purpose than the construction of the said railroad, or for depots, toll-houses or other necessary works.” By the 12th section they have power to survey, lay down, ascertain, mark and fix such route as they shall deem expedient for said railroad, the said road not to be more than five rods wide. By the 14th section “ it shall and may be lawful for the company hereby incorporated to make, erect and establish a double railroad on the route laid out as aforesaid; and they are also hereby empowered to erect, make and establish all works, edifices and devices to such railroad as may by the said company be deemed expedient for the purpose of carrying into effect the objects of their incorporation; and also to contract or agree with the owner or owners for the purchase of any lands or tenements which may be necessary for the purpose of constructing and using the said railroad.” And finally, by the 15th section, they have power “to enter in and upon and occupy for the purpose of making said railroad” any land upon which the same may be located, and if the owner refuses to permit such entry and occupation, and the parties cannot agree, they shall appoint appraisers, and if they cannot agree upon the appraisers, the Court of Common Pleas shall make the appointment. Erom this recital of the provisions of the charter on this subject it would seem sufficiently clear that while the company may have had power to purchase and hold land for the general purpose of “ erecting, making and establishing all works, edifices and devices to such railroad as may by the said company be deemed expedient for the purpose of carrying into effect the object of their incorporation,” yet that their authority to enter upon and occupy land without the eonsent of the owner is confined to such as is required “ for the purpose of making such railroad.” With this end in view they can enter and occupy to the extent of five rods in width, and no [29] more; for that purpose and no other. Whatever buildings and erections were necessary to the railroad as such — without which it would not be a complete and perfect railroad — fit for use — are included by implication. Such would be depots for the reception and landing of passengers and freights, wood and water stations, toll-houses, watch-houses and others of similar character. But these words cannot be extended by any latitude of construction to comprehend a warehouse — a place for the storing and safe-keeping of goods — any more than it can be to the offices and residences of the officers and employees of the corporation. This court has often had occasion to consider the question of what is to be regarded as forming a necessary part of a railroad — generally in cases in which claims have been made by the companies to hold their property exempt from county or municipal taxation. The cases are collected in the opinion of Judge Pearson, in The Lackawanna Iron Co. v. Luzerne County, 6 Wright 428, and the result of them stated to be, that the line of road and ground occupied thereby, and the buildings immediately necessary for its enjoyment, not merely useful or convenient, are exempt; whilst all other property, though erected for the convenience of the company and to promote its trade and business, is subject to taxation. The opinion of the judge below in that case was adopted by the Supreme Court. The principle of it has been reaffirmed in subsequent eases not yet reported, and may now be considered as firmly established. If this be so, then the taking of the plaintiff’s land for the erection of this warehouse was not within the power conferred on the company by the 15th section of their charter. They could only acquire title or a right to use it for that purpose by agreement with the owners. The refusal of the court below to affirm the 1st point presented by the defendants below was right. It is perhaps unnecessary to go further, as nothing more is contained in the specification of error than that refusal; but as the cause is to be remitted for another trial, it will be proper to notice and dispose of another ground of objection made to the remedy by action of ejectment adopted in this case. It is contended that as the defendants below without question had a license from Judge Chambers, who was one of the tenants in common of the lot of ground in question, which gave them a right to occupy and use the land, ejectment cannot be maintained by the plaintiff below, the other tenant in common, for his undivided moiety., It is urged also that the right of the defendants under the grant from Judge Chambers being to an easement, or more properly perhaps a license to occupy, ejectment is not the proper remedy — they are not the tenants of the land, and that if the plaintiff below recovers, the sheriff under the habere facias cannot put him in possession. But it is to be remembered that ejectment is not a [30] real, but a mere possessory action. The defendant is the occupier, not the tenant of the freehold. If, therefore, as for the purposes of the argument we must assume, the company had no grant or authority from the plaintiff below, their occupation, as far as he was concerned, if it amounted to an ouster, was a wrongful disseisin or dispossession of the land itself. The plaintiff below had in that aspect of the case nothing whatever to do with the nature of the right acquired by the company under Judge Chambers. Was then the exclusive occupation and use of the ground by the company by building the warehouse an actual ouster of the plaintiff? If it was, he can maintain ejectment. That it was, no doubt, we think, can remain after Law v. Patterson, 1 W. & S. 184; McMahan v. McMahan, 1 Harris 376; Hill v. Hill, 7 Wright 521. We are of the opinion, however, that there was error in the answers of the court to the 2d and 3d points of the defendants below, and that consequently the court also erred in the direction to the jury to find for the plaintiff as complained of in the 4th assignment. The 2d point, indeed, might have been met by a flat refusal; for it assumed as actually proved the main facts of the case, and asked the court to charge that they constituted sufficient evidence of ratification by the plaintiff of the arrangement made before he purchased. The court, however, did not take this course, but answered the point, saying to the jury: “ It is not so clear that his (plaintiff’s) acceptance of that deed (Chambers to him) will preclude him from asserting his title to the whole of the interest he acquired five years before from the executors of T. G. McCulloh. We do not see how the clause in the deed from Mr. Chambers proves that Mr. McCulloh was a party to the arrangement, and affects plaintiff with notice of it.” The deed to which reference is here made from George Chambers to the plaintiff below contained a distinct and unequivocal recital that the defendants had erected a corner of their brick warehouse on the premises, and that the consideration of the permission to them so to do was that they should “ allow the ground south of the warehouse for a road or way from Second street in said borough to the premises above described to the proprietors of the said described piece of land, their heirs and assigns.” It will be observed that the consideration is stated as moving not to himself (Chambers) alone, but to all the proprietors. If the plaintiff below, with full knowledge of such a grant having been made, whether by George Chambers alone, or in conjunction with the executors of McCulloh, availed himself of and enjoyed the right of way, which was the consideration of the grant, it was evidence which ought to have been submitted to the jury of a ratification by him of the license to the company. It was a license on the faith of which valuable improvements had been made by the [31] grantees, and therefore not within the Statute of Frauds and irrevocable ; and subsequent ratification by parol must be held to be equivalent to a precedent authority: Le Fevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; McKellip v. McIlhenny, 4 Watts 317; Swartz v. Swartz, 4 Barr 353. Of the use and enjoyment of the right of way by the plaintiff there was abundant evidence: among the rest, the testimony of the plaintiff himself, who was examined as a witness. He said: “We passed over the vacant lot of the company to my land. I claimed a right of way, owing to the privilege the company had to build a part of warehouse under the deed of Mr. Chambers.” The answer of the court denies any operation or effect whatever, to these facts, if substantiated to the satisfaction of the jury. We think that in this there was error. .' ; We are of opinion, also, that the 3d point of the defendants below ought to have been affirmed: that “if the plaintiff meant to repudiate the arrangement, and had knowledge that the company was re-erecting its warehouse partly on his land, before bringing the suit, and he gave no notice of his claim, and the company labored under the honest belief that he was satisfied with and had sanctioned the previous arrangement made before the warehouse was originally built, he is estopped from a recovery in this case.” The learned judge did not question the law as proposed, but denied that there was evidence in the cause to which it could be applied. It is certainly true that it would not be enough to show that the plaintiff resided in the same town, to authorize the jury to draw the inference that he knew of the improvement. But there was something more than that here. Mr. McLanahan himself testified as follows: “ I lived in Ohambersburg since 1845. I knew the warehouse was burnt, and I have seen that they rebuilt it. I gave them no notice that I claimed the land.” The learned judge, in commenting on this evidence, remarked to the jury “ that he does not say that he saw it while it was being re-erected.” This criticism upon the oral testimony — applying the strictest grammatical interpretation to the words — was no reason for taking the case from the jury. It was for them to say what the witness meant when he said, “ I have seen that they rebuilt it.” Whether he used the word “ rebuilt” as the perfect or imperfect past — that they “ rebuilt or were rebuilding” it — which in common speech are often confounded — especially as he had not given a more particular denial of so material a fact — was for the jury. That this conduct on the part of the plaintiff was an estoppel if believed, the eases are numerous, clear and consistent. There seem to have been here all the requisites as laid down in Woods v. Wilson, 1 Wright 379; and one of the latest cases in our reports, Arnold v. Cornman, 14 Wright 361, is very much in point. Judgment reversed, and venire facias de novo awarded.