Wyoming Coal & Transportation Co. v. Price

Mr. Justice Mercur delivered the opinion of the court, The first six errors assigned will be considered together. They involve the question whether the defendant in error owned the land and coal under the canal. If the question was a new one, untrammelled by previous decisions, I should feel disposed to answer it in the affirmative. If, however, the authorities have settled it otherwise, we must assent to them as the true exposition of the law. A reference to the legislation leading to the construction of the Pennsylvania canals, will show that they were all parts of one general system, designed at the commencement. By the Act of 27th March 1824, Pamph. L. 92, the governor was authorized and required to appoint three commissioners, whose duty it was, to view and explore routes for a canal in various parts of the state, and make report to the governor, to be laid before the next legislature to enable it “to act with a full knowledge of all the necessary facts.” The preamble to the Act of 11th April 1825, Pamph. L. 238, recites, “whereas the establishment of a communication between the eastern and western waters of this state, and the lakes, by means of navigable streams and canals, would advance our agriculture, commerce and manufactories ; would unite in a common interest the great natural divisions of the state, and would in the end be an important source of revenue to the Commonwealth. And whereas the best interests of the state require that this great and important improvement should be the prpperty of the Commonwealth, and that the Commonwealth ought to embark in it with that zeal and energy that is best calculated to carry it into effect,” therefore the governor was thereby required to appoint five canal commissioners, with a view of their ascertaining the most feasible routes' for the construction of a canal. Section third declared “ that the routes to be examined by virtue of this act shall be pne from Philadelphia, through Chester and Lancaster counties, and thence by the west bank of the Susquehanna, and the waters thereof, to the Allegheny and Pittsburg; also, from the Allegheny to Lake Erie; one other from the city of Philadelphia to the northern boundary of the state towards the Seneca or Cayuga Lake; one other through Cumberland and Franklin counties to the Potomac river; and one by the Conococheague or Monocacy and Conewago to the Susquehanna;” and also “through the county of Bedford to connect the route of the proposed Chesapeake and Ohio Canal with the Juniata route as aforesaid.” Section fourth made it their duty to cause the grounds and streams which might “ lie on or contiguous to the probable courses — 173 — and ranges of said canal“ to be explored and examined for the purpose of fixing the most eligible and proper routes for' the same, and to cause all necessary surveys, and levels to be taken, and accurate field notes, drafts, and maps thereof, to be made.” The Act of 26th February 1826, Pamph. L. 55, is entitled “ An Act to provide for the commencement of a canal to be constructed at the expense of the state, and to be styled the Pennsylvania canal.” It authorized the carnal commissioners “immediately to locate and contract for making a canal and locks and other works necessary thereto, from the river Swatara, at or near Middletown, to, or near to, a point on the east side of the river Susquehanna, opposite to the mouth of the river Juniata; and from Pittsburg to the mouth of the Kiskeminetas.” Section eight authorized the commissioners to agree with the owmers of any land through which the canal was intended to pass, “ for the purchase, use and occupation thereof,” and in case of disagreement or legal disability of the owner, it prescribed a mode of ascertaining the damages. It further declared that “ on the payment thereof the state shall be seised of such lands as of an absolute estate in perpetuity, or with such, less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use or occupation, as shall be required and described as aforesaid, as if conveyed by the owner or owners.” The Act of 9th April 1827, Pamph. L. 192, is entitled “An Act to provide for the further extension of the Pennsylvania canal.” It authorized the canal commissioners to locate and contract for the construction of a canal up the valley of the Juniata, from the eastern section of the Pennsylvania canal to a point at or near Lewistown; also up the valley of the Kiskeminetas and the Conemaugh, from the western section of the Pennsylvania canal to a point at or near Blairsville, and also “ up the valley of the Susquehanna, from the said eastern section of the Pennsylvania canal to a point at or near Northumberland.” It further authorized the making of numerous examinations and surveys, and the taking of levels in various parts of the state, .including one “ from Northumberland up the north branch of the Susquehanna to the state line.” • By the Act of 24th March 1828, Pamph. L. 221, the canal commissioners were authorized and required “to locate and contract for making canals from the commencement of the Pennsylvania canal, at or near the mouth of the river Swatara, to Columbia, in Lancaster county ; from Lewistown to the highest point expedient and practicable for a canal on the Juniata; from a point at or near Northumberland to the Bald Eagle, on the west branch; from Northumberland to the New York state line on the north branch; from a point at or near Taylor’s Ferry to Easton; and — 174 — from Blairsville to the highest point expedient and practicable for a canal on the Conemaugh.” Thus it appears the construction of all parts of the canal was in pursuance of a general system designed at the beginning. It had its inception in 1824, assumed a more specific and comprehensive form in 1825, and in 1826 the actual construction of the canals was authorized to be commenced. At first one link on the Susquehanna, another on the Allegheny, with no connection between them. From time to time as loans were effected, new links were formed and branches extended, until the system was completed in furtherance of the original design. The portion constructed along the north branch of the Susquehanna river was in its inception and construction an integral part of the main canal. The state acquired the same right and title to the land occupied by that portion of the canal as to the land occupied by any, other portion. The mode of assessing damages by the Act of 25th February 1826, was changed by the Acts of 9th April 1827, and of 6th April 1830, Pamph. L. 218, but neither of them professed to change the title which the Commonwealth acquired to the land. All the acts Avere part of the same system. They dealt with the same general subject-matter. They are in pari materid. They should therefore be construed in connection with each other: Commonwealth v. Fisher et al., 1 Penna. R. 462; Commonwealth v. McAllister, 2 Watts 190. This last case arose on the application of claimants for damages. The distinction between perpetual and temporary use, contemplated by the Act of 1826, received a careful consideration. It was there substantially held that temporary, was designed to apply to the use or possession of that larger portion of land which might be occupied during the construction of the canal, while perpetual, was restricted to that portion which Avas permanently occupied by it after its completion. Haldeman v. Pennsylvania Railroad Co., 14 Wright 425, rested on a different state of facts. The land had been taken under the Acts of 1826 and 1827, for the Pennsylvania canal. The damages sustained by the then owners of the land were duly assessed in 1828 and paid. The canal was constructed on the land and used till 1857. Then, under an act of the legislature, the canal commissioners were authorized to change, and did change, the location of the canal at that point. The old bed of the canal was filled up. The defendant in error, under the Act of 16th May 1857, purchased all that portion of the canal thus filled, and its appurtenances. On the old bed of the canal thus raised up, the railroad company erected shops and buildings. The land had wholly ceased to be used for the purpose for which it had been taken. Haldeman had acquired the title of the person who owned the land when possession was taken for the canal, and whose damages were assessed. He brought ejectment to recover possession. Thus the question directly aroso, — 175 — ■what title did the state acquire when she took the land for the purpose of constructing a canal thereon ? This court fully adopted the correctness of the decision in Commonwealth v. McAllister, supra, in holding that the title was thereby vested in the Commonwealth in perpetuity ; that being so vested, a subsequent change of its use, and the occupancy of it for other purposes, did not impair the title of the Commonwealth, or of her vendee ; that it was unlike a public road where the fee remained in the owner, but under the acts relating to the canal the state acquired title. Whether it was acquired by purchase and a deed from the vendor, or whether the state took it by virtue of her right of eminent domain, it mattered not. It therefore followed that a cessation of the use for which it was taken could not revest anything in the former owner. The title which the Commonwealth acquired was again considered in Craig v. Mayor of Allegheny et al., 3 P. F. Smith 477. There the owner of the land had released his damages in consideration of the benefits which would result to the community in general, and him in particular, from the construction of the canal. As in Haldeman v. Pennsylvania Railroad Co., the canal had been constructed and used as such on this land for many years, had been sold by the Commonwealth in 1857, and had ceased to be used as a canal. The conclusion that the Commonwealth had acquired an estate in perpetuity in the land was again affirmed. It was said that the expenditure made by the state in the construction of the canal was equivalent to a pecuniary compensation to the grantor. Being an absolute and perpetual estate in the land occupied by the canal, the estate was neither revocable nor reversionary. The same question was again discussed in Robinson v. The West Pennsylvania Railroad Co., 22 P. F. Smith 316. This was also a case of release of damages. After many years’ use, the ground had been abandoned as a canal and- basin. The conclusion that the .Commonwealth took an absolute estate in perpetuity was reaffirmed. It was further said, the absolute estate of the Commonwealth would not be defeated or impaired by the owner’s neglect or refusal to make application for his damages within the time limited by the act. The case of Union Canal Co. v. Young, 1 Whart. 410, also shows that when land is procured for the building of a canal thereon, the presumption is that the right of soil is acquired, and not a mere easement thereon. It must, therefore, now be declared as the settled law of this state, that whenever the Commonwealth took land for permanent use under the acts in question, and constructed and operated a canal thereon, she acquired an estate in the lands so taken in perpetuity, and she may dispose of the same in fee. It is contended further by the defendant in error, that inasmuch — 176 — as a tenant cannot dispute the title of his landlord, under whom he entered, held possession, and enjoyed the profits, without any disturbance, under a paramount title, therefore, it is not admissible to prove that the defendant in error had no title to. the coal under the canal. The law between landlord and tenant may be conceded as claimed, yet the conclusion by no means follows. There was no .contract creating a tenancy of lands by any certain or defined limits or bounds, nor was there any putting into possession by any designated or described lines or muniments. Possession of a part of the mines at first inadvertently taken on the lands of the defendant in error was merely continued under an agreement for the payment of royalty, for the coal that might he mined within a specified time. The defendant owned two separate and distinct pieces of land. Lying between them was the strip which he did not own, and of which he had no possession. There is no evidence indicating an intention to put the company into possession of land that he did not own. There is, therefore, no warrant for the assumption that the relation of landlord and tenant existed as to the land under the canal. Hence it follows that the question covered by the second assignment is irrelevant, and the other five assignments are sustained. The 7th assignment is that the court instructed the jury “fairly to restate the account between them, just as if they had sent no statement at all.” Looking at other portions of the charge, we understand the learned judge to mean that if the jury first find the account rendered 'to be inaccurate and untruthful, then they shall restate as if none had been sent. So understanding it, we see no error in the instruction. The 9th and 11th assignments may be considered together. The mining operations in question closed on the 1st of January 1871. An account of the quantity of coal mined in June was first rendered. After that quarterly returns were made; the last on the 19th of January 1872. During the whole time the mining operations were in progress no complaint was made as to the time, manner or truthfulness of these reports. Crans, who was both secretary and treasurer of the company, swears that no objection was made until after the mine was flooded in July following. While the work was in progress, the defendant in error was in nowise restrained in free access to the mines and the mining accounts for any investigations he may have desired to make. If he failed to exercise those rights, the conclusion is a reasonable one that he was then satisfied with the accounts rendered. Having then acquiesced in them for so long a time, the presumption is in favor of their accuracy. That presumption may be overthrown by testimony showing them to have been either inaccurately kept or untruthfully returned. The testimony shows that.in conducting the mining operations — 177 — each chamber or breast was numbered. Each car had a number attached to-it, showing the breast from which it came. The credit was given to the car, and to the account of the man working the breast. As the coal came to the breaker, these accounts were taken. These returns were entered on the books, but the evidence further shows that these books were not thought worth preserving for any length of time, and were probably not in existence. If in existence, they were at Wilkesbarre, and no notice had been given to produce them. In view of all the facts, we think the learned judge unduly prejudiced the case in saying that it was not for the defendant in error “ to drag out as best he can, a detailed statement from them,’! and in further saying, “ there has not been the scrape of a pen, a book of any kind, produced here for the inspection of Mr. Price.” It does not appear that anything asked for, which was in the power of the plaintiff' in error to produce, had been withheld. We discover no substantial error in the remaining assignments. Judgment reversed, and a venire facias ele novo awarded.