Pennsylvania & New York Canal & Railroad v. Billings

Mr. Justice Sterrett delivered the opinion of the court, The vital question in this case was, whether the Commonwealth, in the construction of the North Branch Canal, appropriated the land in controversy for permanent use and occupation as a part of that improvement. Under the testimony this was a question of fact for the jury. If they had found, that the land was so appropriated, the verdict should have been in favor of the plaintiff company, which succeeded to the title of the Commonwealth in the canal. There never was any question as to the right' of the state to take and appropriate lands required in the construction and operation of such public improvements, but there is a recognised distinction between that which was required for permanent use and occupation and that needed for temporary purposes only. As to the latter, the title of the owner was not divested, and his enjoyment was only temporarily interrupted; but as to the former, it has been settled by a current of decisions that the title acquired by the Commonwealth to lands so taken and appropriated to permanent use and occupation, was an absolute estate in perpetuity: Commonwealth v. McAllister, 2 Watts 190; Halderaan v. Railroad Co., 14 Wright 425; Craig v. Mayor of Allegheny, 3 P. F. Smith 477; Robinson v. The West Pennsylvania Railroad Co., 22 Id. 316, and Wyoming Coal & Transportation Co. v. Price, 31 Id. 156. The contention on the part of the plaintiff company is, that by virtue of a taking and appropriation of the land for permanent use and occupation as part of the North Branch Canal, the Commonwealth .acquired a title in perpetuity. If such was the case it is conceded that the plaintiff company is now invested with the same title. Hence the vital question on the trial in the court below was as to the taking and dedication to such permanent use and occupation. The burden of proof was o'n the plaintiff, and the question of fact appears to have been fairly submitted to the jury. It is claimed that the recital in the deed to M. C. Mercur, Esq., referred to in the first assignment of error, was conclusive evidence against the parties thereto and those claiming under them, that the land described therein belonged to the state at the date of the deed, and that the court erred in ruling otherwise. While the recital was no doubt some evidence against the parties it was not conclusive, and did not estop them from showing that the land embraced in the deed, although covered by the overflow of the canal, was in fact never appropriated to permanent use and occupation as a part thereof. The defendant claimed and introduced testimony to show that none of the land in dispute was so appro [45] printed ; that the location of the canal was outside of the southerly line of the lot in controversy, and that the embankment on the northerly line was placed there a.t the request of the then owners' of the lot and for their benefit. Mr. Osterhout, one of the owners at that time, testified that after the lines of the canal were staked he and his co-tenant, Mr. Jackson, requested the, engineers in charge of the work to make a basin for their benefit by running the bank near the northern line of the lot. He further says: “ The bank, of course, along the road was made for a bridge, and in order to get over there would not have to be any additional bank, but the bank along the northern portion of the lot would be a less embankment than across the corner. By our instruction they made that bank pretty near the northern line of the lot. The bank forming the reservoir was made at our request, and it was so understood by me and Mr. Jackson that the basin was our property.” * * * “ The lot was a sort of basin itself. It -was lower down towards the corner, where they went through with the canal than it was at any other place in the lot.” There was other testimony tending to prove substantially the same facts, and that the actual location and appropriation by the stqfe was along the southerly line and outside of the lot now in dispute. ' The testimony of Mr. Osterhout was objected to, and forms the subject of the second assignment; but we think it was competent and relevant to the issue. Nor do we think there was error in admitting the testimony complained of in the third assignment. • The fourth assignment of error is not sustained. The qualification with which the plaintiff’s first point was affirmed, was entirely proper in view of the testimony before the jury. As we have seen the alleged title I in the Commonwealth depended on an actual appropriation for permanent use and occupation as a part of the improvement. If it.was true that the embankment on the northerly line of the lot was placed there instead of on the southerly line (where it is alleged by the defendant that the location was actually made and marked), at the request of the owners, and exclusively for their benefit, and at the same time without any disadvantage to the state, so that the lot would be overflowed and thus form a basin for their sole use, it was clearly not an.appropriation of the lot by the state for permanent use and occupation as part of its canal. Whether it was the. one or the other was the real question in the case, and it was a question of fact exclusively for the jury. There was no error in that part of the charge to which the fifth assignment relates. If there had been record evidence of the facts alleged in the point to which this assignment refers, it would have been the duty of the court to have instructed them as to its -effect. Inasmuch as the only evidence of what the claim contained was in parol, the plaintiff has no reason to complain of the manner in which it was submitted to the jury [46] The sixth and seventh assignments relate to portions of the charge in which the court submitted the main question to the jury. The one is practically a repetition of the other, and the real question in the case could not have been more clearly and appropriately submitted to the jury than was done in those portions of the charge complained of in these assignments. The jury was instructed that if they believed the canal basin was constructed at the instance of Osterhout and Jackson for their benefit, and was not taken for permanent use, for canal purposes, by the state, then the Commonwealth could not take an estate in perpetuity by the overflow of water on the land of Osterhout and Jackson, described in the writ. There was testimony which properly carried this question to the jury, and we discover nothing in any of the assignments that calls for a reversal of the judgment. Judgment affirmed.