Appeal of Hoffman

Opinion, Mr. Justice Stebbett : This case is virtually ruled by Fries v. The South. Penn. R. & M. Co., 85 Pa. 73, in which it was held that the lawful exercise of the right of eminent domain rests not alone upon actual payment of just compensation to the owner of land taken for public use, but also upon the alternative of security given for the payment thereof; that whenever such security, in due form and approved by the court, is given, “ the grasp of the owner upon his property is loosened by the constitution itself, and consequently the easement acquired passes freed from his power to obtain payment otherwise than upon the bond and the proceeding by assessment of damages given by the law.” That case arose under the amended constitution of 1838, the provisions of which, as to the subject under consideration, are essentially the same as the corresponding clauses of our present constitution. In article I., section 10, of the latter, it is ordained that private property shall not “ be taken or applied to public use without authority of law and without just compensation being first paid or secured;” and article XVI., section 8, of same instrument, further provides that “ municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyedby the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury, or destruction.” [518] The privilege of taking private property for public use may, therefore, be constitutionally exercised by those invested therewith, in one of two ways, either by actual payment or by giving security for the payment of compensation to the owner of the property taken. For example, if a railroad company agrees with and pays the landowner for right of way, it thereby acquires a clear right to the easement. On the other hand, if the parties fail to agree, the same right may be acquired by complying with the other constitutional alternative, viz.: giving security for the payment of just compensation, in the manner prescribed by law. When the latter alternative is resorted to, and sufficient bond, with sureties approved by the court, has been given, the company acquires as clear and perfect right to the easement as if it had paid therefor in cash. The landowner’s only remedy is upon the bond in connection with the statutory provision for assessment and collection of damages. It is contended that the landowner retains his grasp upon the property until he has actually received compensation for the use to which it has been applied. The answer to this position is, while the people might have so provided in their fundamental law, they have not done so. On the contrary, they have ordained, as we have seen, that private property may be taken for public use upon giving security for the payment of just compensation to the owner; and the kind of security, as well as the manner in which it shall be given and enforced, has been prescribed by law. A right of way for Tailroad purposes is a mere easement, which under the law, is not the subject of lien: West. Penn. R. Co. v. Johnston, 59 Pa. 290; and hence upon the facts found by the learned auditor, appellant had no claim as a lien creditor or otherwise, upon the fund raised by the sale of the property and franchises of the railroad company. Cases, in which compensation has neither been paid nor secured, rest on an entirely different principle. They are wholly outside the constitutional provisions above quoted, and hence no right has been acquired as against the landowner, except when long-continued and exclusive occupancy may have ripened into a right: West. Penn. R. Co. v. Johnston, 59 Pa. 290; McClinton v. Railroad Co., 63 Pa. 404. In these cases, the [519] rights and remedies of a landowner, to whom compensation has neither been paid nor secured, are very fully considered. Decree affirmed, and appeal dismissed at costs of appellant.