Pittock v. Central District & Printing Telegraph Co.

Opinion by Henderson, J., The Act of February 19, 1849, P. L. 79, authorizes any railroad company incorporated thereunder “to enter upon and into and occupy all land on which the said railroad .... may be located.” Provision is made for the compensation proper “ for the damage done or likely to be done to or sustained by any owner” of land which such company “may enter upon,” and the viewers appointed to estimate the damage are. directed to determine the value of land so “ taken or occupied; ” in doing which, they are to make allowance for advantages which [594] may result or seem likely to result to the owner of the land in consequence of the making or opening of the railroad. The interest so acquired is more easily described than named. It was called an “easement” in Western Pennsylvania R. R. Co. v. Johnston, 59 Pa. 290, and in other cases there referred .to, but in Pa. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 30 W. N. C. 148, Judge Mitchell said, “it may well be doubted if it is not a misnomer to extend to this newly invented interest in land the name of easement; ” and in the same opinion it was suggested that the right acquired partook of the nature of a conditional fee. In Pittsburg, etc., Railway Co. v. Peet, 152 Pa. 488, it was held that the interest acquired by condemnation proceedings is a great deal more than a right of way, and that the term “ easement ” in connection therewith was used in a loose way for the purpose of distinguishing it from a fee. Chief Justice Sterrett in referring to the same subject in Northern Central Railway Co. v. Electric Ry. Co., 177 Pa. 142, used this language : “ While that interest cannot be called a fee it is a species of title that has some of the incidents of an estate in land.” The use is a public one and the right to condemn only exists at all because of that fact. It is evident from the provisions of the statute that the right which the company acquires is for the purposes of its business only and that its exclusive and absolute control of the property condemned is limited to railroad uses. Having acquired title for a particular public use the property is held for the purposes which alone made the taking lawful: Ridge Turnpike Co. v. Stoever, 6 W. & S. 378; Lance’s Appeal, 55 Pa. 16; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Proprietors of Merrimac River Locks, etc., v. Nashua, etc., R. R. Co., 104 Mass. 1. This limitation is expressly recognized in Railway Co. v. Peet, 152 Pa. 488. The use being a public one it necessarily follows that property cannot be taken under the guise of a public use and applied to one which is merely private. The owner is only called upon to part with the possession and control of his property for a particular purpose, and when he presents his claim for damage the amount is fixed by a comparison of the injury resulting from the taking and the advantages resulting to him from the construction of the railroad. To subject the land taken to other uses would not only be without warrant in the statute, but [595] would deprive the owner of his property without compensation. All that was taken from the appellee when the railroad was located across his farm was the use and possession of his land for railroad purposes. His estate in and control over his property has only been diminished to that extent. The absolute, exclusive and uncontrolled occupancy of the railroad company goes no further. The defendant is not invested with the right of eminent domain; it only justifies its occupancy of the plaintiff’s land through the contract between it and the Pittsburg, Chartiers & Youghiogheny Ry. Co., by which company the plaintiff’s land was condemned. It may be admitted that the latter company has the right to construct a telegraph or telephone line along its right of way for its own use, and it is equally clear that it may employ another company to perform this service for it. It cannot be seriously contended, however, that the telephone line constructed by the defendant was in any considerable degree for the use of the railroad company. The poles and wires erected constitute a trunk line of the telephone system of the defendant extending to “ Rochester and the towns down the river.” The poles carry thirty-four wires. As a consideration for the right of way the railroad company was to be supplied by the defendant with one wire for its use and had the privilege of attaching at its own expense two telegraph wires on the poles used by the defendant. Clearly the use of the property by the defendant was a private one for its own profit, having no reference to the convenience or necessities of the railroad company except the comparatively insignificant, use of one telephone wire and the right to attach two telegraph wires to the pole. In granting to the defendant the right to maintain its line within, the right of way over the plaintiff’s farm the railroad company subjected the land to a use not contemplated ’in the condemnation proceeding, nor authorized by the law under which it took possession of the plaintiff’s land. If it may authorize the construction of a telephone line it may in like manner permit an oil or gas or water company to lay its pipes within the right of way without the consent of the owner of the fee, or transfer the right to use the soil for other purposes. The owner has not consented to this use of his land; nor does any law to which our attention has been called authorize such occupancy. As the railroad company had no [596] authority to grant the right which the defendant claims, and the defendant’s use of the soil is practically independent of the railroad’s use, the occupancy by the defendant is in violation of the plaintiff’s right. The defendant could not have secured a right of way from the plaintiff adversely and we think this cannot be done indirectly by acquiring from the railroad company a right which it had no authority to grant. The case of American Telegraph & Telephone Co. v. Pearce, 71 Md. 535 (18 Atl. Repr. 910) is directly in point and adverse to the defendant’s contention. We think the plaintiff’s right may be asserted in an action of trespass. The interference is with his estate and not with that of the railroad company. The plaintiff is still the owner of the soil except as to the uses to which it was subjected when taken possession of by the railroad company. The defendant is using the land for a purpose not included in the uses of the railroad company, and is in no better situation than if there had been a conversion of the whole right of way by the railroad company to some other than railroad purposes. When the law gives the right to a person to enter on the land of another for a particular purpose, and the person so authorized enters for another purpose not authorized by law, such entry constitutes him a trespasser and an action of trespass will lie: Ridge Turnpike Co. v. Stoever, 6 W. & S. 378; Proprietors of Merrimac River Locks, etc., v. Nashua, etc., R. R. Co., 104 Mass. 1. It was conceded at the trial and is made manifest by the evidence that the defendant trespassed upon the plaintiff’s land outside of the lines of the right of way. A guy line attached to one of the poles extended eighteen or twenty feet into the plaintiff’s field and the arms of the poles also projected over the line. Estimates of the amount of damage varied and we are not convinced that the amount of the verdict is' excessive. That subject was carefully considered by the court below and it does not clearly appear that the discretion of the trial judge was exceeded. The assignments of error are all overruled and the judgment affirmed.