Jones v. Erie & Wyoming V. R.

Opinion, Me. Justice McCollum : The appellant is the owner of a lot, with two dwelling-houses thereon, situate at a corner of Washington Avenue and New street, in the city of Scranton. In 1886, the Erie & Wyoming Yalley Railroad Company extended its line of railway into said city, by a route which passed directly over the intersection of Washington Avenue and New street, at the point where the appellant’s lot is located. The centre line of the route is twenty-five feet from the corner of his lot, and the tracks of the railroad are eighteen feet above the street grade, supported by a bridge eighteen feet wide, which the company has erected there. The centre of the bridge is the centre line of the railroad, and that portion of the bridge which is nearest to the appellant’s lot is about sixteen feet from it. The appellant, alleging that the company had located its road upon his land, obtained a view under the act of February 19, 1849, P. L. 79, to assess the damages. The viewers declined to award damages, on the ground that the company had not taken any of his land, and that it had not, in the construction of its road on the street in front of his lot, made any excavation or embankment. On appeal from their report, an issue was framed and a trial was had, which, by direction of the court, resulted in a verdict for the company. The appellant testified that, when the company’s engineers were engaged in locating its road in the vicinity of his property, “ they staked out the lines, drove a stake in the centre, and measured thirty feet each way; ” that they drove “ a tack or shingle nail ” in his fence, and one in the wooden curb, near [636] to it; and that Jenks, who was in charge of the work, told him that these marked the outside lines of the railroad. He also submitted evidence that the company, on the line of its road above and below his lot, was in the actual occupancy of a strip of land sixty feet wide. In answer to this showing by the appellant, Jenks admitted that he was upon the lot, and drove the nails as claimed, but denied that he located an outside line there, or made any representations that the nails were driven to mark such a line; and he explained that the sole purpose of his presence and work there was to get “ preliminary'notes ” to enable him to locate a curve line which was required near that point. He testified, further, that the only line of the road located near the appellant’s lot was the centre line; that the company purchased and occupied for railroad purposes some lots in that vicinity, the lines of which were marked, and that the only point on the road where the right of way was staked out of the width of sixty feet was on the Gilmore property. We have now referred to all the testimony which is material to an understanding of the conflicting claims of the parties respecting location, and we are called upon to determine whether it is sufficient to justify a jury in finding that the company has appropriated a portion of the appellant’s lot. It should be stated in this connection that on the trial in the court below, and on the argument here, the company flatly refused to comply with his request that it should designate the boundaries of its right of way, or disclaim of record any right in his land by virtue of its location of its road. Its sole answer to his claim is that it has not taken actual possession of his land; that the centre of its road is about twenty-five feet from his lot; and that it has not designated the boundaries of its right of way at that point. It is contended by the appellant that, in the absence of a designation of boundaries, there is a presumption that the company has appropriated for its right of way all that the act of 1849 allows it to take for that purpose, and it is conceded that such an appropriation would include a.portion of his lot. A railroad company, authorized to take for its right of way a strip of land “not exceeding sixty feet wide,” may limit the width of its appropriation to less than sixty feet; but, unless [637] such limitation affirmatively appears, it will be presumed that it has appropriated the full width allowed by its charter: Prather v. Telegraph Co., 14 Am. & Eng. R. Cas. 1; Phila. etc. R. Co. v. Obert, 109 Pa. 193. It is true that in Prather’s case the company had entered on his land and constructed its road there, while in the case at bar the company is not in the actual possession of any portion of the appellant’s lot. But this distinction in the facts cannot affect the presumption, because there would be no room for it in any case, if the right of way was defined by the extent of a company’s actual possession and use of the land. The lines of a street on which a railroad company locates the centre line of its road and lays its tracks, are not necessarily, nor presumed to be, the boundaries of its right of way. These may be within, beyond, or upon the lines of the street; but, in either case, it is the duty of the company to designate them by some appropriate and decisive act. A company which refuses, when requested by the lot-owner, to define its right of way by marking the outside lines, may be expected, when its necessities or interests require it, to claim an appropriation of the full width of sixty feet, and to invoke the presumption already mentioned in support of the claim. It is contended for the appellee that when a railroad company locates its road upon a public street, the adjoining lot-owner has no right, under the act of 1849, to a view to appraise damages, unless the company in the construction of its road has made an excavation or embankment which injuriously affects his property. This is true if the location is exclusively upon the street, but not so if it includes a portion of the adjoining lot. In the case at bar the question is whether the location embraces a part of the appellant’s land; and, in the absence of any designation of its boundaries, the presumption is that it extends thirty feet on each side of its centre line. The extent of its appropriation for a right of way is peculiarly within the knowledge of, and can be easily shown by the company. If it has taken for that purpose less than the full width of sixty feet, it can readily point to its action limiting and fixing the boundaries of its appropriation, and it is but just and reasonable that it should be required to do so. This action should not be doubtful or evasive in its character, but it should be sufficiently plain and decisive to inform and protect the landowner. [638] We are clearly of opinion tbat, in view of tbe presumption we have considered and the evidence submitted by the appellant, the court below erred in directing a verdict for the company. Judgment reversed, and venire facias de novo awarded.