Graham v. Pittsburgh etc. R. Co.

Opinion, Mr. Justice Clark: The plaintiff is the owner of a tract of land in Mahoning township, Lawrence county, through which formerly passed the Ohio & Pennsylvania Canal, a small portion of his land lying between the canal and the Mahoning river. In 1873, the canal was abandoned; and in November, 1877, the Pittsburgh & Lake Erie Railroad Co., claiming to own the land occupied by the canal, entered and began the construction of their road, which was completed in the fall of 1878. About the year 1882, the Pittsburgh, Cleveland & Toledo Railroad Co. purchased of. the plaintiff, in fee, for railroad purposes, a strip of land sixty feet in width, adjoining the land occupied by the defendant and extending across the entire tract,'and built their railroad thereon. The plaintiff subsequently brought an ejectment against the Pittsburgh & Lake Erie Railroad Co., the defendant, to settle the title to the Strip occupied by their road, formerly covered by the canal, and recovered a judgment, thereby establishing the fact that the original entry by the defendant company for the construction of their road was a trespass upon the plaintiff’s land. The subsequent maintenance of the road thereon was therefore a continuing trespass, until the right of way vested in the company, on the approval of their bond on December 3, 1890. For redress of the injuries resulting from this invasion of the plaintiff’s rights, he had, of course, his remedy by an action of trespass: Harrisburg v. Crangle, 3 W. & S. 460 ; McClinton v. Railway Co., 66 Pa. 404; Dimmick v. Brodhead, 75 Pa. 464. The effect of the subsequent statutory proceeding to assess damages was to divest the title as of the date of filing the bond. In the action of trespass, if one had been brought, the plaintiff would have been entitled to recover damages for the tortious entry, and for any injuries he suffered from that date until the title of the right of way was vested in the company, not as these injuries affected the value of the land, but the enjoyment of it; whereas, in the proceeding to assess damages [514] under the statute, the measure of damages would be computed upon the value of the .land, unaffected by the obstruction of the plaintiff’s road, and its value as affected by it. The 'action of trespass is for the recovery of the damages accrued in the past, whilst the assessment under the statute is for the price of a permanent right or privilege to be enjoyed in the future; but that price must be settled upon a consideration of the value of the land at the time of its lawful appropriation, as it was or in the condition it was before the railroad was constructed, and its value afterwards. This necessarily involves a knowledge and consideration of the condition of the land before the railroad was built. For, although the damages are to be computed as of the date of the divestiture of the plaintiff’s title to the right of way, yet it is plain that the land must be valued, in the first instance, free from the obstructions of the plaintiff’s road, and in the condition in which the defendant company found it upon their first entry: Justice v. Railroad Co., 87 Pa. 28. As, at the time of the filing of the bond, the plaintiff had established his right to the property free from the obstruction of the railroad, he has a right to have the assessment made of the land in that state. The sale to the Pittsburgh, Cleveland & Toledo Railroad Co., was, of course, made under stress of the conditions affecting the land at the time, and may have been for a much less consideration than would otherwise have been available : non constat, that but for the appropriation of the defendant’s right of way the sale of the adjacent strip would ever have been made,• for although the first appropriation was wrongful, it was of a manifestly permanent nature, and was capable of being perfected under the statute. In estimating the injury done to the plaintiff in the taking of his land for right of way, the value of the land, unaffected by the construction of the railroad, is necessarily referable to some previous condition, for the railroad, at the time of the filing of the bond, was in full operation: we must go back to the time of original entry, to ascertain the condition of the land, upon which the value is to be computed as of the date of the actual and lawful appropriation. What was the condition of the land when the railroad company first entered for the construction of the railroad ? What was its value in that condition on Decern [515] ber 3, 1890, unaffected by tbe railroad, and what its valúe as affected by the railroad? The difference would be the proper measure of damages. There is a class of cases in which the company has been held to have acquired such an equity as entitled it to a conditional verdict or decree, and an assessment of damages made, in execution of the company’s right. In Wheeling etc. R. Co. v. Warrell, 122 Pa. 613, the parties submitted the assessment of damages to certain persons named, who made an award; and, although the amount awarded had never been paid, yet this court held that “ by the award, and the agreement on which it was founded,” the company “ exhibited an equity which properly reduced the judgment to a conditional one, and thus relieved the defendant from a total loss of its improvements.” So, in Allegheny V. R. Co. v. Colwell, 2 Mona. 300, decided at the October Term 1888, and not officially reported, it was said: “ But, as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements; ” and execution was accordingly stayed, to enable the company to proceed under the statute. In Oliver v. Railway Co., 131 Pa. 408, where the entry was under a lease from the life-tenant, and with the knowledge and acquiescence of the guardian of the person entitled in remainder, who saw the expenditures made in the construction of the road, it was held that the entry so made could not be treated as a trespass. “ In all the cases, however, in which the entry was made with the knowledge and consent of the owner,” says our Brother Williams in that case, “the action has been treated as equitable in character. The corporation, having been permitted to enter in advance of the ascertainment of damages, did not thereby lose its right to proceed in the usual manner to secure their adjustment through the courts, and the action of ejectment has been sustained as a means of quickening the action of the corporation in this regard. While the owner has not parted with his title by his own conveyance, or had it divested by proceedings under the statute, he has parted with the possession under circumstances, and permitted expenditures upon and use of the property of such a character, as to make it inequitable for him to [516] resume the possession, or to defeat the right of the corporation to proceed under the statute, and add to its lawful possession a lawful title by virtue of a compliance with its provisions.” In all such cases as we have cited, the assessment covers the entire damages, with like effect as if the bond was filed at the time of the original entry. The title of the railroad company, in such a case, comes, not through the proceeding to assess the damages, but through its original entry and appropriation of the right of way, with the consent or without the objection of the ‘owner: Lawrence’s App., 78 Pa. 865. But, in the case'now-under consideration, the defendant entered, at the outset, under a contested claim to the land, in fee. The plaintiff brought an ejectment, agid the title was held to be in him. The company was found to be a trespasser, and was answerable as a trespasser, to the extent already stated. There was no equity exhibited, nor was any invoked, which would have justified a conditional judgment. The damages for the right of way are therefore to be estimated according to the general rule established in such cases. The second, third, fourth and fifth assignments of error are Sustained. The offer embraced in the first assignment was not directed to the proper subject of inquiry, and was therefore not admissible. The judgment is reversed, and a venire facias de novo awarded.