Donora Southern Railroad v. Pennsylvania Railroad

62 A. 367, 213 Pa. 119, 1905 Pa. LEXIS 388

• Court: Supreme Court of Pennsylvania
• Decided: November 4, 1905
• Docket: Appeal, No. 49
• Status: Published

Opinion

Pee Cueiam,

This was a bill for injunction against a threatened repetition of the action of defendant in tearing np the tracks of the plaintiff, and incidentally for assessment of the damages for the acts already committed.

The title to the land was in dispute. In 1902, plaintiff, a Pennsylvania corporation, located its route and constructed a portion of it on this land by agreement with one Bamford who was then and had been for many years in possession under claim of title. On May 21* 1904, Bamford conveyed the land to plaintiff which had previously constructed additional tracks to those built in 1902.

In 1903 the defendants’ lessor acquired an adverse title to the land, but, as found by the court below, with knowledge of Bamford’s possession. And the defendants made no claim to title prior to 1903, and no effort to take possession until May 16, 1904, when it entered and tore up complainant’s rails.

On these facts the court found as conclusions of law:

“ 1. That in 1902 the plaintiff company had power to take and condemn a right of way across the land, without regard to who owned it, and having found Bamford in long possession, it had entered and built part of its tracks with his consent.

“ 2. That defendants’ lessor when it acquired title in 1903 took subject to a visible easement thereon, and cannot now call in question the legality of the plaintiff’s previous entry and appropriation.

“ 3.- That this is not an ejectment suit and that it is not necessary for the court to adjudicate the title to the land.

“4. That the plaintiff company was in possession of its right of way under permission from one who was in possession under color of title and who made a claim of title that had such a reasonable basis as would put the defendant companies who never were in possession, at least so far as the ground covered by the right of way was concerned, to an action at law to test their rights. The defendant companies took the law into their own hands and undertook by force to redress what they claimed was an invasion of their rights, and in addition they threaten a repetition of this force, if the plaintiff company should attempt to restore the tracks destroyed. In doing so they committed a wrong, the repetition of which should be restrained.

“5. That an injunction should issue, and damages should be assessed at $1,000, but that the injunction granted and the findings of fact and conclusions of law, which are held to justify it being granted, are not to prejudice the right of either of the parties hereto to establish, maintain or defend in a court of law its title and right of possession to the said 6.73 acres of land described in the fourth paragraph of the plaintiff’s bill, or any part thereof, or its legal or equitable right of possession to the strip of land over and across said tract of land covered by the location of the plaintiff company’s main line and branch B.”

On these findings and conclusions the decree is affirmed.