East Pennsylvania Railroad v. Schollenberger

54 Pa. 144, 1867 Pa. LEXIS 80

• Court: Supreme Court of Pennsylvania
• Decided: March 11, 1867
• Status: Published

Opinion

The opinion of the court was delivered, by

Woodward, C. J.

The East Pennsylvania Railroad Company having taken 4 acres and 57 perches of land from the farm of John Schollenberger for railroad purposes, and having also occupied another portion of his land for deposit of gravel, dirt and the like, he instituted this proceeding for the recovery of damages, and on the trial in the court below the chief defence relied on by the company was a parol agreement by which, as the company allege, the plaintiff agreed to grant the company the right of way, or land for the roadway free of charge in consideration of the company’s changing the route through plaintiff’s land, which had been located over a spring and nearer the buildings than the one subsequently adopted, which offer the company accepted and changed their route accordingly.

The court submitted the evidence of this contract to the jury, having first explained to them the essential elements of a contract, and on a careful perusal of the testimony we do not wonder the jury failed to find an agreement to release damages. Railroad companies generally run several experimental lines, and their officers and engineers discuss with landowners the practicability, advantages and disadvantages of the respective routes. This is the substance of what was done in this case. A line having been started out that crossed Schollenberger’s spring, and approached nearer than was agreeable to his buildings, the president of the company applied to him to sign a release of damages, which he did not do, but said to the president that if he would locate the road “ further up,” or as the corrected evidence has it, “ further over,” he would give the land for nothing, and the president said he would try to accommodate. This was the substance of the strongest evidence in support of the release, and it is entirely too slight to prove the grant of a right of way or a release of damages, for there was no designation of the land released. If the road was taken from its first location and put “ further up,” or “further over,” there is no evidence that it was put on the ground Sehollenberger meant to release, and can be none because there was no designation of that ground between the contracting parties. The reference to it -was in language too indefinite and indescriptive for a land contract. Nor was there any acceptance of the offer, such as it was. The promise to try to accommodate was scarcely the consummation of the contract.

The right of passage which a railroad corporation acquires across the land of a citizen is an interest in the land, and must come either by a private purchase or by the exercise of the power of eminent domain which the state has vested in them. In the one mode of acquisition, the price agreed upon must be paid ; in the other, the damages assessed according to the provisions of law. But if the company alleges that the damages have been released, and the right of way surrendered as a gratuity, they should' come prepared with evidence fitted to the gravity of the occasion ; we do not say that such a release may not be proved by parol, though the practice is to take it in writing, and Mr. Clymer, when he went to get Schollenberger’s release, was provided with a written or printed form, which Sehollenberger refused to sign ; but if a company, having tried unsuccessfully to get a written release, undertakes to prove one by parol, the evidence should be more clear, definite and uncontradicted than was relied on in this case. The court submitted it all to the jury with the remark that “ if the agreement was for a general release of the land without qualification or reservation it is tantamount to a release of right of way or a general release.” This was as much as the company could reasonably expect — more, perhaps, than in strictness they had a right to demand. But this is said to be a vague and evasive answer of the defendant’s 1st point. We do not think so. The point proposed that the court should charge upon one view of the facts, that Sehollenberger was estopped, and they charged that if upon a comprehensive view of the whole case the agreement was made out, he should be estopped. This was a sufficient answer of the point. The 2d error assigned is founded upon a distinction suggested between the land and other damages for inconvenience, &c. Undoubtedly if the rule was so special as to distinguish between the value of the land and other damages; the company were not injured by the court’s pointing the jury to that distinction, and limiting the plaintiff’s right to damages to that only which he had not released.

In answer to the 3d error, we observe that if the company had, under their charter and our general railroad law, the implied right to deposit stone and earth upon the plaintiff’s land, outside of the 60 feet appropriated to the road, there was no error in submitting this matter as an item of damages. In some sense it was taking the plaintiff’s land and, if necessary to the construction of their road, it was a proper subject for compensation.

The judgment is affirmed.