Harrisburg & Potomac Railroad v. Peffer

84 Pa. 295

• Court: Supreme Court of Pennsylvania
• Decided: May 21, 1877
• Status: Published

Opinion

The judgment of the Supreme Court, was entered

Per Curiam.

The question of the regularity of the judgment upon the award of damages was not raised in the court below. It is simply technical, and if made below would have been amended.

The next question brought up here is the right of the railroad company to have a stay of execution under the Act of 16th June 1886, sect. 3. That act applies to the recovery of money due by contract, or of damages arising from a breach of contract. Damages for the taking of property by a railroad company does not rest in contract express or implied. It arises by an act of appropriation under the state power of eminent domain. It is an exercise of power which the individual cannot resist, if prosecuted according to the constitution and law of the state. The owner of the property has no voice in the taking, except to demand that his property shall not be taken without payment or security as required by the constitution. But the entry of the company is a seizure, and an.appropriation to the use of the company which needs no consent to give it efficacy, if the conditions of the constitution and law be complied with. Nor is there any reason why the railroad company should demand a postponement of payment, when it has acquired possession by its own seizure. Payment may have to, does often wait, on the necessary proceeding to liquidate the damages; but this done, postponement of payment is in derogation of the constitutional right of the citizen, and -the law should not be expounded to cover such a case, beyond its literal terms.

Execution affirmed in each ease.