Levering v. Philadelphia, Germantown & Norristown Railroad

8 Watts & Serg. 459

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1844
• Status: Published

Opinion

The opinion of the Court was delivered .by

Sergeant, J.

This case does not require the determination of those grave questions, which have been treated of in the argument, concerning the power of the Legislature under the Constitution to take away private property for public use. The Legislature of Pennsylvania in passing laws incorporating companies for constructing canals and railroads, has invariably conformed to the injunction of the constitution, by providing means for ascertaining the compensation to be made to owners and compelling its payment ; and the Act of Assembly now under consideration does not differ in that respect from others of a similar nature. The only question is the true construction of the Act of Assembly.

This Act was passed on the 17th February 1831. The 15th section enacts that in case of disagreement of the owners and company on the compensation, and if they cannot agree on the viewers, the Court of Common Pleas may appoint six men to estimate the damage, whose report being confirmed, judgment shall be entered thereon. “ Provided that either party may appeal to the court within 30 days after such report may have been filed in the Prothonotary’s office of the proper county, in the same manner as appeals are allowed by the provisions of the arbitration Act of the year 1810; and upon the coming in of such report and the confirmation thereof, or upon final judgment or appeal therefrom, and the said company pajdng to such owner the sum in such report or judgment specified, in full compensation for said lands or for the injury sustained as aforesaid, the said company shall become seised of the same estate in the said lands which the owner held in the same, and they and all who act under them, shall be acquitted and freed from all responsibility for and on account of such injury: Provided, upon payment or tender of payment by the said company, of the sum specified in the report of said viewers or appraisers to the owner of said land, the said president and managers of said company, their agents or contractors for making or repairing the said road, may immediately take and use the same without awaiting the issue of proceedings as hereinbefore prescribed.”

This section is certainly confused and obscure, and indeed may be said to be unintelligible; but interpreting it according to its obvious meaning and intent and by a comparison with former Acts, it becomes perspicuous and consistent. The object of the enactment is to provide a satisfactory mode of assessing the damages when the parties cannot agree; in the first place by six viewers appointed by the court with a right olf appeal to either party, and on payment by the company of such sum as becomes ascertained and fixed, they are to be seised of the estate in the land. This sum may be fixed by a report of the viewers not appealed from; in which case the company can at once make the payment or tender, and the right vests. But when an appeal takes place the sum is not fixed till final judgment, and the company cannot pay it till then. The appointment of viewers and a report by them is a matter ordinarily soon disposed of, and the company may well wait till that is done, before they commence their work. But where there is an appeal to a court and jury, it is well known considerable delay occurs in carrying on and terminating the trial, and it might be exceedingly injurious to the undertaking if the company should be compelled to wait its result before they could use the route. There is therefore given to them as a temporary favour, prior to final judgment and without waiting its result, a qualified right to enter upon and use the road in the meanwhile and until they can know by the result of the final judgment what sum they are to pay. When, however, final judgment is rendered, they are to pay the sum fixed by it. Their temporary right of user then ceases, and they are to become seised of the soil on payment of the amount of the judgment. This payment is a condition precedent which they are bound to perform or else they lose all right in the land of every description. Their temporary right of user as a way ceases on the rendition of final judgment, and their right to the soil is to take place only on payment of the amount of the judgment. They cannot hold the land in fee and yet refuse to pay the judgment any more than they can where there is a report of viewers unappealed from. The first proviso indicates the terms on which the company shall become seised of the soil; the second is to give them the temporary use in case of an appeal, until the amount shall be fixed by final judgment.

The whole confusion in the 15th section arises from the use of the word or in the first proviso, “ upon final judgment or appeal therefrom,” which it seems evident has been used instead of on. If this substitution is made, the whole is intelligible and plain: and that it ought to be may be inferred from various considerations. In the first place, the absurdity of saying “ on final judgment or appeal therefrom,” there being no such thing as appeal allowed from final judgment, but only from the report of viewers. In the next place, in all the former railroad Acts, this proviso is verbatim the same except that the word on is used and not or, which induces the belief that or has crept in by inadvertence. See the Act of 8th April 1826 incorporating The Danville and Potts-ville Railroad Company; Act of 11th April 1827 incorporating The Oxford Railroad Company; Act of 16th March 1830 incorporating The Philipsburg and Juniata Railroad Company; Act of 6th April 1830 incorporating the Middleport and Penn Creek Railroad Company; Act of 7th April 1830 incorporating the Beaver Meadow Railroad Company.

The subject will receive further illustration by noticing the former proviso in the Acts prior to the one now under consideration, and which was, so far as I have been able to ascertain, the first Act of Assembly in which the proviso was altered to its present shape. The proviso in former Acts was this: “Provided that the payment of damages aforesaid for land through which the said road may be laid shall be made before the said company or any person under their direction or in their employ shall be authorized to enter upon and break ground in the premises, except for the purpose of laying out and surveying such road, unless the consent of the owner of such land be first obtained.” Thus prior to the Act of 17th February 1831, incorporating The Philadelphia, Germantown and Norristown Railroad Company, no railroad company could even enter and break the ground until they paid the damages to the owner; but by the modification of the proviso they obtained the privilege, when a delay was occasioned by an appeal, to enter and temporarily use the land: but it never was intended to give them a right to the seisin of the soil without paying for the land at all. If the company are not able or not willing to pay for the land on the rendition of final judgment, they must give it up.

Judgment reversed and judgment for plaintiff with stay of execution for six months as per special decree, February 27th, 1845.