Robinson v. West Pennsylvania Railroad , 1873 Pa. LEXIS 15 ( 1873 )

The opinion of the court was delivered, by

Williams, J.

It wrns decided in Craig v. The City of Allegheny, 3 P. F. Smith 477, that, under the deed of Wm. Robinson, Jr., the Commonwealth took an absolute estate in perpetuity to the land thereby granted for the construction of the Pennsylvania Canal, and that it did not revert to the grantor or his alienee on the cessation of its use, or abandonment as a canal. But the question as to the proper construction of the clause in the deed “ excepting therefrom ground for a basin,” did not arise in that case. What then was the effect of the exception as it respects the land which was taken and used for the purpose of constructing the basin ? It undoubtedly excepted the land out of the operation of the grant, and was so intended. But did it, as the plaintiffs in error contend, recognise and permit its use as a basin, and subject it to such servitude as long as it might be so used ? And did the right to its possession revert to the grantor discharged of the servitude, when the canal was abandoned and it ceased to be used ? There is nothing in the language of the exceptional clause taken by itself, or in connection with the terms of the grant, which countenances such a construction. Why should the Commonwealth consent to take and hold a less estate or interest in the basin than in the bed of the canal or towing-path ? The basin was as necessary a part of the improvement as either, and its use was intended to be as permanent. There was then the same reason for taking an absolute estate in one as the other. Besides, why should an exception out of a grant of land to the public receive a different construction from that which would be given to it, if the grant had been made to a private person ? It would be a strange construction to hold that a clause excepting part of that which is granted, is the grant of the use of the part excepted. If it had been intended to grant the use of the land, can there be a doubt that it would have been granted in express terms and by apt words ? It is too plain to admit of argument that, in excepting the ground taken for a basin, it was not intended to grant its use. The whole purpose and effect of the exception was to exclude the ground so taken from the operation of the grant, and to leave it in the same condition as it would have been, if no grant had been made. There can be no doubt of the right of the Commonwealth, under the Acts 25th February 1826, Pamph L. 55, and 9th of April 1827, Pamph L. 192, to take the land for the purpose of constructing the basin; nor of the owner’s right to have the damages which he sustained by reason thereof, assessed under the provision of the latter act. But the right of the Commonwealth to the land so taken, was an absolute estate in perpetuity; Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Pennsylvania Railroad, 14 Wright 425; and could not be defeated or impaired by the owner’s neglect or refusal to make application for the assessment of his damages within the time limited by the act. It follows that there was no error in the construction given to the exceptional clause in the deed by the court below, and that the plaintiffs were not entitled to recover.

Judgment affirmed.