Wheeling, P. & B. R. v. Warrell ( 1888 )

Peb Cubiam :

This case is not very complex either in its facts or in the law governing them. The only method by which this company, or its predecessor, could acquire any right whatever in lands, was by making composition with the owner or owners thereof, or by the tender of a bond with sufficient security to cover the damages which might result from its entry and occupancy of the premises, and without so making or securing payment it was absolutely prohibited from such entry or occupancy. Prom this it follows that there could be no presumption in favor of the company: it must affirmatively show its right or fail in its defence. The award of October 24, 1860, was its only escape from a peremptory and immediate ejectment. By that award, and the agreement on which it was founded, it exhibited an equity which properly reduced the judgment to a conditional one, and thus relieved the defendant from a total loss of its improvements. That the plaintiff had the right to maintain this suit there is no doubt. He was the owner of the legal title ; hence, was the proper person to enforce tlie award. But, without this, if he were but one of a number of tenants in common, his right to maintain ejectment could not be questioned. Finally, after a careful scrutiny of this case, we are free to say that the learned judge of the court below has disposed of it with admirable clearness and precision, and we, without hesitation, adopt what he has done.

The judgment is affirmed with a stay of execution for 90 days from the date of the filing of this opinion, within which time the defendant may pay off the judgment with its interest and costs.