Harvey v. Lloyd , 1846 Pa. LEXIS 115 ( 1846 )

Burnside, J.

The defendants in error, who were plaintiffs below, exhibited a proceeding for a lateral railroad, from their coal-mine, over the land of the plaintiff in error, to the pool of the Nanticoke Dam, on the North Branch division of the Pennsylvania Canal; in pursuance of the act of the 5th May, 1832. Pamphlet Laws, 501; Purdon, 155, sixth edition. Viewers and appraisers were appointed, who found the necessity of the road, and appraised the damage sustained by Harvey, at $300. From this report Harvey appealed. On the trial of the appeal, in the Common Pleas, the jury found for the plaintiffs; and further, found the necessity of the road, on the route as located by the viewers, and assessed the damages to be paid to the plaintiff in error, at $575.

On this verdict the court entered judgment. On the trial, the counsel of Harvey took six bills of exceptions to evidence.

First. To the admission, in evidence, of the petition for the view, and to the notice to Harvey of the application; because the petition and notice were not signed by the owners of the coal-mine. The petition was in the name of the owners, and the names of all the owners were put to the petition by John Bennet, their agent and lessee. The notice was signed by G. W. Woodward, attorney for Charles Lloyd, Thomas Bennet, Ellis Lewis, Ebenezer Greenough, and William Parsons. We deem this a substantial compliance with the act of the legislature, which requires the proceedings to be in the name of the owners. Here the petition and notice was in the name of the owners, by their agent and attorney. There was no error in admitting the petition and notice in evidence.

Second. The second bill of exceptions was, to the admitting in evidence to the jury, the notice to the defendant, of Charles Lloyd, Thomas Bennet, Ellis Lewis, Ebenezer Greenough, and William Parsons, of the time and place of the meeting of the viewers, because it did not pursue the petition and order. The notice referred to the petition and draft filed. It gave the names of the viewers, and of the time and place of meeting, as well as the duty to be performed, and advised the plaintiff in error to attend, if he thought proper. We see no variance between the notice and the petition and order.

Third. The third exception was to the admitting in evidence the whole proceedings of the viewers, and appeal of the defendant. The record of the proceedings in the case, so far as the cause had progressed, was properly admitted.

Fourth and fifth have been argued together. The plaintiffs had proved by Freeman Thomas, that the railroad was highly necessary and useful to their coal bed, and further offered to prove by the witness, the capacity of the road built by him to convey coal, (which was to be part of the road laid out by the plaintiffs,) that it had not sufficient capacity to accommodate the plaintiffs, and that there was but three tracts of coal land which could find an outlet at the place where this road crosses the defendant’s land; and this, for the purpose of showing that there would be but a small quantity of coal to be deposited at his landing. All this was clearly proper to go to the jury, to enable them to determine, first, the necessity for the road; and secondly, the damage which this right of way would be to the defendant. It would have been impossible for the jury to have come to a just conclusion on the questions which they had to determine, if the evidence, which explained all the circumstances of the case, had been excluded from their consideration.

Sixth. The defendant’s counsel proposed to call a witness, to prove how much the property of Harvey would be injured by the proposed road; and how much the property of the plaintiffs would be enhanced in value, by the privilege of making the road as vset forth in the application.

The court very properly admitted the question to be answered, so far as it related to the injury of Harvey, the defendant. Their decision was equally correct in rejecting proof of the benefit to the plaintiffs. If a defendant, living on the bank of the Pennsylvania Canal, was to receive the value of the coal-mine behind his strip on the river, the lateral railroad law would be a dead letter. It would be no benefit, either to the owner of the, mine in the rear, or to the public. No one would be so foolish as to build a railroad, and dig his coal for the benefit of another.

Seventh. The last error assigned is to the court’s answers to the defendant’s points.

The charge of the learned judge of the special court is so full and perfect an answer to the questions raised, that I deem it unnecessary to take them up in detail. The argument of the defendant, that the act of Assembly authorizes the taking of the land of one, and giving it to another, is a perfect fallacy. All that the act does, is the giving of one the right of way over the land of another, for a special purpose, after making full compensation. This is within the letter and spirit of the defendant’s grant, and shows the wisdom of the proprietor of Pennsylvania, and the Commonwealth since the Revolution, which gave to every man sis per cent, for roads and highways, which he holds in trust for the benefit of the public, until the road or highway is required.

The judgment is affirmed.