Lawrence & Others' Appeal , 78 Pa. 365 ( 1875 )

Judgment was entered in the Supreme Court, June 8th 1875,

Per Curiam.

We find no error in this decree. The railroad company had actually appropriated the land, and built and used its railway long before any title by lease of the coal mines had vested in the defendants. This is admitted in the answer. Th e owner of the land made no objection to this appropriation, but after a proceeding to assess the damages had been prosecuted, finally compromised and released. The title of the railroad company came not through this proceeding, but by its original entry and appropriation without objection. The release operated not by way of an original conveyance, but by way of a discharge for the damages incurred by the entry and construction of the railway. It is clear therefore that when the defendants obtained their lease they took it subject to the previous easement and right of way of the railroad company over the surface. The railroad was then in lawful existence and use. The owners made no defence to the right of the railroad company to appropriate the land, and their tenants cannot now set up a defence which they waived, if they had any. The Act of 1849 does not compel a railroad company to remove its track, though it gives the authority. A most necessary provision for the security of the company and of the public. To hold the law to be mandatory would result in its being compelled to shift the location, involving perhaps an extensive change of gradients, as often as the mine owner honeycombs the earth beneath the railway.

Decree affirmed with costs and appeal dismissed..