Fries v. Southern Pennsylvania Railroad & Mining Co. ( 1877 )

The judgment of the Supreme Court was entered, June 26th 1877,

Per Curiam.

— This case differs from that of the Western Pennsylvania Railroad Co. v. Johnston, 9 P. F. Smith 291. There the railroad company had neither paid the money nor given the bond required by the law as security, before entering on the land. The entry was therefore unlawful, and the land remained liable to the re-entry of the owner. The charter of the Western Pennsylvania Company subjected that company to payment of all the unpaid damages, which were declared to remain a lien on the road. But here the railroad company gave the required bond and entered lawfully. The easement of the company was therefore lawfully acquired, and passed to the purchaser under the mortgage unencumbered by any lien, except the judgment upon the report of viewers, which, however, was obtained after the mortgage had been recorded. As the consequence of these proceedings, the purchaser took a clear title and the land-owner was thrown back upon his bond. It is argued that the principles of ownership stated in Railroad Company v. Johnston ought to govern; because the owner’s right is protected by the constitution and the law. True, his right is thus protected, but not from a taking with payment, in the exercise of the right of eminent domain, even under the old constitution of 1790 ; while the more recent constitutions have placed the power to exercise the right of eminent domain upon the alternative also of security. The security being given in due course of law the grasp of the owner upon his property is loosened by die constitution itself, and consequently the easement acquired passes freed from his power to obtain payment otherwise than upon the bond, and the proceeding by assessment of damages given by the law. Under the judgment obtained in this proceeding execution may issue to collect the damages from the company taking the land.

Judgment affirmed.