Gilmore v. Pittsburgh , 1884 Pa. LEXIS 9 ( 1883 )

The opinion of the court was delivered January 7th 1S84, by

Mercur, C. J.

This case arises on a claim of plaintiffs to recover damages by reason of the construction of the defendants’ railroad on their land.

The evidence covered by the first specification of error was properly rejected. The offer contains three distinct propositions. 1. That the premises have been endangered from fire. 2. That the property is endangered by fire. 3. That since the road was operated, the fence on each side has several times been on fire. There is no offer to show that operating the railroad had caused the fire, or had, or would endanger the property. There are other sufficient reasons for its rejection; Distinct injuries sustained after the road is fully completed and operated do not constitute damages to be separately assessed under the statute. While the court rejected the offer as made, and said the jury would not be allowed to give any damages for probable accidents or fh'es in the future, yet all the facts in reference to the location of the property, and its proximity to the railroad and passing cars, might be given in evidence. This is all the plaintiffs were entitled to show. In forming his opiuion as to the measure of damages a witness may consider all the injuries which will probably and naturally result from the reasonable and usual operation of the road. 'Damages beyond these afterwards sustained, must be recovered by action on the case.

The evidence covered by the second specification, is not so free from error.

Under its right of eminent domain the Commonwealth may take private property for public use. Every person who owns lands in this state, holds it subject to that paramount right. The legislature may grant, and does grant, to railroad corporations and some others, the right to take private property for public uses. But neither the Commonwealth nor its locum tenens can take it without compensation.

Article XVI. section 8, of the Constitution declares, “municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”

When a railroad corporation and the owner of the private property taken or injured, cannot agree upon the amount of damages claimed ; and when the corporation has not paid them, the legislature has provided the manuer in which they shall be ascertained, and directed how the payment thereof shall be secured. Until actual payment of the damages, or security given for' their payment when ascertained, the corporation has no right to construct or enlarge its works on private property, nor to injure or destroy the same. By so doing before payment made or security therefor given, it becomes a trespasser; and an action of trespass will lie against the party entering on the land, although the security be afterwards given : Dimmick v. Brodhead, 25 P. F. Smith 464 ; or if permanent possession by the laying of rails bo thus illegally taken, the owner of the land can maintain ejectment to recover possession thereof: Levering v. Philadelphia, Germantown & Morristown Railroad Company, 8 W. & S. 459; McClinton v. Railroad Co., 16 P. F. Smith 404.

The witnesses do not agree as to the time the survey for the road was first made through the lands of the plaintiffs. Gilbert Bake fixes it in 1868 or 1869. D. P. Corwin, secretary of the defendant, swears ho thinks it was first located there “early in the year of 1871.” On cross-examination of this witness, the following questions and answers-appear.

Q. At what time was the first survey made along this line, and shown by centre stakes?

A. There was a series of surveys made, and evidenced fcy certain stakes on the ground. There were two lines run there.

Q. At what time was there a final location, and side stakes set?

A. In April or May 1879.

The whole work in constructing the road on the land of the. plaintiffs was in the month of June 1879. Corn and potatoes were then growing on it. They were probably planted in April or May. Their destruction in making the road was claimed as an item of damage. The evidence covered by the second assignment appears to have been admitted under the view that no damages should be allowed for this item, if the plaintiffs knew when planting them, that stakes indicating location, had previously been set there, and the defendant was engaged in constructing the road on adjoining lands.

This is a misapprehension of the law, under the undoubted facts of the case. Conceding that stakes had been set on the ground either in 1868 or 1869, or not until 1871, or at each time, as it is shown two lines were run, the defendant thereby, acquired no riglit to take possession and occupy the lands. Actual payment of damages or security therefor duly approved must precede the taking. The plaintiffs were under no legal obligation to refrain from using their property by reason of any expectation that the defendant might afterwards take it. Although the compensation is usually called damages, yet it is in fact the consideration or price of a privilege purchased. Until the company made a permanent location, it was not liable for damages under tlie statute. When these crops were planted it had not made such location, nor had it given the required security. The bond was not filed until in June 1879 ; whether before or after the land was taken, or when the bond was approved, does not appear. The defendant acquired no right to the possession until the security was approved by the court of Common Pleas. If the plaintiffs had refrained from using their lands for the eight or ten years which intervened between the running of the first line, and the final location of the road, it is very dear they could not have recovered damages for that interval of time. Until final location was made, the defendant was not in position to compel a sale of the privilege. Without payment or security it had no right to take possession. Prior thereto the plaintiffs’ full right to the enjoyment of their property remained unimpaired. It follows the court erred in receiving the evidence covered by the second assignment.

3. Under the rule of allowing much latitude to a court in construing its own rules, we cannot say it erred in admitting the depositions of absent witnesses.

4. There was no error in refusing to strike out the testimony of the witness named. It was received without objection. The proper course was to ask the court to instruct in regard to its effect: Ashton v. Sproule, 11 Casey 492; Oswald v. Kennedy, 12 Wright 9.

The 5th and 6th assignments are not sustained. The 7th is not assigned according to the rules and cannot be considered.

Judgment reversed and a venire facias de novo awarded.