Meginnis & Swartz v. Nunamaker , 64 Pa. 374 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— The Act of Assembly of April 23d 1857, Pamph. L. 297, although not so termed, is evidently a supplement to the General Road Law of June 13th 1836, Pamph. L. 551. Its title is “An Act to amend the Road Laws of Bucks county,” and it is clear that in all points in which special provision by way of amendment is not made, the general law must govern. By the 8th section of the Act of 1836, the amount of damages awarded to any landowner is to be paid to the party entitled thereto : and the party thus referred to is “ the owner of any land through which a public road shall be opened.” When, therefore, the 4th section of the Act of 1857 directs that the damages found and confirmed “ shall be paid as directed by law,” it means not merely that they shall be paid out of the county treasury, but to the owner through whose land the road is opened. Until the order is finally made to open the road the proceedings are in fieri, and may result in no road being opened at all. The party to whom the damages are awarded in the first instance has no vested right to receive them, until the final order; and if before that he sells and conveys tbe land, the right to receive them passes with the land to the vendee, unless prevented by some special agreement.

It is contended that because under the 3d section of the Act of 1857 the vendor might before the sale have released all claim for damages, and that his vendee would then have no right of action against him on his covenant of warranty, according to Dobbins v. Brown, 2 Jones 75, that this demand cannot be supported. The consideration of such a release is the prospective advantage of the road to the land, and this the vendee would have enjoyed. For the technical reason given in that case that the entry of the public under the right of eminent domain is no evidence within the terms of the covenant, he could not have maintained an action against his grantor. Here the vendor insisted that the damage was greater than the advantages, and his vendee is the one who has suffered that damage, by his land having been taken. In equity, then, he is entitled to the money and may well recover it as money had and received to his use.

Judgment affirmed.