Studebaker v. New Castle Gas Co. , 7 Pa. Super. 641 ( 1898 )

Opinion by

Orlady, J.,

The defendant company could assert its right of eminent domain under the Act of May 29, 1885, P. L. 29, only after a literal observance of that statute, and whatever of doubt there may have been at the time of the entry upon the plaintiff’s lands of its own right, it could have been avoided by following the requirements of the tenth section of the act, which provides : “ Prior to any appropriation, the corporation shall attempt to agree with the owner as to the damage properly payable for an easement in his or her property, if such owner can be found and is sui juris, failing to agree, the corporation shall tender to the property owner a bond with sufficient sureties to secure him or her in the payment of damages; if the owner refuse to accept said bond or cannot be found or is not sui juris, the same shall then be presented to the court of common pleas of the proper county after reasonable notice to the property owner by advertisement or otherwise to be approved by it. Upon the approval of the bond and its being filed, the right of the corporation to enter upon the enjoyment of its easement shall be complete.”

The mooted fact as to whether a bond was tendered and accepted by the plaintiff before the entry was made, was the principal one in the case.

The defendant’s first point, “If defendant tendered and plaintiff accepted and retained the bond in his possession up until the case was called for trial, there can be no recovery, and the verdict should be for the defendant,” was answered by the court thus: “ Affirmed, but you heard what these three men said.” Of this it is complained that the defendant was entitled to an unqualified affirmance, which is correct if the fact as therein stated was undisputed or was so clearly proved as to make it beyond doubt, but three witnesses for the plaintiff had testified that the bond was not accepted and the addition, “ but you heard what those three men said,” was nothing more than calling the attention of the jury to the fact that the proposition was affirmed if they found the fact as therein declared.

The burden was on the plaintiff to explain to the jury why he had held the bond from January until the time of the trial in June, 1897, and the verdict implies that his explanation was convincing. The fact that he coupled his acceptance of the bond with an unreasonable condition cannot affect his right to recover, and the compensation to which he was entitled could not be determined by what his neighbors accepted. The land was his own. He had an undoubted right to withhold his acceptance of a bond in-the penal sum of $25.00, signed by strangers until he had time to confer with his counsel as to the sufficiency of the bond and sureties. The desired easement was for the benefit of the corporation and it was to relieve just such controversies that the act of assembly was passed.

The defendant elected to act under the uncertain acceptance of the bond rather than make its position free from doubt by complying with the statute by filing it in court.

The defendant’s fourth point, viz: “ If the defendant company entered upon plaintiff’s land in good faith, believing it had the right to do so, and the tendering of the bond and its retention by the plaintiff up to the trial of the case is evidence of such faith, the jury ought not to impose punitive damages,” was thus answered, “ If the jury believe there was no unnecessary force or breach of the peace on the part of the defendants, affirmed,” and was correct under the facts as developed on the trial.

The controversy in regard to the acceptance of the bond was well understood, the plaintiff was urging conditions which were not acquiesced in, the defendant insisted upon entering upon the land, the plaintiff made an information before a magistrate charging forcible entry, and when an attempt was made to execute the warrant, the representatives of the company defied the constable and with some display of violence entered upon the land.

Resort to force or intimidation must not be sanctioned and a landowner has a clear right to insist on a literal compliance with the statute which authorizes any corporation to invade his property.

Immediately following the part of the charge of the court covered by the eight assignments of error, the trial judge told the jury: “ Take this case and from the evidence and from your own good common sense say whether or not these men acted under the belief that they were going according to law and they had rights there and were not exceeding their rights; if they did then there should be no punitive damages, and if they did not then it is for you.”

The evidence shows that the first entry upon the land was without the owner’s consent and accompanied by physical violence ; that when the employees of the defendant were yet on the land of the plaintiff pursuant to the original entry, they resisted a constable who sought to arrest them.

There are some statements in the charge of the court which standing alone are objectionable, but taken as a whole with the points and the answers thereto we feel that the jury fairly understood that unless the defendant’s conduct was unauthorized because no bond had been accepted by the plaintiff or filed in court and that unnecessary force and violence were used in entering upon the land they should not impose punitive damages. If the charge as a whole is a correct and adequate presentation of the case to the jury it will be affirmed: Railroad Company v. Coon, 111 Pa. 430; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610.

The evidence was brief and clear, and was submitted to the jury in a plain and adequate charge. This action in trespass was justified under the authority of Keil v. Chartiers V. Gas Co., 131 Pa. 466, and other cases, as the right to sue vested on the commission of the trespass.

The assignments of error are overruled and the judgment is affirmed.