Philadelphia, Newtown & New York Railroad v. Cooper

Chief Justice Meecur

delivered the opinion of the court, March 3, 1884.

The corporation had no right to take possession of the land in question against the will of the owner, without paying or securing the payment of a just compensation therefor, before such taking: Art. XVI, sec. 8 of the Constitution. This protection to private property thus secured by the organic law, is not to be destroyed or frittered away by any artful device.

The jury has found that the company did not take possession of this land under any agreement with the owner, and that it has not paid according to the agreement which it afterwards made. It wholly omitted to secure the payment prescribed by the statute to give it a right to take possession. Its entry was therefore a trespass. McClinton v. Railroad Co., 16 P. F. Smith, 404; Gilmore v. Railroad Company, decided at the present term, 8 Out., 275.

The owner has not received the compensation which the company, after taking possession, agreed to pay him. It has taken private property without paying or securing payment therefor to the owner, and seeks to hold possession thereof against his will. This it cannot legally do. The attempt is in flagrant violation of the constitution.

The legal title on the footing of a contract, remains in the owner of the land until the vendee fulfills its agreement of purchase. On that title he can maintain an action of ejectment. The ease does not stand as if security had been given under the statute. Western Pennsylvania Railroad Co. v. Johnston, 9 P. F. Smith, 290; Fries v. Southern Pennsylvania Railroad and Mining Company, 4 Norris, 73.

The company did not ask for a conditional verdict. It claimed to hold the whole title adversely to the plaintiff below, and attempted to defeat the action. If its .position is now worse than it otherwise might have been, it is caused by its own act in setting up a claim which the jury found to be untrue. It wilfully refrained from asserting its equities on the trial. It asked for no conditional verdict to protect them. The corporation cannot defeat a right to recover, under a contract which it did not fulfil.

The charge of the learned judge is quite as favorable as the company was entitled to ask for. If there be any error therein, it is in favor of the company.

Judgment affirmed.