Quigley v. Penn. S. V. R.

Opinion,

Mr. Justice Sterrett :

A brief outline of facts on which this contention is based will conduce to a better ■ understanding of the questions involved.

In December, 1883, the railroad company, defendant, presented its petition to the Court of Common Pleas, setting forth that it desired “ to take and occupy for the purpose of constructing and operating its railroad, etc., all the right, title, interest, claim, and demand of Thomas J. Quigley, of, in, and to a certain private railroad siding, situate in the borough of Conshohocken, and the ground upon which the same rests, in so far as the same is located upon ” certain premises described by metes and bounds in said petition; that the company is unable to agree with said Quigley “ upon the compensation to be paid for the damages done or likely to be done or sustained in consequence of the taking and appropriation of said land; ” that a bond with sufficient sureties had been tendered to and refused by said Quigley, and praying the court to approve the bond and direct the same to be filed for the use and benefit of said Quigley. On notice to him, the bond was accordingly approved and filed, and thereupon the company entered upon the premises described in its petition and proceeded to construct its road.

In March, 1884, on Quigley’s petition, viewers were appointed “ to view the premises of said petitioner and assess the damages done and likely to be done to him, both direct and consequential, by reason of the taking of the lands of said petitioner, and the location, erection, and construction of the said railroad and its appurtenances, as required by the constitution and laws of this commonwealth, and make report,” etc.

The viewers reported they had “ estimated and determined that the railroad company shall pay to said Thomas J. Quigley the sum of $4,628, as the amount of damages to which he is entitled by reason of the said railroad company taking and occupying, for the purpose aforesaid, the premises described in said papers annexed to said petition, and also for the said materials therein contained, and they further report that the ground taken as aforesaid is land used solely for business purposes, and on which a siding has been constructed for the use of the petitioner in his business.” The report having been filed and confirmed nisi, the defendant company on April 26, 1884, appealed therefrom, and on the trial of that issue the rulings complained of were made.

In his instructions to the jury the learned judge assumed the position that plaintiff was not entitled to damages for the removal of his siding and appropriation of the land on which it was located, unless they found as a fact that the natural or-original surface grade of the land, on which Washington street had been located, was materially changed by cutting or filling in front of his property; that the company had a right to remove the entire artificial elevation or embankment on which his siding was laid, and thus deprive him of that means of access to his place of business without any liability to make compensation therefor. In that portion of the charge covered by the second specification of error he says: “ That siding was destroyed because it was necessarily constructed upon an embankment made by the owner of that property, leading from the Reading Railroad by an elevated track into his premises.....So far as it was an artificial embankment made in the street, I charge you that no excavation of it, although it did destroy the siding, would be a subject of damage in this case, because this was a regularly laid out public street, and, although it had not- been opened by lawful authority, no property owner along it had the right under the law to build upon it or to put any obstruction there that would interfere with the ultimate opening of the street;.....and if the general level of the street along there, as it originally existed, was not altered, but after the completion of the railroad the level was about as it existed.before the artificial bank which supported plaintiff’s siding was 'constructed, there can be no recovery of damages in this case,” etc.

This instruction is unwarranted by anything that appears in the record, and the error appears to pervade the entire charge, including the answers to defendant’s first and fourth points. The latter is a binding instruction, that unless defendant company made an excavation or embankment in the natural grade of the plotted street fronting plaintiff’s property, there can be no recovery in this suit. The other is a qualified affirmance of the first point in which the learned judge says: “The plaintiff cannot be considered a trespasser, in the ordinary sense, because he constructed the embankment in question for his business purposes in a street laid out but not regularly opened for public travel until future legal proceedings; but, he could only maintain it subject to removal whenever the public exigencies required its abatement. When the railroad company acquired the right to occupy the street, the excavation through plaintiff’s artificial embankment did not make defendant responsible for damages.”

Assuming the learned judge was correct in saying that Washington street, at the point in question, was merely “ laid out, but not to be regularly opened for public travel until future legal proceedings,” when and how did defendant company acquire the right to destroy plaintiff’s siding, and appropriate to its own use the land on which it was constructed, without liability to make just compensation therefor? The street was located on the town plot with the view of its being thereafter regularly opened by the' borough authorities for public use as a street of the borough, and not for the purpose of securing a right-of-way for defendant’s benefit. Subject to the rights of the borough authorities, to be exercised when they saw fit to do so, the property in question belonged to plaintiff. The mere location of the street, and noting it on the borough plan gave the railroad company no control over the land embraced within its lines. The siding and connection with the Philadelphia and Reading Railroad Company had been maintained and used by plaintiff and his predecessor in title for many years without objection from any one who had a right to interfere with his enjoyment thereof. The right of plaintiff, as owner in possession and enjoyment of the premises, is recognized by the company itself in its petition and appropriation bond filed in court; and, if the trial had been conducted on that theory, the errors complained of would not have occurred. Whatever may have been the right of the borough authorities, on the one hand, to open and prepare the plotted street for public use, and the right of plaintiff, on the other hand, to demand compensation for the use thus made of his property, it is very clear that defendant company has no right to locate and construct its road on the premises in question without liability to make compensation according to the terms and conditions of the bond which it tendered and obtained permission to file for his use and benefit. The assignments of error are severally sustained.

Judgment reversed, and a venire facias de novo awarded.