Williamsport R. Co. v. Phila. R. Co.

Opinion,

Mr. Justice Williams :

The important question presented by this appeal is, what constitutes a valid location, on the ground, of a projected line of railroad ? It is singular that such a question should be to any extent an open one in a state remarkable as Pennsylvania is for the number and extent of its railroads. The act of location is an appropriation of private property, by virtue of the right of eminent domain with which the state has invested the railroad company, either by the act of incorporation or by virtue of general laws. The requisites of a valid location may be considered, first, with reference to the private owners upon or over whose lands the location is made; and, next, with reference to third parties and other corporations.

The successive steps contemplated by the act of 1849 and subsequent legislation, as necessary to vest a title to the roadway in the corporation, are these :

1. A preliminary entry on the lands of private owners for the purpose of exploration. This is made by engineers and surveyors, who run and mark one or more experimental lines, and who report their work, with such maps and profiles as may be necessary to present it properly to the company that employs them.

2. A selection and adoption of a line, or one of the lines so run, as and for the location of the proposed railroad. This is done by the corporation, and it requires the action in some form of the board of directors. This makes what was before experimental and open, a fixed and definite location. It fastens a servitude upon the propertjr affected thereby, and so takes from the owner and appropriates to the use of the corporation.

3. Payment to the owner for what is taken and the consequences of tbe taking, or security that it shall be made when the amount due him is legally ascertained.

The title of the owner is not divested until the last of these steps has been taken : Levering v. Railroad Co., 8 W. & S. 459; McClinton v. Railway Co., 66 Pa. 404; Dimmick v. Brodhead, 75 Pa. 464; Buffalo etc. R. Co. v. Harvey, 107 Pa. 319; Gilmore v. Railroad Co., 104 Pa. 275. As against him, the corporation can acquire only a conditional title by its act of location, which ripens into an absolute one upon making compensation.

As to third persons and rival corporations, however, the action of the company adopting a definite location is enough to give title. For this reason, in several of the United States provision is made by law for recording the action of the company and the line adopted by it, so as to give notice to the public, and to settle questions of priority of title. We have no such statute, and the action of the company must be proved by other competent evidence: Heise v. Railroad Co., 62 Pa. 72. But, when proved, it has the same effect upon all interested as though it had been recorded. It settles the date of actual appropriation, and shows the exact location of the line of the road proposed. An examination of our own cases will show that the conclusions we have reached are fairly dedueible from them. In N. Y. etc. R. Co. v. Young, 33 Pa. 175, it was held that the location of the line of its road is intrusted by the law to the company alone ; and after it has exercised the discretionary power confided to it, its action is final as to third persons, and cannot be reviewed. The same doctrine was again asserted in Cleveland etc. R. Co. v. Speer, 56 Pa. 325, and it has been adopted in many subsequent cases. The effect of a location, when made, so far as the line and the ground covered by it are concerned, was considered in Pittsb. etc. Ry. Co. v. Commonwealth, 101 Pa. 192; and it was held the act of the company in adopting a definite and permanent location for its road was an appropriation of the ground covered by it, whether such ground was within the enclosure of a private owner, or in the public highway. In other words, this is the method by which the corporation exercises the power .of eminent domain with which the state invested it at its creation, and takes what before belonged to others for its corporate use. It may acquire land by purchase, if its charter authorizes it to do so, before a location of its road; but, if it does so, it holds the land as any other purchaser would, subject to the right of any one having the right to do so to enter and appropriate it by virtue of the right of eminent domain.

That a corporation cannot exercise the power to appropriate land until it has located its line, is well settled. Thus, if a company has an option between two or more lines or routes, it must make its election by an actual adoption of one of them before it can acquire title by appropriation upon either: 1 Redf. on Railways, 240. The reason for this is, that the act of location is at the same time the act of appropriation. The space covered by the line as located is thereby seized and appropriated to the purposes of the construction and operation of the railroad by virtue of the power of eminent domain, and nothing remains to be done except to compensate the owner. After the act of location by the company, the owner or the company may proceed at once to secure an ascertainment of damages. Until such act neither can do so ,• for no right to damages vests in or accrues to the owner until there has been an appropriation of his property by the corporation: Davis v. Railway Co., 114 Pa. 308. There should be no unnecessary delay in completing the preliminary exploration and making a location, if priority is to be secured. In New Brighton etc. R. Co.’s App., 105 Pa. 13, private parties, in contemplation of securing a charter, caused a preliminary survey to be made over a route for a railroad projected by them. They afterwards secured a charter, and the corporation adopted the line of the preliminary survey as the location of its road. In the meantime, another corporation had made a preliminary survey over the same ground, and made a final location of its road. It was held that the latter company had the better title, and that the adoption by the former company of the line run before its incorporation, could not carry its title back to the date of the preliminary survey.

The application of the rule now laid down as to what constitutes a valid location, to the case before us, disposes of this appeal. The plaintiff company has the right, under its charter and subsequent legislation, to build its road from its present terminus at Hall’s to Williamsport, and connect with the Philadelphia & Erie railroad. In 1886, and again a year or more before the bill was filed in this case, the engineer of the plaintiff ran over a route from Hall’s to Williamsport, connecting with the road of the Philadelphia & Erie company near the lot described in the bill as tbe Metzger lot, and set stakes along it. It does not appear in the bill or in the evidence that this preliminary survey was ever reported to the plaintiff company, or that any action was ever taken by the company to fix the location of its road between Hall’s and the intersection with the Philadelphia & Erie in Williamsport. In the meantime, the latter company, in locating a branch of its road, had run and adopted a line crossing one corner of the Metzger lot over which the plaintiff claimed to have made a location by the act of its engineer, and was proceeding to have an assessment of the damages made in the manner provided by law, when this bill was filed and an injunction obtained in the court below restraining the defendant from proceeding further in its effort to perfect its title to the location made for its branch over the Metzger lot. The answer denied the plaintiff’s title in these words : “ The defendant denies that the said plaintiff ever made a valid and legal location of the lino of its railroad upon the lot of the said John Metzger.” The plaintiff was thus called upon to show the fact of the location of its road upon the land, or upon some part of the land, which the defendant claimed the right to occupy under its location of its branch. It did not show, or make any effort to show, the location of the line of its road. When this want of title in the plaintiff was urged upon the attention of the learned judge of the court below, he seemed to recognize its importance as a general proposition, but to think that it was rendered of no consequence in this case by the state of the pleadings. He said: “ It is urged by the defendant that there is no evidence that the directors of the plaintiff ever authorized the location of this road. It might be sufficient answer to this allegation to say that there was no such issue raised by the pleadings.” But we have seen that it was distinctly raised. The learned master found that the plaintiff’s road had been located by an engineer. He did not find that the company had ever taken any action whatever, either before or after the engineer ran over the route. He could not, from the evidence. An engineer may make explorations in advance of a location, or be may re-mark the line or adjust the grades after the adoption of a location, but an engineer alone cannot locate a railroad so as to give title to the company that employs him. He is not the company. The right of eminent domain does not reside in him.

Until the plaintiff was able to show that it had acquired title to the Metzger lot or some portion of it, by the location of its road upon it, it had no standing ground in a court of equity from which to ask an injunction in this case, and it should not have been granted. It sought to restrain the defendant from making an entry on the Metzger lot, because that lot had been already appropriated by itself to its own corporate uses. The fact on which its right to be heard rested was clearly and flatly denied by the defendant. No effort was made to show it, and without it the plaintiff was without a foundation on which his prayer for an injunction could rest.

The decree of the court below is reversed ; the injunction is dissolved, and the bill dismissed at the costs of the plaintiff, the appellee.