Buffalo, New York & Philadelphia Railroad v. Harvey

Chief Justice Mercury

delivered the opinion of the court, November 3d, 1884.

These three cases were argued together. They present substantially the same questions. That is, whether the plaintiff in error holds the lands taken and occupied by it, discharged from tlie lien of the judgments obtained by the land owners as damages for the right of way. Article XVI. § 8, of the Constitution, declares “municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.”

Tlie ascertainment of the amount of damages sustained, and tlie entry of judgment therefor, under the statute, is not the payment of a just compensation.

Tlie corporation gave no bond or security for the damages before taking possession of the property. The amount of the damages is the price of the purchase of the privilege of using the land by the corporation. This sum inheres in the land. Until paid or secured, tlie owner of the land stands on tlie impregnable language of the Constitution that his private property shall not be taken. It follows that, although the lights of the corporation which took possession of tlie land may be transferred to another, yet they pass subject to the paramount constitutional right of the owner of the legal estate in the land. A judicial sale made on another lien does not divest the title which he has in and to the land. It extinguishes liens but not estates: Western Penna. R. R. Co. v. Johnston, 9 P. F. S. 290; Gilmore et ux. v. Pittsburgh, Virginia and Charleston R. R. Co., 8 Out. 275; Philadelphia, Newtown & N. Y. R. R. Co. v. Cooper, 9 Id. 239. In Fries v. Southern Penn. R. R. Co., 4 Norris 73, a bond was given and duly approved by the court. Thus the alternative security recognized by tlie Constitution as sufficient to authorize a taking had been given. In the present case no bond had been approved, no security bad been given and no compensation bad been paid.

The specifications of error are not sustained.

Judgment in each case affirmed.