DocketNumber: Appeal, No. 2
Citation Numbers: 66 Pa. Super. 470
Judges: Head, Henderson, Kephart, Porter, Qrlady, Trexler, Williams
Filed Date: 5/7/1917
Status: Precedential
Modified Date: 2/18/2022
Opinion bv
Defendant is the owner of a coal yard lying along the main line of the Pennsylvania Railroad Oo. in the Borough of ParkesTburg. The question in this case is whether he has the right to occupy with his coal bins or pockets a part of the slope or embankment of the railroad. On March 18,1859, Robert Parks the predecessor in title of both of the parties to this suit conveyed to the railroad company a lot adjoining defendant’s property, and in the deed in addition to the lot granted “the right to widen the embankment of the said Pennsylvania Railroad on the north side thereof for a distance of 495 feet, extending eastward from the above described lot to the crossing of a public road or street sufficient to give a width of fourteen feet on the top of said embankment outside the north rail of the main track of the Pennsylvania Railroad for the purpose of laying down a third track or siding.” Guthrie the present owner obtained title to his lot on March 30, 1907. His grantor was Moses Ross who obtained title on August 3, 1891. The court below directed a verdict in favor of the plaintiff.
The undisputed evidence in the case shows that the bank is now in the same condition it was thirty years ago. There was evidence of a raise of the track of about eighteen inches but the increase of the height was not sufficient to affect the position of the coal bins in relation to the slope, in fact it appears clearly by the testimony that when the coal bins were erected they were within the limits of the slope and according to defendant’s story they were about five feet away from the top of the embankment. If the company is entitled to the possession of the embankment, it is entitled to the exclusive possession at all times and for all purposes: P. & R. R. R. Co. v. Hummell, 44 Pa. 375; Pittsburgh, Ft. Wayne, Etc., Railway v. Peet, 152 Pa. 488; Kaseman v. Sunbury Boro., 197 Pa. 162; Leithold v. Philadelphia & R. Ry. Co., 47 Pa. Superior Ct. 137, and Gillespie v. Buffalo, Etc., R. R. Co., 226 Pa. 31.
Under the undisputed facts in the case we think that
Judgment affirmed.