Pennsylvania Railroad v. Jones , 50 Pa. 417 ( 1865 )

The opinion of the court was delivered, by

Agnew, J.

There is a radical error in supposing there was a road or right of way in this case originated in the reservation. It was an old-established road long before the mortgage was executed under which the sale vested title in Griffith Jones. It had been a county road, and after the route of the public road was changed, continued to be used by the owner of the property as a log-road from the mouth of the creek to the old saw-mill. The right of way was therefore not created by the agreement of the 27th December 1847, between John O. McAllister, the agent of the company, and-Jacob Keyser, executor of the deceased owner; the' reservation; in this agreement being a recognition only of the existing way. This distinguishes this case from that of King v. McCully, 2 Wright 76, deciding that a right of way reserved in a subsequent deed was destroyed by a sale under a prior mortgage. The error is in supposing there was any right of way, technically speaking; an established road over a man’s own farm is not a right of way. It is true he uses it as a way, and has a right to do so, but it is by virtue of his ownership of the land itself, and not of any independent right to the way. The power of an owner to impart such qualities upon the subject of his ownership, as suit his convenience, proceeds from the highest right of property, to wit, from his dominion over the land itself. Hence, where he has given permanence, and an open manifest existence to the quality or fact stamped by him upon his land, it continues unaffected by'liens-or sales, public or private. A lien or sale under it will 'extinguish subsequent titles, but does not change the characteristics of the subject of sale. It is not every temporary convenience the owner-may place upon his property which is so treated, but those visible and permanent features which give it absolute character.

It is the settled doctrine of this state, that a permanent road established by the owner over his property, necessary for its convenient use, will not be destroyed by his sale, or his encumbrance. These principles have been so fully discussed by our Brother Thompson, in the case of Philips v. Philips, 12 Wright 178 ; and by Lewis, C. J., in Kieffer v. Imhoff, 2 Casey 438, it is unnecessary to add more, except a reference also to Kirkham v. Sharp, 1 Whart. 323, Cope v. Grant, 7 Barr 488, and Seibert v. Levan, 8 Id. 383.

It follows that the Pennsylvania Railroad Company, whether they took title under the deed or not, held subject to the road, except the part conveyed to them. According to these cases, the road being an, open, notorious, and visible way across the property, the owner in selling a part did not destroy his right of pro-perty by it, from one to another part of this property ; and as a way, it was protected against the power of the company to obstruct it permanently by the provisions of the thirteenth section of their charter, even had the entry been under the authority to enter under the right of eminent domain in the state. Upon these principles, when Griffith Jones became the purchaser under the mortgage, the road remained, and he became entitled to its continued use. It follows, also, that the tearing down of the old saw-mill, for the purpose of building a new one to be supplied from the log-yard, was no abandonment of the right of way, nor a change in its use. On the contrary, the right not depending on the reservation, the building of the new mill, evidenced the design of the owner to retain the use of the customary road to the adjacent log-yard ; and the right of the use being an incident of the ownership of the property itself, the right to damages was not restricted to the use of the road as a new way to the old mill. Had the right of way depended on the reservation merely, doubtless its use could not reach to a different purpose, or exceed the extent pointed out in the reservation.

This disposes of all the errors which touch the merits of the case and leaves not a single technical question. It is alleged that the Railroad Company having entered under their deed, and not under the power contained in their charter, the sale under the mortgage divested their title ; since the plaintiff below is seised of the land itself upon which the road is built, and not a mere way across it, and, therefore, ease is not the proper remedy. It is said, the company stand responsible for its entry and appropriation of the land to whomsoever may be entitled to claim damages.

But it does not appear that Griffith Jones, the plaintiff below, has ever questioned the title of the company to use the roadway, while they are in actual possession and enjoyment of it, and have recently added a second track. By the form of the action and in his declaration Jones alleges but a right of way, and thus indirectly recognises the title of the company to the locus in quo. It is they who now ignore it, yet continue in actual possession, taking the benefit of the use'.

They have an undoubted right of entry under their charter,'’ which would have given title against both mortgagee and mortgagor, having the damages in lieu of, as compensation to the mortgagee, had he intervened to demand the application to his encumbrance. But having a right of entry, having actually entered and built their road, and continuing in the unmolested enjoyment of it, and the purchaser under the mortgage recognising their possession, it is asking us to go too far to decide at their own instance, that they are mere trespassers, and that the remedy should be trespass or ejectment: for under our view of this road, the action would not be -founded in contract, under the reservation in the agreement. We think that the defendants continuing the use and enjoyment of the road are estopped from repudiating their title, for the mere technical purpose of turning the plaintiff out of court upon his form of action. It will be in time when Jones moves against the company to contest their title, and to oust them from the use of the road, to decide whether they are mere trespassers, or can under all the circumstances continue in possession, notwithstanding the lien of the mortgage was antecedent to their deed and entry.

Judgment affirmed.