Oliver v. Pittsb. V. & C. Ry. Co. , 131 Pa. 408 ( 1890 )

Opinion,

Me. Justice Williams :

Corporations clothed with the right of eminent domain enter upon the land of private owners in one of the following ways : They enter upon giving security for the payment of the damages to be done by their entry, when ascertained, and thereby acquire title, without regard to the consent of the owner, by virtue of the statute. They enter in pursuance of a bargain with or leave given by the owner, and their title rests on their bargain or contract, and not on the statute. Or, they may enter without compliance with the law, or treaty with the owner, in which ease they acquire no title, but are trespassers, and liable to an action of trespass or ejectment, at the election of the owner. The owner may be unable to agree with the corporation as to the injury sustained by him, and the statutory proceeding may have to be proceeded with until a final adjudication can be had, but the corporation may enter meantime, and proceed with the construction of their improvements, and the owner cannot interfere. If, however, he treats with the corporation, and they enter under permission from him, he stands on the same ground when contracting with a corporation as when contracting with an individual. He is bound by his agreements in the same manner, and estopped by the same equitable considerations, in the one case as in the other. If he consents to the entry by the corporation, and sees the expenditure of large sums of money made upon the ground in the construction of a line of railroad, part of an extended line over which the corporation is engaged in carrying passengers and freight as a common carrier, he ought not to be allowed to treat their entry as a trespass.

He does not, however, lose his right to compensation, and can proceed under the statute to have his damages assessed, as well after as before the construction of the road. Whether he should be permitted to proceed also by action of ejectment might, if now presented for the first time, require careful consideration. But we must regard this question as already set-died in favor of the right to maintain such action by a series of cases, among which may be cited McClinton v. Railway Co., 66 Pa. 404; Wheeling etc. R. Co. v. Warrell, 122 Pa. 613; Allegheny V. R. Co. v. Colwell, decided at the October Term 1888; Phila. etc. R. Co. v. Cooper, 105 Pa. 239. In all the cases, however, in which the entry was made with the knowledge and consent of the owner, the action has been treated as equitable in its character. The corporation, having been permitted to enter in advance of the ascertainment of damages, did not thereby lose its right to proceed in' the usual manner to secure their adjustment through the courts, and the action of ejectment has been sustained as a means of quickening the action of the corporation in this regard. While the owner has not parted with his title by his own conveyance, or had it divested by proceedings under the statute, he has parted with the possession under circumstances, and permitted expenditures upon and use of the property of such a character, as to make it inequitable for him to resume the possession, or to defeat the right of the corporation to proceed under the statute, and add to its lawful possession a lawful title, by virtue of compliance with its provisions.

In Railroad Co. v. Colwell, supra, it was said: “ But as Colwell was at least passively derelict in knowingly permitting the railroad company to occupy and put its improvements on his land, we agree that it would be inequitable to allow the judgment to work a forfeiture of those improvements; ” and execution was accordingly stayed upon the judgment, to enable the railroad company to proceed under the statute, and have the damages assessed. There was in that case, and there is in this, no contract for the sale of the right of way capable of enforcement by means of a conditional verdict in ejectment; but the equities growing out of the entry by permission, the expenditure of money, and the construction through the premises of a continuous line of railroad, so that resumption of possession by the landowner would interrupt the traffic of the entire line, required us to send him to the tribunal which the law provides for the ascertainment of the damages to which he was entitled. The effect of the permissive entry is thus made the same as if a formal contract had been entered into, by which the landowner had agreed to put the corporation into possession, and accept as compensation such sum as might be awarded to him by proceedings under the general law. This protects the corporation in the expenditures made in consequence of its lawful entry on the land, while it secures to the owner the full measure of compensation to which he is entitled, under the law, for the entry and appropriation by the corporation.

In the case now before us, the railroad company entered under a formal release of the right of way by the widow, who was in actual possession and the holder of an estate for life in the land, and with the knowledge and acquiescence of the guardian of the plaintiff’s intestate. Its entry was in no sense a trespass, therefore, but was rightful, subject only to an ascertainment of the damages done to the remainder-man. These should be assessed as of the date of the entry. It is urged that the damages, when assessed, do not belong to the plaintiffs below, and that their action must fail for that reason, and the damages be awarded to the administrator of the intestate under whom they claim as heirs at law. But the damages were not assessed in the lifetime of the decedent, nor were any steps taken to that end. Nothing was done, therefore, that could divest his title, and substitute its value in money therefor. That title descended, consequently, to his heirs at law, who now stand in his stead, and are clothed with his rights. Davis v. Railway Co., 114 Pa. 308, and kindred cases, are therefore not applicable.

Judgment affirmed, but stay of execution thereon ordered for ninety days, to enable the railroad company to proceed under the statute, and procure the condemnation of the land and the assessment of damages as of the date of the original entry; the costs to be paid by the railroad company, when taxed.