Davis v. Titusville & Oil City Railway Co. , 114 Pa. 308 ( 1886 )

Mr. Justice Clark

delivered the opinion of the Court

In the determination of this case, we must assume that the defendant’s road was, by the Tutusville and Petroleum Center Railroad Company, permanently located in the year 1870, on the same ground upon which it has since been constructed ; and, that the grading of this part of it was done in the year 1870 and 1871. These questions of fact were distinctly submitted to the jury, and there was abundant evidence to justify the submission. The verdict, therefore, establishes these facts beyond all controversjn It is plain too, that the entry of the company, for the location and construction of the road, was without objection on part of the Caldwell Oil Company, the owner in fee of the premises. There is no evidence whatever showing, or tending to show, any objection on part of the Caldwell Oil Company. The only controversy was with the Warren & Venango Railroad Company, who it appears claimed the same location, and, to that company the Caldwell Oil Company had released their right of way. Mr. Chapin, the superintendent, said they had got their pay and all they wanted was a railroad.

On a question of location between two rival companies, that which has first made a survey and staked out a center line is entitled to a priority of right; Wilkesbarre & Philadelphia Railroad Co. v. Danville & Hazleton R. R. Co., 29 Leg. Int., 373; West End Pass. R’wy. Co. v. Phila. City Pass. R’wy. Co., 30 Leg. Int., 257; New Brighton & New Castle R. R. Cos’. Appeal, 105 Penn. St., 13. Upon this ground, after a somewhat protracted litigation, it was determimed in 1874, that the Titusville & Petroleum Co. was entitled to the location, and the Warren & Venango Co. were finally enjoined from any further interference: Titusville & Petroleum Co. v. Warren & Venango Co., 4 Leg. Gaz., 117.

Pending this litigation, the work of construction ceased, and it was not afterwards resumed for several years. In the meantime the property and franchises of the Titusville & Petroleum Company were upon execution process sold, at a public judicial sale; the Titusville and Oil City Railroad Company succeeded to their rights, and the latter completed the construction and equipment of the road.

The plaintiff, Henry R. Davis, and Mr. Chapin, who was at the time superintendent of the Caldwell Oil Co., in the year 1871, commenced to operate for oil on the ground covered by this lease; by what authority from the company their operations were conducted, is not shown ; it is conceded, however, that Davis has been personally engaged in the production of oil on these premises, ever since, and perhaps before, the year 1871; he says, that he has been so engaged since 1868. It is clear then*, that he liad actual personal knowledge of the location and grading of the defendant’s road; in 1871, when he says he and Chapin became partners, the road had not only been located, but was, in fact, wholly or partially graded. The work of construction after this time was, in consequence of the litigation, and perhaps of the pecuniary embarrassment of the company, long delayed, but there was no evidence of abandonment. There was enough, at all events, to put an ordinarily prudent man upon inquiry: it cannot be said that Davis, in taking a lease in 1876, could be regarded as a purchaser without notice. Indeed, by whatever arrangement or agreement with the Caldwell Oil Company, Davis may have conducted his operations, it is not shown that he had any written evidence of title until 14th July, 1882, and at that time the railroad was wholly completed, fully equipped, and in actual operation. It is true that the lease of 14th July, 1882, was written to take effect from the year 1876, but it is plain, that under the pre-existing parol agreement, he was from 1876 to 1882 but a tenant at will, by the express terms of the statute.

The location of the road in 1870, as well as the partial construction in 1870 and 1871, and the completion of it in 1880, was without any agreement as to damages, and without any previous legal proceedings in adjustment thereof. No bond bad been either tendered or filed, but as the entry of the company was without objection of the owner, no trespass was committed. Upon the subsequent filing of the bond in 1880, therefore, the title to the right of way vested, not through the proceeding initiated bjr the bond, but by the original occupation of the land, under the charter, for the purposes of the road. Thus in Lawrence’s Appeal, 28 P. F. S., 365, a railroad company constructed their road without agreement as to damages and without any legal proceedings; but also without objection by the owner; subsequently proceedings to assess damages were commenced, but the case was compromised, and the damages released. After the construction of the road, but before the compromise, the tract was leased for mining purposes. In the decision of that case this court said: — “ The railroad company had actually appropriated the land, and built and used its railway,,long before any title by lease of the coal mines had vested in the defendants. This is admitted in the answer. The owner of the land made no objection to this appropriation, but after a proceeding to assess the damages had been prosecuted, finally compromised and released. The title of the railroad company came not through this proceeding, but by its original entry and appropriation without objection. The release operated not by way of an original conveyance, but by way of a discharge for the damages incurred by the entry and construction of the railway. It is clear, therefore, that when the defendants obtained their lease, they took it subject to the previous easement, and right of way of the railroad company over the surface. The railroad was then in lawful existence and use. The owners made no defence to the right of the railroad company to appropriate the land, and these tenants cannot now set up a defence which they waived, if they had any.”

In the case we are now considering the road was located and partially constructed in 1870, and that was an appropriation of the land. “ Where a railroad has been located, the land has been taken and appropriated for public use; the right of the land owner, to sue for his damages, is complete, and he may recover all which may be caused by the location, and by the subsequent construction. He can have but one action; the damages cannot be severed; security for one is therefore security for all: Neal v. Pittsburgh & Connellsville Railroad Co., 2 Grant’s Cases, 137; Wadhams v. Lack. & Bloomsb’g. R. R. Co., 42 Penn. St., 303. The permanent location of a railroad is an appropriation of the ground, and vests a right to the damages assessed : (Beale v. Penn. R. R. Co., 86 Penn. St., 509,) and the owner of land at the time of the actual location is the party entitled to the damages.

In the case now under consideration, the jury has found that the road wj.s permanently located and indeed partly constructed, over thb premises in question, in the year 1870, and this, being without objection of the owner, under all the authorities was an appropriation of the land for the purposes of the road. The Caldwell Oil Company was then the owner of this land in fee, the plaintiff had no title whatever, and we cannot see how he can have anjr claim for damages. A proceeding is now pending for assessment of damages of the Caldwell Oil Company, and the whole question will be there adjudicated, as of the date of the appropriation of the land.

' This disposes of the 4th, 5th, 6th, 7th, 8th and 9th assignments of error, which involve the main and only important question in the cause.

The remaining assignments relate chiefly to the admission of evidence, and are wholly without merit. The cross examination of Charles Paiste, so far as it related to his former estimate of the value, was clearly competent, and that was the extent to which the examination was allowed to proceed. ■

The property and franchises of the Titusville & Petroleum Centre Co. having been transferred by a judicial sale to D. P. Corwin, or to John Scott, the record of their respective deeds was certainly admissible in evidence, to establish the transmission of their title in the railroad property to the newly organized company. The franchises of the company were derived through its charter, and the record of the deeds were admissible to establish their right of way over the lands, appropriated by their predecessors in title; as a right of way, may be said to be an interest in land, the deeds are within the Recording Acts.

We discover no error in this record, and the judgment is affirmed.