Sholl v. Stump , 24 Pa. Super. 48 ( 1903 )

Opinion by

Rice, P. J.,

The facts of this case are very clearly' and concisely stated in the opinion filed by the learned judge below. The question is whether the Union Canal Company by its appropriation of the iand in controversy in 1827 and the proceedings incident thereto, acquired an estate in perpetuity which it could dispose of in fee, irrespective of the fact of the "abandonment of the canal as a canal, or an estate determinable upon the happening of that event. We think the learned judge was right in holding that the question here presented must depend upon the construction to be given to section 13 of the Act of April 2, 1811, P. L. 226. This conclusion seems irresistible when it is noticed that the act provided a complete scheme for the. acquisition of land by the Union Canal Company for its canal, and expressly repealed “ all acts and supplements heretofore passed in favor of the Schuylkill and Susquehanna Navigation and of the Delaware and Schuylkill Navigation.” The provision securing to the new company incorporated by the act the right to “ have, hold and enjoy all estates, grants, rights, interests and privileges heretofore held and enjoyed by them” (the former companies above mentioned) “ under their former respective titles,” is not inconsistent with the: foregoing conclusion. This provision preserved vested property rights, but we are unable to conclude that it was intended to have any further effect, at least so far as the present question is concerned.

Counsel for appellant frankly concede That if the question is to be determined by the act of 1811 and that alone, an appropriation'under its provisions gave to the canal company the same estate as a railway company would acquire under the general laws providing for the taking of private property for public use, and that upon the abandonment of the canal, the fee would revert to the owner. The correctness of this concession, at least as applied to a case where it does not affirmatively appear that the company claimed to appropriate the fee and the landowner acquiesced in the assessment of damages upon that basis, is clearly and satisfactorily shown in the opinion filed by the learned judge below. He has also pointed out the distinctions between this case and the case of Haldeman v. The Pennsylvania Central Railroad Co., 50 Pa. 425, and other cases based upon a construction of the act of 1826, and has shown by the decision in Spear v. Allison, 20 Pa. 200, that the principles upon which it was held in those cases that the commonwealth acquired a fee, do not control in a case governed by statutory or charter provisions similar to those applying here. We fully concur in his conclusions, and can add nothing profitably to the discussion.

Judgment affirmed.