Spring Brook Water Supply Co. v. Pennsylvania Coal Co. , 54 Pa. Super. 380 ( 1913 )

Opinion by

Porter, J.,

The plaintiff company is duly incorporated, for the purpose of supplying water to the public, under the provisions of the Act of April 29, 1874, P. L. 73, and its supplement of May 16, 1889, P. L. 226. The defendant company is and for many years has been the owner in fee of a tract of land, the surface as well as the coal with which it was underlaid, over which certain township roads have for many years been opened and used as public highways. The plaintiff company, in the year 1889, laid its water mains under these township roads and has since then maintained them. The defendant company in its mining operations removed from its land the coal underlying these township roads, in the years 1906 and 1907, and as a consequence there was a subsidence of the surface which disturbed and injured the water pipes of the plaintiff company to an extent which has required repairs at various times, costing in the aggregate $816.13. The plaintiff brought this action of trespass, alleging the right to recover of the defendant the amount of the expenditure thus occasioned. The case was tried before the learned judge of the court below, without a jury, under the provisions of the Act of April 22, 1874, P. L. 109. The learned judge entered judgment in favor of the defendant company, and the plaintiff appeals.

The learned judge found the facts above stated and, in addition, found the following facts, to which no exception was taken in the court below, which findings are not challenged by any specification of error. The defendant company is the owner of the fee over which these township roads are located. No compensation was ever paid or secured to the defendant by the plaintiff for the privilege of laying its water pipes under the township roads. There is no evidence that these pipes were laid with the knowledge or acquiescence of the defendant company. The defendant company mined out the coal under these roads in a careful and workmanlike manner, and without willful intention to inflict injury.

The appellant, plaintiff, contends that because the statutes under which it was incorporated invested it with the right of eminent domain “to enter upon such lands and enclosures, streets, lanes, alleys, roads and highways and bridges, as may be necessary to occupy .... and to occupy, ditch and lay pipes through the same, and the same from time to time to repair .... and if any injury be done to private property the said company shall make compensation therefor;” it had the right to lay its pipes in these township roads without the consent of owners of lands over which the roads were located, and without paying or giving security for the payment of compensation to such owners for the additional servitude thus imposed. There is a marked distinction between township roads and city streets, not only with regard to the rights which accrue to the owner when his land is taken for these purposes, respectively, but also with regard to the uses to which the land thus taken may be subjected without further compensation to the owner. When land is taken for a township road, .compensation to the owner is a matter of grace and not of constitutional right: Lamoreaux v. Luzerne County, 116 Pa. 195; East Union Township v. Comrey, 100 Pa. 362; Road in Plumcreek Township, 110 Pa. 544; Wagner v. Salzburg Township, 132 Pa. 636. When the grade of such a road is changed the owner is not entitled to damages for the consequential injury to his abutting property: Jamison v. Cumberland County, 48 Pa. Superior Ct. 32, and 234 Pa. 621. With regard to such a road it was said, in Stirling’s Appeal, 111 Pa. 35: “By appropriating land for the specific purpose of a common highway, the public acquires a mere right of passage with the powers and privileges incident to such right. The fee still remains in the landowner notwithstanding the public have acquired a right to the free and uninterrupted use of the road for the purpose of passing and repassing; and he may use the land for his own purposes in any way that is not inconsistent with the public easement. He may, for example, construct underneath the surface passageways for water and other purposes, or appropriate the subjacent soil and minerals, if any, to any use he pleases, provided he does not interfere with the rights of the public. In other words, the only servitude imposed on the land is the right of the public to construct and maintain thereon a safe and convenient roadway, which shall at all times be free and open for public use as a highway. It is in view of this servitude that damages may be awarded to the owner. Laying and maintaining a pipe line, at the ordinary depth below the surface, necessarily imposes an additional burden on the land, not contemplated either by the owner or by the public authorities, when the land was appropriated for the purpose of a public road. It is a burden, moreover, which to some extent, at least, abridges the rights of the landowner in the soil traversed by the road, and hence it is a taking within the meaning of the constitutional provision. requiring just compensation to be made for property taken, injured or destroyed.” It was in that case held that a corporation vested by statute with the right of eminent domain to lay its pipes in a township road was subject to art. XVI, sec. 8, of the constitution, requiring municipal and other corporations invested with the privilege of taking private property for public use to make just compensation for property taken, injured or destroyed by the construction or enlargement of their works; which compensation shall be paid or secured before such taking, injury or destruction. When land is taken by a city or borough for purposes of a street the owner is within this constitutional provision and is entitled, if he so desires, to have the amount of his damages determined by a jury trial. The uses to which the bed of such a public street may be put are more extended and varied than the servitude imposed upon the land occupied by a township road: McDevitt v. People’s Natural Gas Co., 160 Pa. 367, and Shinzel v. Bell Telephone Co., 31 Pa. Superior Ct. 221.

This plaintiff might have acquired the right to lay and maintain its pipes in these township roads by complying with the provisions of the statutes which invested it with the right of eminent domain and securing to the defendant company compensation for the additional servitude which it thus imposed upon the land: Bly v. White Deer Mountain Water Co., 197 Pa. 80; Brown v. Electric Light Co., 208 Pa. 453. Had it done this, it might have elected to have the coal necessary to support the pipe line remain in place, or it might have waived this right of support and assumed the risk of the subsidence of the surface after the removal of all the coal, and the damages would have been ascertained upon the basis of that election: Penn Gas Coal Co. v. Versailles Fuel Gas Co., 131 Pa. 522; Davis v. Jefferson Gas Co., 147 Pa. 130. This appellant did nothing of this kind, but assumed that it had the right to impose a servitude upon the land of the defendant without making compensation therefor, it laid its pipes without the knowledge of the defendant, made no attempt to agree on the compensation to be paid for the privilege, and never tendered security for payment of compensation, when ascertained. When a corporation enters upon the lands of another in this manner, it was said, in Oliver v. Railway Co., 131 Pa. 408: “Or, they may enter without compliance with the law, or treaty with the owner, in which case they acquire no title, but are trespassers, and liable to an action of trespass or ejectment, at the election of the owner.” This plaintiff entered upon the land of the defendant company as a trespasser, it never acquired title or the right to have the coal which supported its pipe remain in place, and so far as indicated by the evidence in this case it remains a trespasser to the present day. The defendant did not have the right to injure the property of the plaintiff willfully and intentionally, but it owed it no positive duty to support its pipe.

The judgment is affirmed,