Reading City v. Davis , 153 Pa. 360 ( 1893 )

Opinion by

Me. Chibe Justice Steeebtt,

By regular legal proceedings, promoted by the city of Reading, part of defendant’s farm — over twelve acres — was condemned in 1890 for the purposes of a pumping station; and, as compensation therefor, the sum of nine thousand five hundred dollars was awarded and paid to him. About an acre of the land thus taken consists of a narrow strip, extending more than half its length along the Pennsylvania Schuylkill Valley Railroad, used as a lane connecting the pumping station lot proper with the highway. By the concession of the city’s representatives, the defendant retained the right to cross the lane at a point indicated on the appropriation plot about one thous- and feet northwesterly from Hartman’s land, whore he had been accustomed to cross said railroad in passing from one part of his farm to the other. On the residue of the land taken, the pumping plant, a dwelling-house and stable were erected. On same land, adjoining the railroad, there was formerly a driveway, extending from said railroad crossing about one thousand feet northwesterly to a siding on the railroad company’s land; and, on the bed of that old driveway, the city has a temporary road or lane. Sometime in 1890, defendant, claiming the right to do so, drove his manure wagons over the last mentioned road to said siding, loaded them there with manure and returned, by the same route, to his farm. These acts of defendant did not interfere with the city’s pumping operations, or its use of the pumping plant, but they were regarded as an invasion of its right of property, etc., and this action of trespass was brought to determine that question. Two distinct acts of trespass were charged: One was, cutting down plaintiff’s fence, etc. As to this, it was shown that, by the terms of said concession, defendant had a right to remove the obstruction to his crossing at that point, and thus, that item was eliminated. The other act of trespass consisted in driving and hauling manure over the city’s private lane or road, between the railroad crossing and said siding. There being no conflict of testimony as to that, the learned judge instructed the jury that, without the plaintiff’s permission, defendant had no right to use the lane; that the use he made of it was at least a technical trespass, and he accordingly directed a verdict in favor of the plaintiff for nominal damages.

The learned judge’s charge on that subject was as follows:

“ The defendant having passed into this road or lane belonging to the city, instead of crossing over it, passed along and over the property of the city of Reading for quite a considerable distance to reach a siding of the Pennsylvania Railroad at the further end or beyond the line pf the city’s property, which he had no right to do, under the view the court takes of the law of this case.”

“ There are no disputed facts; there were no substantial damages, nor does the city ask for such, for all the defendant did was to commit a technical trespass. On that ground you will have to find for the plaintiff; but your verdict will be nominal damages.”

These instructions constitute the third and fourth specifications. The first and second are the refusal of the court to charge as requested in defendant’s first and second points recited therein.

The first is, in substance, a request to charge that if the jury find defendant’s driving upon the property “ in nowise interfered with or impaired the full, free and ample enjoyment of the said property by the city of Reading for the purpose for which it was appropriated, the verdict must be for the defendant.”

The substance of the second point is, that notwithstanding the property was legally appropriated by the city, etc., “ the defendant remained and is the owner of the same, with a right to use it or any part of it, provided his use does not in any manner, .... interfere with or obstruct the use of said property for the purposes for which the city took the same.”

These points clearly indicate the difference between the defendant’s contention and the rulings of the learned trial judge. We have no doubt the latter was right in holding that under and by virtue of the condemnation proceedings the city acquired the right of exclusive possession and enjoyment of the property in question, subject only to the conceded right of crossing the lane above referred to. The character of the city’s title is similar to that acquired by railroad and other corporations invested with the power of eminent domain. It is sometimes called an easement, but that does not adequately express the nature and extent of the title thus acquired. Speaking of the title to property taken for railroad purposes, our brother Mitchell recently said: “ It is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it within the limits of railroad uses, as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly-invented interest in land the name of easement, perhaps appropriate enough to the railroad’s ordinary right of way for its tracks. It would seem to be rather a fee in the surface and so much beneath as may bo necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But whatever it may be called, it is, in substance, an interest in the land, special and exclusive in its nature, and which may be the subject of special injury: ” Pa. Schuylkill Valley Railroad Co. v. Reading Paper Mills, 1 Adv. R. 730 [149 Pa. 18].

This applies with equal, if not greater, force to land taken for the purpose of a pumping station connected with the city’s water-supply system. For such a purpose, extensive and exclusive sub-surface rights are quite as important as surface privileges, right of support, etc. Joint possession or user with the former owner of the land, or with any one else, is incompatible with the successful operation of such a plant; but, aside from all that, there is nothing whatever in this case on which to ground a claim such as is here set up by the defendant. He was fully compensated for the land taken for a public purpose; and he had no more right to enter upon the pumping station lot, without permission' from the city authorities, than any entire stranger would have had. His entry upon the land was an invasion of the city’s right of property, which rendered him liable to at least nominal damages : Wall v. Pittsburgh Harbor Co., 152 Pa. 432.

Judgment affirmed.