Haldeman v. Pennsylvania Railroad Co.
| Decision Date | 29 June 1865 |
| Citation | 50 Pa. 425 |
| Parties | Haldeman <I>versus</I> The Pennsylvania Central Railroad. |
| Court | Pennsylvania Supreme Court |
In most cases in which the Commonwealth has appropriated the land of a private owner for a public highway, it has not attempted to take the fee simple. The Road Laws generally contemplate no more than fastening a servitude upon the land and devoting it to public use as a highway. A right of passage is all that is taken, while the fee is left undisturbed in the private owner. Hence when the public right of passage is given up, the servitude of the land is gone and the owner holds it disencumbered of the public right, and as if the Commonwealth had never interfered with his enjoyment of it. It is not to be overlooked, however, that this is because the Commonwealth made at first but a partial appropriation. If in any way the title of the owner has been acquired by the public, if the Commonwealth has purchased the fee, or taken it through the exercise of its right of eminent domain, and if then the land has been devoted to public use as a highway, a cessation of that use can revest nothing in the former owner. His rights are gone and he cannot resume possession. It is then a fundamental inquiry in this case, what was the extent of the appropriation made when the Commonwealth took the land in controversy between these parties. Was it a mere right of passage that was taken, or was it the ownership of the land in perpetuity? It is very evident from the Act of Assembly of February 26th 1826, entitled "An act to provide for the commencement of a canal, to be constructed at the expense of the state and to be styled `The Pennsylvania Canal,'" that the purpose of the legislature was to secure the acquisition, in absolute ownership, of the lands through which the canal was intended to pass, so far as those lands were designed to be actually and permanently occupied by the canal. Two kinds of occupation were plainly in view; one permanent and continuing, and the other temporary or of limited duration, such as might be required for the deposit of materials or accommodation of the workmen while the canal was in process of construction. Hence the viewers were required to value the land and all damages the owner or owners should sustain by reason of cutting the canal through such land and the partial or temporary appropriation, use, or occupation of such land, and they were also required to describe and ascertain the bounds of the land by them valued, and the quality and duration of the estate in the same, required by the agents of the Commonwealth for the use of the state. The act then proceeded to declare, that on payment of the valuation made by the viewers, the state should be seised of such lands as of an absolute estate in perpetuity, or with such less quantity and duration of interest or estate in the same, or subject to such partial or temporary appropriation, use, or occupation, as shall be required and described as aforesaid, as if conveyed by the owner or owners. Thus a clear distinction was made between land required for temporary use and that taken for the canal itself. Of the former it was in substance declared, that the seisin of the Commonwealth should continue only so long as the temporary use was required. Of the latter, the seisin was declared to be in perpetuity, as if conveyed by the owner or owners. Nowhere in the act was any authority given to the viewers, when the assessment became necessary, in consequence of the disagreement of the parties, to assess damages for a right of passage alone, such as is appropriated under our road laws generally or under laws incorporating canal and railroad companies. Necessarily, therefore, the appropriation of that which was required for permanent use was an appropriation in fee.
The Act of 1826 was followed by that of April 9th 1827, which made some changes in the mode of ascertaining damages. It authorized the owner of land considering himself aggrieved by the passage of a canal through his land, to present his petition to the Court of Quarter Sessions of the proper county within one year after the completion of the work, and it directed the appointment of five viewers to view the premises and report such damage, if any, as they or any three of them should think the owner had sustained by reason of said canal, taking into consideration the advantages of said canal to the petitioner. This act also empowered the board of canal commissioners to make an amicable adjustment of any damages whatever, sustained by the owner or owners of any land through which any canal or railroad, to be made at the expense of the state, passes or is intended to pass; a provision not found in so large terms in the Act of 1826. There is no direct reference in this second act to the estate or quantity of interest which the Commonwealth should acquire, in the lands appropriated without purchase and for which the compensation to be made was to be settled by viewers, and, if it is not to be construed in connection with the first act, there is nothing in it that gives any different effect to the appropriation from that which generally results from laws providing for taking private property for public use as a highway. Standing alone the act does not seem to contemplate an acquisition of the fee by the Commonwealth. But the Acts of 1826 and 1827 are in pari materia. They both relate to assessments or valuations of lands taken for the Pennsylvania Canal. The latter act does not repeal the former, except so far as it makes inconsistent provisions for compensating owners of lands taken. It follows that both acts must be construed together, as parts of one...
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