Lance's Appeal

• Decision Date: 13 May 1867
• Parties: Lance's Appeal.
• Court: Pennsylvania Supreme Court

55 Pa. 16

Lance's Appeal.

Supreme Court of Pennsylvania.

June 29, 1866.

May 13, 1867.

June 29th 1866, at Wilkesbarre.

Before WOODWARD, C. J., THOMPSON, STRONG, READ and AGNEW, JJ.

Appeal from the decree of the Court of Common Pleas of Luzerne county. In Equity.

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L. Hakes and O. Collins, for appellant.

H. W. Palmer, for appellee, cited Dwarris on Stat. 750; Mayor of Allegheny v. Ohio and Pa. Railroad, 2 Casey 355; Packer v. Sunbury and Erie Railroad, 7 Harris 211; Reay v. Huntington, 4 East 285; Scales v. Pickering, 4 Bing. 452. Acts of May 5th, 1832, § 12, Pamph. L. 505; March 28th 1840 § 1, Pamph. L. 196, Purd. 848, pl. 62, 64; Mifflin v. Railroad, 4 Harris 194; Ridge Turnpike v. Stoever, 6 W. & S. 378; Lewis v. Jones, 1 Barr 336; Kemp v. London and Brighton Railroad, 1 Eng. Railroad Cases 374; Blackman v. Glamorganshire Canal Co., 1 Mylne and Craig 162; Queen v. East. Co. Railroad, 1 Eng. Railroad Cases 382; River Dun Nav. Co. v. London and B. Railroad, Id. 101; Head v. Providence Ins. Co., 2 Cranch 127; Dartmouth Coll. v. Woodward, 4 Wheat. 636; Beatty v. Knowler, 4 Pet. 152; Gossler v. Georgetown, 6 Wheat. 597; Sanderson v. Haverstick, 8 Barr 294; Feree v. Meily, 3 Yeates 153; Redfield on Railways 69, pl. 7-8; Skilton v. Webster, Brightly's R. 203; Bank of Ky. v. Schuylkill Bank, 1 Pars. R. 220; Bank of Va. v. Adams, Id. 534, 1 Troub. & H. 63, 64; Kerlin v. West, 1 Green's Ch. R. 449; Webb v. Manchester and L. Railroad, 1 Eng. Railroad Cases 576.

After argument the Supreme Court referred the cause and all the proofs and exhibits to C. L. Lamberton, Esq., as master in chancery, to find and report: —

1. Whether the lateral railroad was disused in 1856 or has been disused and suffered to remain out of repair since then for two years or more.

2. When the coal-schute was erected and by whose order and for whose use; whether it was necessary for shipping coal by the Lackawanna and Bloomsburg Railroad; whether it was erected on the 20 feet appropriated to the lateral road; whether it was wholly or partly within the 60 feet appropriated to the Lackawanna and Bloomsburg Railroad; how much, if any, extended beyond the 60 feet; whether the alignment and gradients of the lateral road from the mine to the schute are in substantial conformity to the decree establishing the road and are reasonably necessary and convenient for transporting and shipping coal.

3. How many square feet or perches of the complainant's land outside of the 20 feet appropriated to the lateral road and of the 60 feet appropriated to the Lackawanna and Bloomsburg Railroad, have been covered by coal, coal-dirt, &c., by the defendant, specifying the land and furnishing a draft of it; if the deposits have been successive with considerable intervals intervening, to fix the time of the several deposits and indicate upon the draft the height in feet and inches of the deposit; and, if necessary, to take further proofs.

The master reported: —

1. That the lateral railroad was altered by the lessees of Lance in 1856 in its gradients, from the line of Harvey's land to where it crosses the Lackawanna and Bloomsburg Railroad, the alignment being substantially the same; that the lateral road was changed from a descending to an ascending grade, the difference where the old wagon-road was crossed being about 18 feet; that formerly the wagon-road crossed over the lateral road and now passed under it; that the lateral road was altered to accommodate the passage of the Lackawanna and Bloomsburg Railroad, and with some disadvantage to the operations upon it, and as altered, continued to be used for transporting coal from the tunnel to the pool at the Nanticoke dam until in January 1860, when the schute-house was burned, and that portion of the lateral road not occupied by the new schute-house, had been disused and suffered to remain out of repair for two years or more.

2. That in 1860 the building known as the coal-schute was erected by Lance for shipping coal on the Lackawanna and Bloomsburg Railroad, in constructing which the alignment of the lateral road, from a point named to the schute-house, was altered and the part so vacated has been disused, &c., for two years and more; that the new schute-house is partially within the 20 feet of the lateral road and the remainder within the 60 feet of the Lackawanna and Bloomsburg Railroad; that the gradients are an entire reversal of those of the lateral road as originally constructed, and that these changes at the time of the location of the Lackawanna and Bloomsburg Railroad and the burning of the old schute-house were reasonably necessary and convenient for transporting and shipping coal over the lateral road; that a new schute-house and breaker have been erected over the wagon-road and railroad about 65 feet from the tunnel; that the rails and many of the ties have been removed from the lateral railroad from that point to the schute-house; and that both it and the schute-house of 1860 are disused and out of repair.

3. That Lance obtained from the president of the Lackawanna road authority to grade additional tracks on the land appropriated for its right of way by depositing his refuse coal along the main track of the railroad at about 20 feet from it, and in so doing Lance embanked the coal-dirt, &c., against a fence erected by the company in the place of one of Harvey's, torn down by them; that the embankment caused the fence to give way, and it was removed, from time to time, to a distance of from 10 to 20 feet from where it stood, and this was part of the original fence diverged to unite with the schute-house; that at this point and below, the railroad is built along the base of the hill below the public road, which being above the other is supported by a wall; from this wall, including its width at the point where the fence originally was, is 59 feet to the fence on the lower side of the railroad; that at some points the fence is within the 60 feet and some places beyond it, pressed out by the coal-dirt embankment, some of which, but unimportant in quantity, has gone beyond the 60 feet; that the embankment made by Lance under the authority of the company is within the 60 feet; that 1165 cubic yards of the embankment, since its construction, have been carried over Harvey's land below, which is attributable to insufficient culverts, causing floods to pass over the embankment; that a wall supporting the lateral road has given way, precipitating coal-debris into a public road, and a portion of this debris is deposited beyond the limits of the road; that there was a deposit of coal-debris on the site of the burned schute-house made by Lance before 1861, extending beyond the 20 feet of the lateral road and the 60 feet of the Lackawanna road; that after the erection of the new schute-house in 1860 a large mass of coal-debris was thrown from the end next the river, forming a pile which extended beyond the limits of the lateral road and the 60 feet of the Lackawanna Railroad; that the deposit, made during the existence of the schute-house which was burned, outside the limits of the 20 feet of the lateral road and of the 60 feet of the Lackawanna Railroad and along the schute-house for 55 feet is 25 feet in width, of an average height of 8 feet and contained 335 cubic yards; on the other side of the schute, beyond the above limits, the pile extended 45 feet of the width of 37 feet and of an average height of 8 feet, and contained 493 yards, altogether 828 yards, and having a superficial area of 2790 feet; that the pile outside the new schute-house, put there since 1860,...