Davis v. Titusville & Oil City Railway Co.

• Decision Date: 01 November 1886
• Docket Number: 192
• Citation: 114 Pa. 308,6 A. 736
• Parties: Davis v. Titusville and Oil City Railway Co
• Court: Pennsylvania Supreme Court

6 A. 736

114 Pa. 308

Davis v. Titusville and Oil City Railway Co

No. 192

Supreme Court of Pennsylvania

November 1, 1886

October 5, 1886

ERROR to the Court of Common Pleas of Venango county: of October Term 1885, No. 192.

This was a proceeding instituted by Henry R. Davis against the Titusville and Oil City Railway Co., under the Act of 1849 to recover damages for land taken by said company for railroad purposes. Upon petition viewers were appointed who made report. From this report Davis appealed. On motion, the court directed that the issue be tried by a jury in the form of an action of trespass, Davis being the plaintiff and the railway company the defendant. Plea not guilty.

The facts as they appeared on the trial before TAYLOR, P.J sufficiently appear from the charge and the opinion of the Supreme Court.

The charge of the court was as follows:

The plaintiff, Mr. Davis, claims to recover damages which he alleges he has sustained by reason of the defendant railway company appropriating the right of way over his lease, on the Caldwell farm on Oil Creek, near Pioneer. The railway company has taken 920 feet in length and 30 feet in width across this lease. By so doing, the plaintiff alleges that the company prevent him from using the said right of way for oil purposes, has destroyed some of his roads, rendered others useless, made it necessary for him to build new roads; and further, in making their grade and completing their road across his lease they broke his pipe-line, spilt his oil and injured some of his property, and also have hindered him in the proper development of his oil lease. He says he had a lease of this property many years ago, which he lost, but finally procured a lease from the oil company to cover the time he had operated on their farm, which was from 1875; and further says that he and Mr. Chapin, the superintendent of the farm, had operated there before that time.

If the defendant railway company took this land and obstructed the lease when he was there operating on it, he is entitled to recover such damages as he has sustained, not only the direct damages to the property, but such secondary damages as resulted from the occupancy of the land by the railway company. [But, gentlemen, in order for the plaintiff to recover damages he must have some legal rights. It may be that he has sustained injuries by reason of this railroad being built there, and have no legal remedy; courts and juries apply legal remedies where legal rights exist.

The defendant company alleges that this, their road, was permanently located where it now is across this strip of land on the plaintiff's lease, and grading done thereon in 1870 or 1871.] (Seventh assignment of error.)

You will remember the evidence for yourselves. [Positive testimony is entitle to a great deal more weight than negative testimony. A credible witness who comes on the stand and swears he saw and knows a thing to be so, is entitled to a great deal more weight than a dozen witnesses who come and say merely that they did not see it.] (Eighth assignment of error.)

[If you believe the evidence of Mr. Douglass and the man who was superintendent of the construction of this road and actually did the work there, and the testimony of Mr. Stephenson, the engineer, who testifies as to the location of this road, and find that this railroad was located where it now is in 1870 and the grading done in 1870 and 1871 over this lease of the plaintiff's, and the plaintiff did not take his lease of the land until 1875 or 1876, then Mr. Davis cannot recover in this case, for he took his lease subject to the defendant company's rights there.] (Ninth assignment of error.)

Unless you find that in the construction of this road some unnecessary damage was done to the property of Mr. Davis, for which damage he could recover here.

On the other hand if you find there was not permanent location of the railroad across the plaintiff's lease until after he got his lease, then he would be entitled to recover damages as we before stated to you.

The plaintiff presented inter alia the following point:

If the jury believe the testimony of the plaintiff's witnesses there was no final and permanent location of a railroad or track by the Titusville & Petroleum Centre Railroad Company and plaintiff is not barred from claiming such damages as he may have sustained from the defendant.

Answered in the negative. (Fourth assignment of error.)

The defendant presented the following points:

1. The Titusville & Petroleum Centre Railroad Company was a corporation duly organized on the 30th day of September 1870, with the power to build and operate a railroad between the city of Titusville and Petroleum Centre; and by judicial sales, and by virtue of a due and legal organization thereunder, all the rights, franchises and property of said railroad company became vested in the Titusville & Oil City Railway Company, the defendant in this suit, including its route and rights of way.

Affirmed. (Fifth assignment of error.)

2. The uncontradicted and unimpeached evidence in this case shows that the Titusville and Petroleum Centre Railroad Company located its route through the farm of the Caldwell Oil Company, and entered upon the same for the purpose of construction in the winter of 1870-71, before the plaintiff had any lease of the land in question, and that the present track of the defendant through the land covered by said lease is laid upon said located route. If the jury believe this evidence the plaintiff cannot recover in this suit.

Affirmed if you further find that no unnecessary damage was done in the constructing of the road. (Sixth assingment of error.)

On the trial the defendant offered in evidence without producing or proving the original, record of a deed conveying the rights and franchises, including the right of way of the Titusville & Petroleum Centre R.R. Co., to the defendant.

Objected to because such an instrument cannot be proved by the mere production of the record. It is not within the recording Act.

Objection overruled, deed admitted in evidence, exception noted, and bill sealed. (Second assignment of error.)

Verdict for the defendant and judgment thereon, whereupon the plaintiff took this writ, assigning for error those portions of the charge included within brackets, the answer of the court to the plaintiff's and to the defendant's points, and the admission in evidence of the deed above referred to.

We discover no error in this record, and the judgment is affirmed.

M. J. Heywang for plaintiff in error. -- The record of the deed should not have been admitted in evidence: Fitter v. Shotwell, 7 W. & S., 14; Susquehanna Canal Co. v. Bonham, 9 W. & S., 27.

There may be a survey and location of a route for a railway without such an appropriation as precludes the owner from using his land; and such is the case when the railway corporation has made no compensation or given security to condemn the land, and after the first feeble and sporadic efforts indicating a desire to build a railroad, and before laying a track, has, to all appearances, abandoned the whole project for years: Gilmore v. Pittsburg, Virginia and Charleston Railway Company, 31 Pittsburg Legal Journal, 334.

We think the evidence fairly shows that the plaintiff owned this lease at the time the first railway company made surveys. That his rights amounted at least to an irrevocable license for oil purposes, and gave him a right to claim and recover damages: Funk v. Haldeman, 53 Pa. St. R., 229 (244;) Huff v. McCauley, 53 Pa. St. R., 206 (208;) Rerick v. Kern, 14 S. & R., 267; Getz v. Phila. and R.R. Co., 15 W.N.C., 357.

But if we grant for the sake of the argument that plaintiff's rights only date from 1875 or 1876, he is still entitled to recover. The Caldwell Oil Company then had the right to possession of the land. Had a track been laid it could have maintained an action of ejectment, no compensation having been made or security given: Gilmore v. Pittsburg and V. & C.R. Co., 31 Pitts. Leg. J., supra; Levering v. Philadelphia G. and N.R. Co., 8 W. & S., 459; McClinton v. Railroad Co., 16 P.F.S. 404.

A tenant can maintain an independent proceeding to recover damages for injuries to his leasehold and property: Turnpike Road v. Bosri, 10 Harris, 29; North Penna. R.R. v. Davis, 2 Casey, 238; Dyer v. Wightman, 16 P.F.S. 427.

Hancock (Glenn with him) for defendant in error. -- The location of a railroad is an appropriation of the ground and vests a right to the damages assessed in the owners thereof, which no subsequent alteration of the route can destroy: Beale v. Penna. R.R. Co., 86 Penn. St., 509.

In this case the road was located in the winter of 1870, and there is not the slightest evidence that the plaintiff had any right in the land until 1876,...