Penna. & N. Y. Canal, &c., Co. v. Billings

• Decision Date: 03 May 1880
• Parties: Pennsylvania and New York Canal and Railroad Company <I>versus</I> Billings.
• Court: Pennsylvania Supreme Court

94 Pa. 40

Pennsylvania and New York Canal and Railroad Company versus Billings.

Supreme Court of Pennsylvania.

March 16, 1880.

May 3, 1880.

March 16th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas of Wyoming county; Of January Term 1880, No. 20½.

COPYRIGHT MATERIAL OMITTED

Felix Ansart, for plaintiff in error.—There can be no doubt of the right of the Commonwealth, under the Acts of 25th of February 1826, Pamph. L. 55, and 9th of April 1827, Pamph. L. 192, to take the land for the purpose of constructing the basin, nor of the owner's right to have the damages which he sustained by reason thereof assessed under the provisions of the latter act. But the right of the Commonwealth to the land so taken was an absolute estate in perpetuity: Robinson v. West Penn. Railroad Co., 22 P. F. Smith 320; Craig v. Mayor of Allegheny, 3 Id. 477; Haldeman v. Railroad Co., 14 Wright 425. Where the canal is completed through a piece of land, the precise quantity which shall be wanted in perpetuity for the canal will be most distinctly and permanently marked out by the banks of the canal itself; Commonwealth v. McCallister, 2 Watts 199.

The basin could not have been constructed for Osterhout's use without written permission from the directors, managers or commissioners. See Act 10th of April 1826, sect. 9, Pamph. L. 301.

The plaintiff's first point was a correct statement of the law: Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Penna. Railroad Co., 14 Wright 425; Craig v. Mayor, &c., of Allegheny, 3 P. F. Smith 477; Robinson v. West Penna. Railroad Co., 22 Id. 316; McKeen v. Delaware Division Canal Co., 13 Wright 424; Wyoming Coal & Trans. Co. v. Price, 31 P. F. Smith 156.

The effect of the charge was to make the determination of the matter in controversy to depend upon one question, viz., Does the jury believe that the part of the North Branch Canal which is on the land in controversy was built at the instance of Osterhout and Jackson for their benefit?

It is true the charge left it to the jury to decide whether it was taken by the state for permanent use, but no instruction was given the jury that would have enabled them to decide correctly whether it was taken for permanent use or not.

F. C. & R. P. Ross and Wm. E. Piatt & Sons, for defendant in error.—The Act of April 10th 1826, Pamph. L. 301, has no application here. We were not claiming the company's land, nor did we claim anything in derogation of the company's vested rights, but an arrangement made before the company had any rights there whatever, and in fact denying that the company had any or ever had any rights. The mere filing a claim to cover the whole land would not give the company the land unless originally appropriated. It might be some evidence to rebut our theory and for plaintiff to claim that it was all taken by the company, but it was a question of fact for the jury. It was also evidence in connection with the deeds. In construing a deed, the court must look into the circumstances under which it was made, as evidencing the intention of the parties: Cox v. Friedly, 9 Casey 124; Miner's Appeal, 11 P. F. Smith 283. Every agreement is to be construed with reference to the circumstances under which the parties contract: Callen v. Hilty, 2 Harris 286; Williamson v. McClure, 1 Wright 402; Bank v. Fordyce, 9 Barr 275; Chalfant v. Williams, 11 Casey 212.

Mercur got no title to the damages. They were in the nature of a compensation for injury in the nature of a trespass, and could not pass by a conveyance of the land: Schuylkill Nav. Co. v. Decker, 2 Watts 344, and McFadden v. Johnson, 22 P. F. Smith 335.

Mr. Justice STERRETT delivered the opinion of the court, May 3d 1880.

The vital question in this case was, whether the Commonwealth, in the construction of the North Branch Canal, appropriated the land in controversy for permanent use and occupation as a part of that improvement. Under the testimony this was a question of fact for the jury. If they had found that the land was so appropriated, the verdict should have been in favor of the plaintiff company, which succeeded to the title of the Commonwealth in the canal. There never was any question as to the right of the state to take and appropriate lands required in the construction and operation of such public improvements, but there is a recognised distinction between that which was required for permanent use and occupation and that needed for temporary purposes only. As to the latter, the title of the owner was not divested, and his enjoyment was only temporarily interrupted; but as to the former, it has been settled by a current of decisions that the title acquired by the Commonwealth to lands so taken and appropriated to permanent use and occupation, was an absolute estate in perpetuity: Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Railroad Co., 14 Wright 425; Craig v. Mayor of Allegheny, 3 P. F. Smith 477; Robinson v. The West Pennsylvania Railroad Co., 22 Id. 316, and Wyoming Coal & Transportation Co. v. Price, 31 Id. 156.

The contention on the part of the plaintiff company is, that by virtue of a taking and appropriation of the land for permanent use and occupation as part of the North Branch Canal, the Commonwealth acquired a title in perpetuity. If such was the case it is conceded that the plaintiff company is now invested with the same title. Hence the vital...