Delaware, &C., Railroad Co. v. Burson

• Decision Date: 11 May 1869
• Parties: The Delaware, Lackawanna and Western Railroad Company <I>versus</I> Burson.
• Court: Pennsylvania Supreme Court

Page 369

61 Pa. 369

The Delaware, Lackawanna and Western Railroad Company versus Burson.

Supreme Court of Pennsylvania.

March 16, 1869.

May 11, 1869.

March 16th 1869.

Before THOMPSON, C. J., READ, AGNEW and WILLIAMS, JJ. SHARSWOOD, J., at Nisi Prius

Error to the District Court of Carbon county: No. 326, to January Term 1869.

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W. Davis and H. Green (with whom was M. M. Dimmick), for plaintiffs in error, on the question of the Statute of Limitations, 2d, 3d and 4th errors, referred to the 38th section of the Act of 1832, and section 14 of Act of 1849, supra; Foster v. The Cumberland Valley Railroad, 11 Harris 372. The general Statute of Limitations March 27th 1713, § 1, 1 Sm. L. 76, Purd. 655, pl. 16; 1 Redfield on Railways 183; Act of April 17th 1866, § 2, Pamph. L. 106, Purd. 1442, pl. 2. The husband died February 19th 1855, and there was then a perfect cause of action in his widow Deborah Burson: Boynton v. The Petersboro' & S. Railroad, 4 Cushing 467; Charlestown B. Railroad v. Middlesex, 7 Metc. 78; Boston & P. Railroad v. Midland Railroad, 1 Gray 360; Drake v. Hudson River Railroad, 7 Barb. 552. When the location is made the right of action is complete: Wadhams v. Lackawanna & B. Railroad, 6 Wright 310; Barton v. Dickens, 12 Wright 523; Campbell v. Boggs, Id. 524; Act of April 9th 1860, § 3, Pamph. L. 289, Purd. 840, pl. 16. 1st, 5th, 13th and 14th errors — the regularity of the proceedings in the appointment of viewers, &c. — they referred to the Acts of Assembly cited above, relating to the several railroads. A subsequent affirmative statute repeals a former one on the same subject-matter: Johnston's Est., 9 Casey 511; Gwinner v. Lehigh & Del. W. G. Railroad, 5 P. F. Smith 126; Dash v. Van Kleeck, 7 Johns. 497; Com'th v. Cromly, 1 Ash. 179; Dexter L. P. R. v. Allen, 16 Barb. 15; Livingston v. Harris, 11 Wendell 329; Bartlet v. King, 12 Mass. 545; Dwarris on Stat. 673-6. 15th and 16th errors — measure of damages: Thoburn's Case, 7 S. & R. 411; Harvey v. Lackawanna & B. Railroad 11 Wright 434; Watson v. Pittsburg & Connellsville Railroad Co., 1 Wright 481; East Penna. Railroad Co. v. Hottenstine, 11 Id. 30; Hornstein v. Atlantic & Great Western Railroad Co., 1 P. F. Smith 90. 7th error — as to the fence: Railroad v. Skinner, 7 Harris 298. 8th error — as to interest: Eckert v. Wilson, 12 S. & R. 393; Gilpin v. Consequa, 1 Pet. C. C. R. 85; Willing v. Consequa, Id. 179, Sedgwick on Dam., 377; McIlvaine v. Wilkins, 12 N. H. 475. 12th, 17th and 18th errors — as to Mrs. Burson's release and the acquiescence of herself and husband: McKellip v. McIlhenny, 4 Watts 317; Rerick v. Kern, 14 S. & R. 267; Le Fevre v. Le Fevre, 4 Id. 241; Towers v. Hagner, 3 Whart. 48; Act of April 11th 1848, § 6, Pamph. L. 536, Purd. 699, pl. 11; Bear v. Bear, 9 Casey 528; Penna. Co. v. Foster, 11 Id. 136; Fethplace v. Gorges, 1 Ves. Jr. 46, 2 McQueen on Husband and Wife 294; Wagstaff v. Smith, 9 Ves. 520, Bell on Husband and Wife 494; Dallam v. Wampole, 1 Peters C. C. R. 116; Sharpless v. W. Chester, 1 Grant 257; Glass v. Warwick, 4 Wright 140; Couch v. Sutton, 1 Grant 114; Fulton v. Moore, 1 Casey 468. 14th and 15th errors — as to defects in the report of viewers: Penna. Railroad v. Porter, 5 Casey 165; O'Hara v. Penna. Railroad, 1 Id. 445; Zack v. Penna. Railroad, Id. 394.

S. S. Dreher and W. Darlington, for defendants in error, referred to the same Acts of Assembly. On appeal, all the previous proceedings go for nothing: Lentz v. Stroh, 6 S. & R. 34; Thompson v. White, 4 Id. 140; Le Barron v. Harriott, 2 Penna. R. 154; Sullivan v. Weaver, 9 Barr 223; Waage v. Weiser, 5 Whart. 307; Lange v. Stouffer, 4 Harris 253; Royer v. Myers, 3 Id. 89. As to the Statute of Limitations: The act of incorporation fixes no limitation. Limitation of suits for penalties does not apply to land damages: Foster v. Cumberland Val. Railroad, supra. This case was by a divided court, and stands alone. It was the duty of the company to have damages assessed, and they cannot take advantage of their own wrong: Railroad v. Gesner, 8 Harris 240; Wadhams v. Railroad, 6 Wright 310; Union Canal Co. v. Woodside, 1 Jones 180. The proceeding was commenced within six years of the completion of the work.

The opinion of the court was delivered, May 11th 1869, by THOMPSON, C. J.

Following the order of the argument of the counsel for the plaintiff in error, we will first notice the 2d, 3d and 4th assignments of error. They relate to the plea of the Statute of Limitations, interposed to prevent the plaintiffs below from recovering or having an assessment of damages done their intestate's property by the location and construction of the defendants' railroad through and over it.

Without stating the points made in the court below, to raise the question, and with the simple remark that the counsel themselves seem to have difficulty in assigning the limitations to any statute, we will notice this ground of defence.

They asked the court, in their 4th point, to charge that if these proceedings were under the General Railroad Act of 1849, the limitation of two years applicable to penalties incurred and to be sued for under that Act would bar proceedings to assess damages for taking the plaintiffs' property.

There were two reasons why an affirmation of this point would have been error: —

First, the proceedings were not under the Act of 1849. That act gives no appeal, and this was a trial of an appeal. Second: Damages are assessed to compensate the party whose property is taken, not to punish the party authorized by law to take it. If the amount assessed as damages were to be regarded as a penalty, the parties engaged in the taking, and bound to pay, would, as a logical consequence, be liable to imprisonment for delay of payment a moment after failure to satisfy the necessary legal demand. There is no case rightly understood which gives sanction to such an idea. The remark in Foster v. The Cumberland Valley Railroad Co., 11 Harris 371, if it be supposed to intimate that damages by way of compensation are in the nature of a penalty, it was not the question in the case, and is not supported by authority or reason. Indeed, it appears in a mere supposititious form, and not the expression of an opinion. These remarks are as applicable to the clause limiting suits for penalties under the Act of the 7th April 1832, incorporating the Liggett's Gap Railroad Company. In that act, as well as in the Act of 1849, there are things prohibited to which penalties are annexed, but it is mere fancy to claim that the assessment of damages is among them.

But it was confidently and earnestly insisted that the Act of 27th March 1713, familiarly known as the Limitation Act, was a bar to a claim for compensation for damages done by the Railroad Company in taking private property for the use of their road. The words of that statute seem to me to be the best answer to the argument. They are "all actions of trespass quare clausum fregit, all actions of detinue, trover and replevin, for taking away goods and cattle; all actions upon account, upon the case, &c., * * * * * shall be commenced and sued within the time and limitation hereafter expressed and not after; that is to say, the said actions upon the case other than for slander, and the said actions for account, and the said action for trespass, debt, detinue and replevin for goods or cattle, and the said actions of trespass quare clausum fregit, within six years next after the cause of such action or suit, and not after," &c.

I think it is not susceptible of doubt that the legislature meant only to limit suits and actions known to common-law proceedings or forms of action. The case we are considering is a statutory proceeding exclusively, although common-law forms may be used in the process of the pleadings on appeal. There is no original writ or narr., and if on the trial the defendant puts in a defence in the shape of a plea, it is for the convenience of the trial; it does not change the proceedings into a common-law action. In Foster v. The Cumberland Valley Railroad Co., the Statute of Limitations was extended to a case of assessment of damages, under an act of the 2d April 1831, to incorporate the Cumberland Valley Railroad Company. This point of the case was not sustained by authority, but was rested on the ground, that as the land taken was taken without compensation first made, it was a trespass, and the proceeding was essentially an action of trespass. There may have been peculiarities about the case, and we do not say but that it was well decided, but the principle has not been followed in this state as a rule in any other cases of assessment of damages for taking property. The defendant has no right to complain of delay as a reason for invoking the statute; the company might and ought to have proceeded and had the damages assessed and paid them, if it did not intend that the plaintiff's intestate might take her time to test the damage, inconvenience or otherwise, that the road would be to her property before proceeding. The defendant can meet these questions at one time as well as another; and the reason for the application of the rule of the statute in such a case is very much less strong as in most, if not every case of trespass. We do not, therefore, think the court erred in refusing to affirm the defendant's ninth point on general principles. Again, the point might well have been refused, because it assumed facts which the jury only could properly pass on; namely, whether more than six years had elapsed before the commencement of the proceedings after the completion of the road. The plaintiff's intestate had a right to wait, before proceeding, until the completion of the road, even if the statute applied. Certainly the proof very clearly showed that she did commence within six years after...