Brocket v. Ohio and Pennsylvania Railroad Co.

• Decision Date: 01 January 1853
• Citation: 14 Pa. 241
• Parties: Brocket versus The Ohio and Pennsylvania Railroad Company.
• Court: Pennsylvania Supreme Court

Page 241

14 Pa. 241

Brocket versus The Ohio and Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.

CERTIORARI to the Common Pleas of Beaver county.

Shannon, for plaintiff in error, contended, that the term land, in the act, does not include buildings or tenements; that it is a term of art, and to be construed strictly; and that, technically, it means ground; and that, under this term, the company could not, in constructing their road, remove a dwelling-house. That if a house is taken, it could not be returned, if the route of the road be changed: also, that other roads are restricted from passing through dwelling-houses: 3 Peters' Dig. 212; 1 Baldwin 215-16; U. S. Law Jour. 43-4; 6 Whar. 25; 2 Kent 299; 1 Black. 136; 2 id. 5 and 198. The trial by jury is a fundamental law, made sacred by the constitution, and cannot be legislated away; and if the legislative act impugns a constitutional principle, the act must give way and be rejected on the score of repugnance, 2 Dal. 309. Hence, the court below exceeded their jurisdiction by ordering a second appraisal, instead of submitting the case to a jury of the county, to assess the damages, as desired by the defendant below; 8 Watts 243.

Agnew, for the Company: That the term land includes not only the face of the earth, but every thing under it or over it. — That the right to have the compensation ascertained by another mode than by a jury, is not to be questioned. To deny it would overturn the whole system of road law, as well as the proceedings where property has been taken, under numerous special acts, for public use. That a distinction exists between the taking of property for public use, and the act of depriving a citizen of his rights. The former is the exercise of sovereign power in the State, subject to which the citizen holds his rights, and implies a mere exchange of one thing for another. Deprivation implies loss, and involves the idea of forfeiture, and without compensation. Hence they are the subject of distinct and independent provisions in the Declaration of Rights: Constitution, 9 art., sec. 9 and 10; also art. 7, sec. 4.

The right of eminent domain or inherent sovereign power, is plenary, and subject to no restrictions except those expressly imposed; which are, that the object shall be a public one, and that compensation shall be made. But the mode of making compensation is nowhere prescribed, and is consequently left to the discretion and justice of the legislature: Pittsburgh v. Scott, 1 Barr 314; Mon. Nav. Co. v. Coons, 6 W. & Ser. 113; Baldwin Rep. 221-2.

The opinion of the court was delivered by GIBSON, C. J.

This is a question not of power, but of intention. The constitution subjects all private property without distinction to public use; and a dwelling-house may be taken for it as legitimately as a forest or a field. Had not the Pea Patch Island in the Delaware been previously purchased by the United States, it might have been adversely taken for the site of the present fortress, and the buildings on it might have been demolished. Houses are often taken down to make way for streets; and in this city, two thoroughfares have been opened through blocks of houses to a neighboring street. In Philadelphia, the occurrence of such things is frequent. What is more to the purpose, the State railroad from that city to Columbia, passes diagonally through blocks of houses in the city of Lancaster. The single question, therefore, is whether the word land, in this joint act of incorporation, is to have its legal meaning, or, if there be a difference, its popular one.

The jurisprudence of the enacting States is based upon the common law of England, whose rules of interpretation are our rules; and it is text-book law, that terms of art in a statute or a deed are to be taken in their technical sense, because they have a definite meaning, which is supposed to have been understood by those who were, or ought to have been learned in the law. In England, every act of Parliament, as well as every conveyance, is drawn by counsel. The word land, both there and here, is a term of art, and the most comprehensive one that could be applied to the subject of a grant. Lord COKE says that it is nomen generalissimum; that it includes every thing fixed to the ground, and every thing above or below the surface of it; that it comprehends castles, houses, and other buildings; and that, not only the soil, but every...