Brown v. Corey & Peterson

• Decision Date: 06 May 1863
• Citation: 43 Pa. 495
• Parties: Brown <I>versus</I> Corey & Peterson.
• Court: Pennsylvania Supreme Court

43 Pa. 495

Brown versus Corey & Peterson.

Supreme Court of Pennsylvania.

May 6, 1863.

ERROR to the District Court of Allegheny county.

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Burgwin and Woods, for plaintiff in error.

Penney and Acheson, for defendant.

The opinion of the court was delivered, May 6th 1863, by WOODWARD, J.

The defendants in error having become owners of certain coal lands lying in Versailles township, Allegheny county, within three miles of the Monongahela navigation, applied to the District Court, under the Lateral Railroad Law, for a right of way, underground, through a stratum of coal, owned by the plaintiff in error, William H. Brown. A view was had of the premises, which resulted in an assessment of damages to Brown of $2500, from which he appealed on the 13th of March 1860. On the trial of the cause in court, in April 1862, he asked leave to withdraw his appeal, and prayed the court to confirm the report of viewers. Both requests were denied him, and the result was a verdict in his favour for only $239.50.

The refusal of the court to suffer a withdrawal of the appeal is now assigned for error. We think there was no error in this.

The Act of Assembly gives either party a right of appeal within twenty days after the report of viewers is filed, but if one party appeals the other need not. The cause is tried de novo on the appeal, the appellant possessing no advantage over the appellee by reason of having entered the appeal. If the successful party may appeal, and, after the twenty days have elapsed, discontinue his appeal, he may thereby deprive his adversary of the retrial to which he is entitled. If such a practice were tolerated it would lead to oppression and fraud. It has long been the policy of our statutes to forbid the withdrawal of appeals from awards of arbitrators without the consent in writing of the opposite party, and in Monongahela Navigation Company v. Blair, 8 Harris 78, the same rule was applied to an assessment of damages in a corporation case. It is equally applicable to cases under the Lateral Railroad Law.

Brown owns only the coal-seams through which Corey & Peterson sought to push their railroad, the title to the surface being in David Shaw; and it is insisted that there is nothing in the Acts of Assembly relating to lateral railroads, which authorizes a proceeding against the owner of a stratum of coal as contradistinguished from the proprietor of the land.

By an Act of 16th April 1838, P. L. 637, the Quarter Sessions were empowered to lay out private roads, "under the surface of any land to coal-mines," and by the 2d section of the Act of 28th March 1840, Purd. 848, incorporated companies and individuals were authorized to construct railroads with one or more tracks "under the surface over any intervening lands, not exceeding six miles in length" — the proceedings in such case to be according to the Act of 1832, relative to lateral railroads. The word "over" in the Act of 1840, is probably a misprint for "of." The surface-owner, Shaw, is not made a party to this proceeding, and is not objecting to the road in question. How can Brown deny that he is an owner of "land?" He holds a conveyance duly executed and recorded for "fifty acres of merchantable black stone coal," with rights of way above ground and under ground, through the lands of his grantor, and with privileges of drainage and ventilation, and he holds it all to himself, his heirs and assigns for ever. In Caldwell v. Fulton, 7 Casey 475, the nature of a mine interest severed from the ownership of the surface was very fully considered, and it was treated as a corporeal hereditament. Indeed it was said in terms that coal and minerals in place are land. There can be no question, therefore, that what Brown holds is within the very terms of the Act of 1840, and being a coal-bank, it is peculiarly within the spirit and intent of the act. For it was the purpose of all our legislation touching lateral railroads to bring coal and other minerals into market, and to this end every such road was designed to be a public highway, open to every transporter who would pay the legal tolls, as well as to the party whose capital constructed the road. Brown's coal needs a railroad for its outlet. There is far less reason for his objecting to the applicability of the Acts of Assembly to his mineral property, than there would be if he were a farmer on the surface, and the proposition were to run the road through his fields.

Another objection that he urges is founded in the covenants of the deed, by which Moses Corey conveyed to him the stratum of coal under the fifty acres in question. He claims that the petitioners having purchased their landing and part of their coal from Corey, subsequently to his (Brown's) purchase, were bound by Corey's covenants, as running with the land. These covenants are the usual ones of seisin and warranty, and we do not see how they can estop the petitioners from proceeding under the Lateral Railroad Law. The argument seems to assume that the private property of Brown is to be taken for the private use of the petitioners — a thing which the legislature could not authorize to be done. If the Lateral Railroad Law had not been, long ago, rescued from this reproach, it had been condemned, long ago, as unconstitutional. It was founded in the experience of a great public want, and was passed for public purposes. Was not the development of our mineral resources a public object? Was it not a great public interest to augment the tonnage of canals and railroads, which had cost the state many millions to construct? The man whose minerals lay within three miles of a state canal but could get them into it only by crossing the intervening land of an unneighbourly owner, had been taxed as well as his forward neighbour to build that canal — was it not reasonable and just to give him not a private, but a public way, he paying all damages he should occasion? Nobody will doubt the state might enter and build a railroad on his land — it is equally clear that the state might delegate her right of eminent domain to a corporation or an individual. But then the entry is under the state and in pursuance of public law. No covenants or private contracts between citizens can possibly be...