Commonwealth v. Koontz

• Decision Date: 07 May 1917
• Docket Number: 20
• Citation: 258 Pa. 64,101 A. 863
• Parties: Commonwealth v. Koontz et al., Appellants
• Court: Pennsylvania Supreme Court

101 A. 863

258 Pa. 64

Commonwealth v. Koontz et al., Appellants

No. 20

Supreme Court of Pennsylvania

May 7, 1917

Argued March 6, 1917

Appeal, No. 20, Jan. T., 1917, by defendants, from judgment of C.P. Franklin Co., April T., 1916, No. 183, on directed verdict for plaintiff, in case of Commonwealth of Pennsylvania v. Mary C. Koontz and Levi L. Horst. Affirmed.

Ejectment for land in Franklin County. Before GILLAN, P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff by direction of the court and judgment thereon. Defendants appealed.

Error assigned was in directing a verdict for plaintiff.

The assignments of error are overruled and the judgment is affirmed.

J. A Strite, with him Edwin D. Strite, for appellants. -- The agreement of the turnpike company and the State highway commissioner and the consequent freeing of the road from tolls was an abandonment of the turnpike road by the turnpike company within the meaning of the parties to the deed.

The use of the term "purchase" in the Act of April 11 1913, Sec. 9, P.L. 59, relating to the taking over of the turnpike by the Commonwealth does not make the act of the turnpike company any less an abandonment of its turnpike road so far as the rights of the defendant are concerned: Ammant v. Pres., Mgrs. & Co. of the New Alexandria & Pittsburgh Turnpike Road, 13 S. & R. 210; Susquehanna Canal Co. v. Bonham, 9 W. & S. 27.

William H. Keller, First Deputy Attorney General, with him Francis Shunk Brown, Attorney General, for appellee. -- A sale and conveyance by deed to the Commonwealth is not an abandonment of the turnpike: St. Peter's Church v. Bragaw, 10 L.R.A. (N.S.) 633; Stephens v. Mansfield, 11 Cal. 363; Richardson v. McNulty et al., 24 Cal. 339; McLeran v. Benton et al., 43 Cal. 467; Middle Creek Ditch Co. v. Henry et al., 39 Pac. Repr. 1054; Hogan v. Gaskill et al., 6 A. Repr. 879; Watts et al. v. Spencer et al., 94 Pac. Repr. 39; Canton Co. of Balto. v. Balto. & Ohio R.R. Co., 57 A. Repr. 637; Beebe's Heirs v. Little Rock et al., 56 S.W. Repr. 791; Worsham v. Texas, 120 S.W. Repr. 439; Scott v. Moore, 81 Amer. St. Rep. 749; Norman v. Corbley, 79 Pac. Repr. 1059; Derry v. Ross et al., 5 Colo. 295; Smith v. Cushing et al., 41 Cal. 97; Judson & Place v. Malloy et al., 40 Cal. 299; Miller v. Cresson, 5 W. & S. 284; Philadelphia v. Riddle, 25 Pa. 259; McMillin v. Titus, 222 Pa. 500; Patterson v. Williams, 52 Pa.Super. 299; Russell v. Stratton, 201 Pa. 277; Emery v. Regester, 17 Pa.Super. 482; Aye et al. v. Philadelphia Co., 193 Pa. 451; Cotter v. Philadelphia, 194 Pa. 496; Marshall v. Forest Oil Co., 198 Pa. 83; Forster v. McDivit, 5 W. & S. 359.

Before MESTREZAT, POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

In 1863, the Harrisburg, Carlisle and Chambersburg Turnpike Road Company bought the land here at issue, comprising eighty perches, of Alex. K. McClure, as a tollgate house property. It was a part of Mr. McClure's farm and situate in Franklin County on the turnpike between Chambersburg and Shippensburg. The deed therefor contains a provision as follows, viz: "That if the said turnpike company shall at any time remove said gate house from the said premises then the said Alex. K. McClure, his heirs or assigns, shall have the first right to purchase said house and lot at an appraisal to be fixed by the appraisers, two to be chosen by the parties hereto and the two so chosen to select a third, and in case the said turnpike road shall be abandoned by said turnpike company then the house and lot hereby conveyed shall revert to said Alex. K. McClure, his heirs and assigns."

In 1867, Mr. McClure sold the balance of the farm to Levi Horst, the deed for which contains the following reservation, viz:

"The house known as the Toll-gate house with eighty perches of ground having been conveyed by the said party of the first part to the Chambersburg and Carlisle Turnpike Road Company to use and enjoy the same so long as said property shall be used as a Toll-gate by said Company, this conveyance to said Horst is made subject to the rights of said Turnpike Company and when said Toll-gate property shall be abandoned as a Toll-gate by said Company it shall pass to said party of the second part, his heirs and assigns in fee."

By sundry conveyances, etc., Horst's title became vested in the defendants. The half acre was used as a toll house property until 1915, when by amicable agreement the turnpike company sold and conveyed the said turnpike road to the Commonwealth of Pennsylvania for twenty-five thousand dollars, which sale embraced all of said company's property used in connection with the said road or appurtenant thereto, including bridges, toll houses and other structures and all road materials and equipment on hand, etc., and especially including the half acre here at issue, with the buildings and appurtenances, together with all rights and easements embraced in the McClure deed therefor. The State highway commissioner acted for the Commonwealth in the acquisition of the turnpike road, which at once became a State highway free from tolls. The purchase of the road did not include the franchise of the turnpike company.

In our opinion the trial court was right in holding that the sale to the Commonwealth was not an abandonment of the land in question, whether it be considered as real or personal property.

"The characteristic element of abandonment is the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker. In this respect it is distinguishable from all other modes by which ownership may be divested. Thus it is in the matter of the cessation of ownership that abandonment is distinguished from a transfer by sale or gift, for if the title be continued in another by any...