Cox v. Pennsylvania Co.

• Decision Date: 04 January 1919
• Docket Number: 1
• Citation: 263 Pa. 132,106 A. 70
• Parties: Cox v. Pennsylvania Co., Appellant
• Court: Pennsylvania Supreme Court

106 A. 70

Cox v. Pennsylvania Co., Appellant

263 Pa. 132

No. 1

Supreme Court of Pennsylvania

January 4, 1919

Argued October 8, 1918

Appeal, No. 1, Oct. T., 1918, by defendant, from judgment of C.P. Lawrence Co., Dec. T., 1912, No. 53, on verdict for plaintiffs in case of William H. Cox et al. v. Pennsylvania Company, operating the Pittsburgh, Youngstown and Ashtabula Railway. Affirmed.

Appeal from report of viewers. Before EMERY, P.J.

The opinion of the Supreme Court states the facts.

Defendant presented, among others, the following points:

3. That the will of Ephraim Phillips worked a conversion of his real estate.

Answer. Refused. (1)

4. That plaintiffs have not shown title in themselves to the land appropriated in this case and they cannot recover.

Answer. Refused. (2)

8. That the said plotting, recording, selling and conveying of lots to other parties, severed said lots so laid out from the other parts of said eighty-acre farm.

Answer. That point as stated is refused, we say to you that the lots sold by Ephraim Phillips and other parties are the only lands in the farm which have been severed, physically separated from the balance of the farm. (3)

13. That when the jury had fixed the amount of damages and compared it with plaintiffs' demand for damages if the jury are fairly of the opinion, and come to a fair and honest conclusion that the difference between the damages they have fixed and the claim made by the plaintiffs for damages is so great that they would say that the demand of the plaintiffs was an extortionate and inordinate demand, so that the railroad company was justified in contesting it, the jury should not allow any damages or interest for delay in payment.

Answer. That point as stated, we refuse, but say to you, gentlemen that it is for you to determine whether there were any extortionate or inordinate or unreasonable demands made by the plaintiffs at the time of the appropriation of their land. With that explanation we affirm that point. (4)

14. The jury should not allow any damages for injury to any lots in the Willow Grove plot not cut by the land appropriation for they are separate parcels and plaintiffs have given no proof of damages except by acre.

Answer. This point is affirmed, but we say to you that you are not to consider the value of any lots plotted which seem to have been cut by one of these appropriations. That you are not to consider land as belonging to those lots individually but that you are to take it into consideration in connection with the general acreage of the affected land, as we have explained it to you. In other words, all lands of plaintiffs east of Beaver street. (5)

The court charged in part as follows:

[The mere laying out of the land into lots does not necessarily so separate it from the balance of the land that it may not be treated as a parcel upon which damages are to be estimated and determined especially as in this case. The plotted land was used for farm purposes, you should treat the plotted land as acreage.] (7)

[And we say to you, gentlemen of the jury, that the title of the plaintiffs to this land extended to the middle thread of the stream. Title in this is traced back to the Commonwealth, so there is not much or any question about title.

[In your deliberation you need not spend any special time on the question of title to this property, for as we have stated and submit it to you, the title to the property to the land in question is in plaintiffs.] (8)

Verdict and judgment for plaintiff for $13,446. Defendant appealed.

Errors assigned, among others, were (1, 5, 7, 8) above instructions quoting them.

The judgment is affirmed.

Oscar L. Jackson and Charles R. Davis, for appellant. -- There was a conversion: Marshall's Est., 138 Pa. 260; Downers' Est., 245 Pa. 580.

What are boundaries is law for the court but where they are is a question for the jury: Stuven v. Kalchreuter, 8 W.N.C. 44; Miles Land Co. v. Hudson Coal Co., 246 Pa. 11; Wharton v. Garvin, 34 Pa. 340; Wood v Appal, 63 Pa. 210; Kelly v. Graham, 9 Watts 116; Breneiser v. Davis, 134 Pa. 1; Thompson v. Kauffelt, 110 Pa. 209.

There can be no real question, but that the farm of Ephraim Phillips was subdivided by the Willow Grove plot: O'Donnell v. Pittsburgh, 234 Pa. 401; Fereday v. Mankedick, 172 Pa. 535; O'Donnell v. Porter Co., 238 Pa. 495.

The owner made extortionate demands: Rea v. Pittsburgh & Connellsville R.R. Co., 229 Pa. 106; Mengell's Exrs. v. Mohnsville Water Co., 224 Pa. 128-129; Neeley v. Western Allegheny R.R. Co., 219 Pa. 349; Philadelphia Ball Club v. Philadelphia, 192 Pa. 632.

C. H. Aken, with him James A. Chambers, for appellee. -- There was no conversion: Battenfeld v. Kline, 228 Pa. 91; Marr's Est., 240 Pa. 38; Chamberlain's Est., 257 Pa. 113.

Riparian rights in the Beaver river were incident to the ownership of the title to this land. Such rights run with the land: Standard Plate Glass Co. v. Butler Water Co., 5 Pa. Superior Ct. 563.

There was no severance: Scott v. Donora Southern R.R. Co., 222 Pa. 634; Potts v. R.R. Co., 119 Pa. 278; Baker v. Penna. R.R. Co., 236 Pa. 479; Phillips v. St. Clair Incline Plane Co., 166 Pa. 21; White v. Fifth Ave., Etc., Bridge Co., 189 Pa. 500; Quigley v. Penna. S.V.R.R., 121 Pa. 35; Marine Coal Co. v. Pittsburgh, McKeesport, Etc., R.R. Co., 246 Pa. 478.

There was delay in payment: Rea v. Pittsburgh, Etc., R.R. Co., 229 Pa. 106; Wayne v. Penna. R.R. Co., 231 Pa. 512; Hoffman v. Philadelphia, 250 Pa. 1.

Before STEWART, MOSCHZISKER, FRAZER, SIMPSON and FOX, JJ.

OPINION

MR. JUSTICE FRAZER:

Plaintiffs sued to recover damages for land appropriated by defendant for the purpose of widening its roadway. The principal controversy relates to the measure of damages, as to which the evidence is widely at variance and, in view of the testimony, the verdict is not excessive and must be sustained, unless based on improper evidence.

The land taken consisted of two triangular pieces, one on each side of defendant's tracks and a part of a tract known for many years as "The Phillips Farm," lying on the west side of the Beaver river and traversed by defendant's railroad, which runs approximately parallel with the river. Between the railroad and the river is a part of the farm, varying in width, containing about fourteen and one-half acres, and extending to low-water mark. This portion was connected by a grade-crossing with the main property lying on the west side of the railroad and upon which the farm buildings are located. The land had been used for farming purposes for many years; a part, however, had been laid out by the owner in building lots, a number of which were sold, while the remaining portion continued to be used for farming purposes, without reference to lines of the plotted lots. Numerous dwellings and other buildings have been erected by purchasers of the lots; the streets, however, have not been actually opened or accepted by the public authorities. The original right-of-way of the railroad, sixty-six feet in width, was obtained by conveyance from an earlier owner of the property. Appellant claims the...