Cumberland Valley Railroad Co. v. McLanahan

• Citation: 59 Pa. 23
• Parties: The Cumberland Valley Railroad Company <I>versus</I> McLanahan.
• Decision Date: 20 May 1868
• Court: United States State Supreme Court of Pennsylvania

59 Pa. 23

The Cumberland Valley Railroad Company versus McLanahan.

Supreme Court of Pennsylvania.

May 13, 1868.

May 20, 1868.

May 13th 1868.

Before THOMPSON, C. J., STRONG, READ, AGNEW and SHARSWOOD, JJ.

Error to the Court of Common Pleas of Franklin county: Of May Term 1868. No. 46.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

T. B. Kennedy and J. McD. Sharpe, for plaintiff in error.—The act of incorporation of April 2d 1821 gave the company the right to take the land to the extent of five rods, and provides for assessment of damages. This remedy is exclusive: 1 Redfield on Railways 336; McKinney v. Monongahela Nav. Co., 6 Harris 65; Harrisburg v. Crangle, 3 W. & S. 464. Ejectment or partition is not an appropriate remedy: McKee v. Straub, 3 Binn. 3; Marks v. Marks, 9 Watts 410; Law v. Patterson, 1 W. & S. 184; Big Mount. Imp. Co.'s Appl. 4 P. F. Smith 361. The plaintiff's acts estopped him: Adlum v. Yard, 1 Rawle 171; Ingram v. Hertz, 12 Wright 381; Campbell v. McCoy, 7 Casey 264; Anon. 2 Eq. Cas. Ab. 522; Le Fevre v. Le Fevre, 4 S. & R. 241; Rerick v. Kern, 14 Id. 267; McKellip v. McIlhenny, 4 Watts 317; Arnold v. Cornman, 14 Wright 361; Morrison v. Howell, 5 Id. 58; Huff v. McCauley, 3 P. F. Smith 206; Swartz v. Swarts, 4 Barr 353; Ebner v. Stichter, 7 Harris 19; Pickard v. Sears, 6 A. & E. 469; Wass v. Van Swearingen, 10 S. & R. 146; Buchanan v. Moore, 13 Id. 304; Epley v. Witherow, 7 Watts 165.

There was no paper-book nor oral argument for defendant in error.

The opinion of the court was delivered, May 20th 1868, by SHARSWOOD, J.

The 1st assignment of error relates to the form of action. It is a perfectly well-settled principle that when the legislature has provided a specific remedy for the recovery of damages for injuries sustained by the construction of a work of internal improvement by a corporation, a party injured cannot have recourse to a common-law action: McKinney v. The Monongahela Nav. Co., 2 Harris 65. The defendants below were incorporated by the Act of April 2d 1831, Pamph L. 373, entitled "An act to incorporate the Cumberland Valley Railroad Company." It gives to the company no powers "except such as may be necessary or incident to the making and using of the said railroad," and specially declares that "the said company shall at no time hold any land for any other purpose than the construction of the said railroad, or for depots, toll-houses or other necessary works." By the 12th section they have power to survey, lay down, ascertain, mark and fix such route as they shall deem expedient for said railroad, the said road not to be more than five rods wide. By the 14th section "it shall and may be lawful for the company hereby incorporated to make, erect and establish a double railroad on the route laid out as aforesaid; and they are also hereby empowered to erect, make and establish all works, edifices and devices to such railroad as may by the said company be deemed expedient for the purpose of carrying into effect the objects of their incorporation; and also to contract or agree with the owner or owners for the purchase of any lands or tenements which may be necessary for the purpose of constructing and using the said railroad." And finally, by the 15th section, they have power "to enter in and upon and occupy for the purpose of making said railroad" any land upon which the same may be located, and if the owner refuses to permit such entry and occupation, and the parties cannot agree, they shall appoint appraisers, and if they cannot agree upon the appraisers, the Court of Common Pleas shall make the appointment. From this recital of the provisions of the charter on this subject it would seem sufficiently clear that while the company may have had power to purchase and hold land for the general purpose of "erecting, making and establishing all works, edifices and devices to such railroad as may by the said company be deemed expedient for the purpose of carrying into effect the object of their incorporation," yet that their authority to enter upon and occupy land without the consent of the owner is confined to such as is required "for the purpose of making such railroad." With this end in view they can enter and occupy to the extent of five rods in width, and no more; for that purpose and no other. Whatever buildings and erections were necessary to the railroad as such — without which it would not be a complete and perfect railroad — fit for use — are included by implication. Such would be depots for the reception and landing of passengers and freights, wood and water stations, toll-houses, watch-houses and others of similar character. But these words cannot be extended by any latitude of construction to comprehend a warehouse — a place for the storing and safe-keeping of goods — any more than it can be to the offices and residences of the officers and employees of the corporation. This court has often had occasion to consider the question of what is to be regarded as forming a necessary part of a railroad — generally in cases in which claims have been made by the companies to hold their property exempt from county or municipal taxation. The cases are collected in the opinion of Judge Pearson, in The Lackawanna Iron Co. v. Luzerne County, 6 Wright 428, and the result of them stated to be, that the line of road and ground occupied thereby, and the buildings immediately necessary for its enjoyment, not merely useful or convenient, are exempt; whilst all other property, though erected for the convenience of the company and to promote its trade and business, is subject to taxation. The opinion of the judge below in that case was adopted by the Supreme Court. The principle of it has been reaffirmed in subsequent cases not yet reported, and may now be considered as firmly established.

If this be so, then the taking of the plaintiff's land for the erection of this warehouse was not within the power conferred on the company by the 15th section of their charter. They could only acquire title or a right to use it for that purpose by agreement with the owners. The refusal of the court below to affirm the 1st point presented by the defendants below was right. It is perhaps unnecessary to go further, as nothing more is contained in the specification of error than that refusal; but as the cause is to be remitted for another trial, it will be proper to notice and dispose of another ground of objection made to the remedy by action of ejectment adopted in this case. It is contended that as the defendants below without question had a license from Judge Chambers, who was one of the tenants in common of the lot of ground in question, which gave them a right to occupy and use the land, ejectment cannot be maintained by the plaintiff below, the other tenant in common, for his undivided...