Dimmick v. Brodhead

• Decision Date: 23 March 1874
• Citation: 75 Pa. 464
• Parties: Dimmick <I>et al. versus</I> Brodhead.
• Court: Pennsylvania Supreme Court

75 Pa. 464

Dimmick et al. versus Brodhead.

Supreme Court of Pennsylvania.

March 16, 1874.

March 23, 1874.

March 16th 1874.

Before AGNEW, C. J., SHARSWOOD, MERCUR and GORDON, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Pike county: No. 300, to January Term 1873.

COPYRIGHT MATERIAL OMITTED

F. M. Crane (with whom were D. M. Vanauken and J. Nyce), for plaintiffs in error.—After tender of security, the company had the right to enter upon the land: Harrisburg Water Co. v. Crangle, 3 W. & S. 460; Western Penn'a R. R. v. Johnson, 9 P. F. Smith 295. The remedy is not by trespass, but damages must be assessed in the manner prescribed by Act of 1849: Cumb. Valley Railroad v. McLanahan, 9 P. F. Smith 23; McKinney v. Mon. Nav. Co., 2 Harris 65; Farnham v. Del. & Hudson Canal Co., 11 P. F. Smith 265; Fehr v. Sch. Nav. Co., 19 Id. 161.

G. G. Waller (with whom was C. W. Bull), for defendant in error.—The bond must be approved before entering on the land: Wadhams v. Lackawanna & B. R. R., 6 Wright 303; Yost's Report, 5 Harris 531. Trespass will lie in this case: Brown v. Powell, 1 Casey 229; Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Pittsburg, F. W. & C. Railway, 16 P. F. Smith 404.

The opinion of the court was delivered, March 23d 1874, by AGNEW, C. J.

It has been settled in a series of cases from Harrisburg v. Crangle, 3 W. & S. 460, to McClinton v. Pittsburg, Fort Wayne and Chicago R. R. Co., 16 P. F. Smith 404, that it is trespass in a private corporation to take land for a public use without first making compensation, or giving adequate security therefor. The constitutional provision is express that this must be done "before such property shall be taken." This amendment of 1838 meant something. The 10th section of the Bill of Rights in the Constitution of 1790, merely provided that property should not be taken or applied to public use "without just compensation being made." Under this clause it had been held that it was not necessary that the compensation should be actually ascertained and paid before appropriation, it being sufficient if an adequate remedy was provided as the means of obtaining it without unreasonable delay. But the remedy is illusory in the case of a private corporation, where it is without means, or becomes insolvent, and hence the provision in the 4th section of the seventh article of the Constitution as amended in 1838, viz.: "The legislature shall not invest any corporate body or individual with the privilege of taking private property for public use, without requiring such corporation or individual to make compensation to the owners of said property or give adequate security therefor, before such property shall be taken." The language is not shall tender, but shall give adequate security. The word "tender," in the proviso of the 10th section of the General Railroad Law of 1849, is a departure from the words of the Constitution. If the adequacy of the security be left in the...