East Pennsylvania Railroad Co. v. Schollenberger

• Decision Date: 11 March 1867
• Citation: 54 Pa. 144
• Parties: The East Pennsylvania Railroad Company <I>versus</I> Schollenberger.
• Court: Pennsylvania Supreme Court

54 Pa. 144

The East Pennsylvania Railroad Company versus Schollenberger.

Supreme Court of Pennsylvania.

January 22, 1867.

March 11, 1867.

January 22d 1867.

Before WOODWARD, C. J., THOMPSON, READ and AGNEW, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Schuylkill county.

F. W. Hughes, for plaintiffs in error.—The grant of land for the railroad took with it all damages resulting from the construction of the road, such as fencing, &c.: Act of February 19th 1849, § 11, Purd. 839, pl. 13, Pamph. L. 84. The plaintiff's petition asks damages only for the land occupied.

He cited also Pa. Railroad Co. v. Zebe, 9 Casey 318; Purvis v. Del. and Lackawanna Railroad Co., 6 Id. 154.

J. W. Ryon and B. W. Cumming, for defendant in error.— The evidence as to a contract of release was verbal, and was, therefore, for the jury both as to its existence and meaning: Brubaker v. Okeson, 12 Casey 519. There was no evidence of the company's acceptance of the proposition when made: E. Pa. Railroad Co. v. Hiester, 4 Wright 57; Wenrich v. Heffner, 2 Id. 207. There are other damages in such cases than occupying land for the road: E. Pa. Railroad Co. v. Hottenstine, 11 Wright 28; Redfield on Railroads 153 note; Brown v. Prov., W. and B. Railway Co., 5 Gray 35; Dodge v. County Comrs., 3 Metc. 380; Barclay Railroad Co. v. Ingham, 12 Casey 194; Plank Road v. Ramage, 8 Harris 75; Lycoming Mut. Ins. Co. v. Schreffler, 8 Wright 272.

The opinion of the court was delivered, March 11th 1867, by WOODWARD, C. J.

The East Pennsylvania Railroad Company having taken 4 acres and 57 perches of land from the farm of John Schollenberger for railroad purposes, and having also occupied another portion of his land for deposit of gravel, dirt and the like, he instituted this proceeding for the recovery of damages, and on the trial in the court below the chief defence relied on by the company was a parol agreement by which, as the company allege, the plaintiff agreed to grant the company the right of way, or land for the roadway free of charge in consideration of the company's changing the route through plaintiff's land, which had been located over a spring and nearer the buildings than the one subsequently adopted, which offer the company accepted and changed their route accordingly.

The court submitted the evidence of this contract to the jury, having first explained to them the essential elements of a contract, and on a careful perusal of the testimony we do not wonder the jury failed to find an agreement to release damages. Railroad companies generally run several experimental lines, and their officers and engineers discuss with landowners the practicability, advantages and disadvantages of the respective routes. This is the substance of what was done in this case. A line having been started out that crossed Schollenberger's spring, and approached nearer than was agreeable to his buildings, the president of the company applied to him to sign a release of damages, which he did not do, but said to the president that if he would locate the road "further up," or as the corrected evidence has it, "further over," he would give the land for nothing, and the president said he would try to accommodate. This was the substance of the strongest evidence in support of the release, and...