Justice v. Nesquehoning Valley Railroad Co.

• Decision Date: 06 May 1878
• Parties: Justice <I>et al. versus</I> Nesquehoning Valley Railroad Company.
• Court: Pennsylvania Supreme Court

87 Pa. 28

Justice et al. versus Nesquehoning Valley Railroad Company.

Supreme Court of Pennsylvania.

April 2, 1878.

May 6, 1878.

April 2d 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas of Carbon county: Of January Term 1878, No. 255 E. G. Platt, Samuel Dickson and J. D. Bertolette, for plaintiffs in error.—The value of the land is to be estimated at the time of its lawful occupation by the railroad: Graham v. Connersville & N. C. Junc. Railroad Co., 36 Ind. 467; United States v. Land in Monterey Co., 47 Cal. 515. Whatever is annexed to the soil, becomes part of the realty: Minshall v. Lloyd, 2 M. & W. 459; Lee v. Risdon, 7 Taunt. 191; Coombs v. Beaumont, 5 B. & Ad. 72; Hallen v. Runder, 1 C., M. & R. 266; King v. Johnson, 7 Gray 239; Voorhis v. Freeman, 2 W. & S. 116; Davis v. Moss, 2 Wright 346.

The rule is paramount to the intention of the person by whom the annexation is made. A man may thus find that he has made a gift, although without intention. Hence a structure erected on the land of another will become his property, although built with the view of sustaining and enforcing an adverse title to the land: Lee v. Risden, supra; Overton v. Williston, 7 Casey 155. This rule applies not only to houses and other structures, which are permanent in themselves, and may in some sense be regarded as principals rather than accessories, but to everything which is so far annexed to the land as to become part of the freehold. The law is clearly settled thus in Pennsylvania: Gray v. Holdship, 17 S. & R. 413; Morgan v. Arthurs, 3 Watts 140; Lemar v. Miles, 4 Ibid. 330; Overton v. Williston, supra; Oves v. Ogelsby, 7 Watts 106; Christian v. Dripps, 4 Casey 271; Pyle v. Pennock, 2 W. & S. 391; Harlan v. Harlan, 3 Harris 507; Heise v. Railroad Co., 12 P. F. Smith 68.

Charles Albright and Henry Green, for defendant in error.— The measure of damages for constructing a railroad through the property of a landowner, is the difference between the value of the land before the road was built and its value when the road was completed: Schuylkill Navigation Co. v. Farr, 4 W. & S. 362; Harvey v. Lackawanna and Bloomsburg Railroad Co., 11 Wright 428; Hornstein v. Atlantic and Great Western Railroad Co., 11 P. F. Smith 90; Penna. & N. Y. Canal and Railroad Co. v. Bunnell, 31 Id. 425. The right of the company accrued upon its original entry, whether tortious or otherwise: Lawrence's Appeal, 28 P. F. Smith 365. In this state, neither in an action of trespass, nor in a proceeding for compensation, can the owner recover the value of the improvements put upon the land: Borough of Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Railroad Co., 16 P. F. Smith 409. The right of the company is a mere easement, and is not the subject of a lien or sale under execution: Western Penna. Railroad Co. v. Johnston, 9 P. F. Smith 290. The decisions in Indiana and California are based upon provisions of law peculiar to those states.

Chief Justice AGNEW delivered the opinion of the court, May 6th 1878.

This was a proceeding to view and value land taken by the Nesquehoning Valley Railroad Company for its railroad, and to assess damages therefor. It came into the court below by appeal from the finding of viewers, and was tried before a jury.

As stated in the argument of the plaintiffs in error, there is a single question raised by all the assignments of error, to wit: whether the plaintiffs were the owners of the ties, rails and other structures placed on the land by the railroad company before the 3d of April 1874, the date of the verdict in ejectment. The facts are few, and fairly raise the question. The plaintiffs were the owners of a large tract of land lying at the entrance or "key" to the valley, and divided by the Nesquehoning creek, leaving fifty acres to the south of the stream, consisting of valley and timbered hillside. The railroad nearly bisects these fifty acres. In 1869 the railroad company endeavored to purchase the whole of this part, but owing to the large number of owners failed to do so. The company entered and built its road without objection, except it was notified to repair injuries to tenants. A bond was offered to the husband of one of the owners, who said he did not want it. The facts exhibit no outrage in the taking of the property, but the entry was clearly a trespass. No bond having been filed and approved according to law, the entry was irregular, and subjected the company to an action of ejectment, in which judgment was confessed April 3d 1874, and execution stayed until the proceeding to assess the damages should be completed.

The company being a trespasser, and the entry not in conformity to law, the question is, whether this irregular proceeding operated as a dedication in law of the property in the ties and rails to the owners of the land, so as to entitle them to include these things in the assessment of the damages under the railroad law, and recover their value as an accession to the value of the land taken by the company. A careful consideration and analysis of the case before us will show that it differs in essential respects from that of a mere tort-feasor, whose structures upon the land of another enure to the benefit of the owner of the land.

The common-law rule is undoubted, that a trespasser, who builds on another's land, dedicates his structures to the owner. The reason is obvious, for like him who sows where he cannot reap, he can obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So, if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an act of appropriation of the land under a charter. This is clearly pointed out in Heise v. Pennsylvania Railroad Co., 12 P. F. Smith 67. The very intent of an appropriation of land, is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules), which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions...