McClinton v. Railway Co.

• Decision Date: 03 January 1871
• Citation: McClinton v. Railway Co., 66 Pa. 404 (Pa. 1871)
• Court: Pennsylvania Supreme Court
• Parties: McClinton <I>versus</I> The Pittsburg, Fort Wayne and Chicago Railway Co.

66 Pa. 404

McClintonversusThe Pittsburg, Fort Wayne and Chicago Railway Co.

Supreme Court of Pennsylvania.

November 7, 1870.

January 3, 1871.

November 7th 1870.

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

Writs of error to the Court of Common Pleas of Allegheny county: No. 151 and 175, to October and November Term 1869J. F. White, for plaintiff in error, cited De Haven v. Bartholomew, 7 P. F. Smith 129;Thoburnv. Schuyl. Nav. Co., 7 S. & R. 411;McKinney v. Monon, Nav. Co., 2 Harris 64;Union Can. Co. v. Woodside, 1 Jones 176;Western Railroad v. Johnston, 9 P. F. Smith 290;The Del. and Lack. Railroad v. Burson, 11 Id. 369;Harrisburg v. Crangle, 3 W. & S. 464.All the actions mentioned in the Act of March 27th 1713, § 1, Sm. L. 76, Purd. 655, pl. 16, are personal actions.

J. A. Lowrie cited Foster v. Cumb.Valley Railroad, 11 Harris 371.He also referred to and commented on the cases cited for the plaintiffs in error.

The opinion of the court was delivered, January 3d 1871, by AGNEW, J.

These two cases can be considered together, the parties and the land in controversy being the same.In the ejectment the plaintiff sues for the possession of the road-bed used by the defendants running through his land; and in the petition for damages, he asks compensation for the right of roadway.The court below decided against the plaintiff in each case, on the ground that his claim was barred by the Statute of Limitations of six years.It is a conceded fact that 15 perches of this land covered by the railroad are not on the bed of the old Beaver road, and are not included in the appropriation proceeding of the Ohio and Pennsylvania Railroad Company, the predecessor of the present railway company.This, therefore, raises a question clearly upon the title of the defendants to so much of the land as was not embraced in the former highway, and not taken by the Ohio and Pennsylvania Railroad Company in due course of law; and how far the title of the plaintiff can be affected by the General Limitation Act of 1713.Both the ejectment and petition were commenced within the two years, contained in the proviso to the Act of 17th April 1860, Pamph.L. 106, and, therefore, that act may be laid out of the case.It is very clear that the title to the possession of land is not barred by the limitation of six years' adverse possession, but only by twenty-one years under the Act of 1785, and, consequently, the action of ejectment to recover a possession unlawfully taken is not barred by the Act of 1713.How far an ejectment when used as a remedy to enforce a charge on land which is barred by limitation may be defeated thereby, is not the question here.If the company entered unlawfully without a legal appropriation and assessment of damages, the only question which can arise in the ejectment is that of title, not charge or incumbrance.Can a railroad company without a grant, release or legal appropriation, enter on any man's land nolens volens, and then bar his re-entry by an adverse possession of six years?The statement of the question refutes the proposition.But the right of the plaintiff stands on higher ground than a mere act of the legislature.The 4th section of the 7th article of the amendments to the Constitution adopted in 1838 provides that "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."This is a great right of protection not to be frittered away by construction, especially in times like these, when the power of vast railroad corporations has grown so formidable.The 10th section of the 9th article of the Constitution of 1790 provides that no man's property shall be taken or applied to public use without the consent of his representatives and without just compensation being made.Under this section it was held not to be necessary that the compensation should be actually paid before the property is appropriated, if a sufficient provision for compensation be directed by the legislature.This is said by Rogers, J., in Pittsburg v. Scott, 1 Barr 314-15, a case decided after 1838, but one in which a municipal corporation took property under an act passed in 1836 before the adoption of the amendment.The amendment of 1838 is not referred to or noticed in the argument or the opinion, and the doctrine was announced on the authority of New York cases.The same judge repeated his language in The Commonwealth v. Wood, 10 Barr 97, citing Pittsburg v. Scott, 1 Barr 309.This case was also that of a municipal corporation, and no reference was made to the amendment.I refer to these cases not as standing in the way, but to distinguish them; and because they stand as the types of others.The amendment of 1838 was adopted to remedy a growing evil arising from the exercise of the power of eminent domain by private corporations and individuals, who afterwards became insolvent or unduly refused compensation, putting the owner to the expense of litigation to secure his rights.The difference in the exercise of the power of the state between private and public hands is stated by Lewis, J., in Yost's Report, 5 Harris 524, who refers to the purpose of the amendment of 1838, and says, quoting the language of Gibson, C. J., in Mon. Nav. v. Coons, 6 W. & S. 114, the difference between the two classes of cases has been held to be that a corporation or an individual must pay or secure the price of the property before it is taken; but the state must provide the means of payment at the passing of the act.It was in this spirit in Western Railroad Co. v. Johnston, 9 P. F. Smith 296, when discussing an attempt to reduce the rights of the landowner to the condition of a subordinate lien, we said, the owner who has never parted with his right stands on the higher fundamental right of property; that no one shall take and use it for the public purpose of a railroad without just compensation being made to him, and that this sacred constitutional right shall not be spirited away by refinement.The Ohio and Pennsylvania Railroad Company, a corporation of foreign parentage and birth, was adopted into the Pennsylvania family of corporations, with this feature in its charter.The 9th section provided, that it should first deposit with the clerk of the Court of Common Pleas a description of the rights and interests intended to be appropriated, and if...