McFadden v. Johnson
| Citation | 72 Pa. 335 |
| Parties | McFadden v. Johnson. |
| Decision Date | 06 January 1873 |
| Court | United States State Supreme Court of Pennsylvania |
November 12, 1872
1. The plaintiff was owner of land through which a railroad was constructed; without receiving damages she sold the land; the company afterwards settled with the purchaser and paid him the damages. Held, That she could recover the amount from him.
2. The damages were a personal claim of the owner when the injury occurred; they did not run with the land, nor pass by the deed, although not reserved.
3. Schuylkill Nav. Co. v. Decker, 2 Watts 343 followed.
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1872, No. 109.
This was an action of assumpsit, brought to December Term 1869, by Eliza McFadden against Henry C. Johnson.
The statement of the plaintiff's claim was substantially as follows:--
She was owner of a tract of land in Crawford county, through which the Pittsburg and Erie Railroad Company, in the year 1856 had constructed their road, and had thereby damaged her said tract of land; in the month of March 1857, she contracted to sell her land to John Scott, and Scott assigned his contract to the defendant; afterwards the Atlantic and Great Western Railway Company succeeded to the franchises and liabilities of the Pittsburg and Erie Railroad Company. The defendant afterwards, in 1862, effected a settlement with the Atlantic and Great Western Railway Company for the damages done to the land previously to the sale to Scott, for which he, the defendant, received from the company $625; afterwards without informing the plaintiff that he had received the damages, he received a deed from her, having paid all the purchase-money except $263.63.
The plaintiff's claim was for the damages and the unpaid purchase-money.
The case was tried May 1st 1872, before Collier, J.
The plaintiff proved the allegations set out in her claim, as regards the sale to Scott, his transfer to the defendant, and execution and delivery of a deed to him. A. W. Mumford, who had been a director and one of the committee on land damages in the Atlantic and Great Western Railway Company, testified that he had examined the plaintiff's land before that company took possession of it; it was badly cut, owing to the line of curving; the cutting was 30 feet deep, and the embankment at the lowest point 25 feet. He gave further details as to the injury done to the farm.
There was other evidence showing that the damages had accrued to the land before the plaintiff sold it.
It was admitted by defendant that he had settled with the Atlantic and Great Western Railway Company for the damages, and received from them $625.
The verdict was for the plaintiff for $263.63. She took a writ of error, and assigned the charge for error.
Stoner & Patterson and A. M. Brown, for plaintiff in error.
G W. De Camp, for defendant in error.
The opinion of the court was delivered, January 6th 1873, by AGNEW, J.
The court below charged the jury that on all the evidence the plaintiff was not entitled to recover, except for the admitted balance of purchase-money unpaid by the defendant. This was an error, the plaintiff having shown that she was the owner of the farm when the railroad company entered upon it, and made the cutting and filling for...
To continue reading
Request your trial