Philadelphia, Newtown and New York Railroad Co. v. Cooper

• Decision Date: 03 March 1884
• Citation: 105 Pa. 239
• Parties: Philadelphia, Newtown and New York Railroad Co. et al. v. Cooper.
• Court: Pennsylvania Supreme Court

105 Pa. 239

Philadelphia, Newtown and New York Railroad Co. et al. v. Cooper.

Supreme Court of Pennsylvania.

March 3, 1884

January 31, 1884

1. An entry by a corporation invested with the right of eminent domain, upon private land without first making compensation to the owner or giving adequate security therefor, is a trespass. Until such compensation is made or security given the full title to the premises is in the private owner, and he may maintain ejectment for their recovery.

2. Where land was taken by a railroad corporation without first paying or securing compensation, and the private owner subsequently agreed with the corporation to accept a specific sum for the right of way over his property, to be paid within twenty days after the issuance of certain bonds contemplated by said corporation, and the agreement was never executed by the payment of said purchase money:

Held, in an action of ejectment brought by the private owner against the corporation to recover said property, that the unexecuted agreement could not be set up to defeat the plaintiff's right of recovery.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas, No. 2, of Philadelphia County: Of January Term, 1884, No. 61.

Ejectment by James E. Cooper against the Philadelphia, Newtown and New York Railroad Company, and the Philadelphia and Reading Railroad Company, to recover possession of a certain lot of ground in Philadelphia county.

The following facts appeared upon the trial: The Philadelphia Newtown and New York Railroad Company, a corporation chartered under the provisions of the General Railroad Act of 1849, and its supplements, in 1872 took possession of the ground in question, then belonging to James E. Cooper, by virtue of its right of eminent domain, for the purpose of constructing a railroad. Prior to its entry it neither paid Cooper for said land, nor tendered him security for such compensation. On July 8, 1873, it entered into the following agreement with Cooper:

" It is hereby agreed by the Philadelphia and Newtown Railroad Company to pay James E. Cooper fifteen hundred dollars per acre for the right of way for all land used by the said company, from the middle of Wyoming Avenue to the south side of the said Cooper's property, including all land cut off, and south of the creek as now laid out by the said company; payment to be made within twenty days from the date at which the bonds are ready for issue, and interest to commence August 1, 1873. Survey to be made as soon as practicable. In witness whereof we have hereto set our hands the eighth day of July, 1873.

JAMES E. COOPER

H. G. SICKEL, President Phila., N. & N.Y. R. R. Co.

BARCLAY J. SMITH, )

) Executive Committee."

ALFRED BLAKER, )

This agreement was made by both parties in anticipation that the Pennsylvania Railroad Company would endorse or guarantee the bonds mentioned in said agreement, which the Philadelphia Newtown and New York Railroad Company then contemplated issuing, but the former company finally refused to do this in the fall of 1873, and no payment was ever made to Cooper under the above agreement. The Philadelphia, Newtown and New York R. R. Company became insolvent in 1876, and all its property and franchises were sold by the sheriff to Benjamin Smith et al., by whom they were subsequently conveyed to a new corporation, under the same name. This company leased their road to the Philadelphia and Reading Railroad Company, and, with the last named corporation, is the defendant in this...