Phillips v. Dunkirk, Warren & Pittsburg Railroad Co.

• Decision Date: 10 May 1875
• Citation: 78 Pa. 177
• Parties: Phillips <I>versus</I> Dunkirk, Warren & Pittsburg Railroad Co.
• Court: Pennsylvania Supreme Court

78 Pa. 177

Phillips versus Dunkirk, Warren & Pittsburg Railroad Co.

Supreme Court of Pennsylvania.

March 24, 1875.

May 10, 1875.

March 24th 1875.

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

Error to the Court of Common Pleas of Warren county: No. 284 to January Term 1874.

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S. P. Johnson for plaintiff in error.—Land dedicated for use as a public highway, gives no right to use it for other purposes, and the right to the soil continues in the owner of the land over which it is laid: Lewis v. Jones, 1 Barr 336; Chess v. Manown, 3 Watts 219; Chambers v. Fury, 1 Yeates 167. The owner of soil bounded by a highway owns to its centre: Union Burial Soc. v. Robinson, 5 Wharton 18; Paul v. Carver, 12 Harris 207; Cox v. Freedly, 9 Casey 124; Baker v. Chester Gas Co., 23 P. F. Smith 116. The owner of the land adjoining a highway is entitled to compensation when it is put to a different and more dangerous use: Springfield v. Connecticut Railroad Co., 4 Cushing 63; Williams v. Natural Bridge Pass. Ry., 21 Miss. 580; Williams v. New York Central Railway, 16 N. Y. 97; Presbyterian Soc. v. Auburn & R. Railway, 3 Hill 567; Mifflin v. Railroad Co., 4 Harris 182; Ridge Turnpike v. Stoever, 6 W. & S. 378.

R. Brown for defendants in error, examined and discussed the cases cited by plaintiff in error, and also the General Railroad Law of 1849; he cited also Phila. and Trenton Railroad case, 6 Wharton 25.

Mr. Justice GORDON delivered the opinion of the court, May 10th 1875.

The land of the plaintiff was subservient only to the public right of way; of the right to the soil he was never divested, but only of the surface thereof, so far as was required for the public convenience. As soon as the common road was vacated, either by legal process or by abandonment, the right to such occupancy revested in the owner of the fee; Lewis v. Jones, 1 Barr 336; Chess v. Manown, 3 Watts 219; Chambers v. Fury, 1 Yeates 167.

It is certain then, that a private individual would have had no right without the consent of the owner, to have occupied the land in controversy, by permanent fixtures for his own use, even before the vacation of the highway. But this corporation, defendant, had no better right in the premises than a private person, unless such right was conferred upon it by some legislative enactment. "If it possesses the right claimed, it must be found in the power specifically granted, or must result as a necessary implication from the express grant, and if it can neither be found in, nor implied from, the terms of the grant, it does not exist:" Plymouth Railroad Co. v. Colwell, 3 Wright 340, per Woodward, J.

Without such grant, though the company might have the right of occupancy, yet it would be responsible for consequential damages resulting from an extraordinary use thereof. As where land had been appropriated by a turnpike company and damages paid, and by an act of the legislature the turnpike company was authorized to sell to a railroad company, and the latter to lay rails upon the road-bed of the former; held, that the owners of the land were entitled to recover the damages consequent upon the construction of the railroad; Mifflin v. Railroad Company, 4 Harris 182.

Such being the rule of law, whence did the defendant derive its right to appropriate the land in question?

The learned court below held, that this right was derived from the 13th section of the Act of 1849. That by supplying the common road, under the provisions of that act, it became entitled to the use of...