Pittsburg, Ft. W. & C. Ry. Co. v. Peet

Citation25 A. 612,152 Pa.St. 488
PartiesPITTSBURG, FT. W. & C. RY. CO. et al. v. PEET et al.
Decision Date03 January 1893
CourtUnited States State Supreme Court of Pennsylvania
25 A. 612
152 Pa.St. 488

PITTSBURG, FT. W. & C. RY. CO. et al.
v.
PEET et al.

Supreme Court of Pennsylvania.

Jan. 3, 1893.


Appeal from court of common pleas, Allegheny county; E. H. Stowe, Judge.

Ejectment by the Pittsburg, Fort Wayne & Chicago Railway Company and the Pennsylvania Company, against Ella K. Peet, William D. Peet and Robert Feet. Plaintiffs obtained judgment. Defendants appeal. Affirmed.

J. S. & E. G. Ferguson, for appellants.

William Scott and Geo. B. Gordon, for appellees.

PAXSON, C. J. This was an action of ejectment in the court below. The plaintiffs showed title to the locus in quo by certain deeds, and by proceedings to condemn it for railroad purposes. The defendants contended that, if the plaintiffs did actually condemn the strip of ground in question, they could not recover in ejectment, for the reason that they did not acquire a fee in the ground, but only an easement, and that ejectment will not lie for a mere right of way. The vice of this argument consists in treating the plaintiff's right as a mere easement or right of way. It is a great deal more than a right of way. They have the actual possession of the property, and that possession is exclusive, at all times and for all purposes, except where a way crosses it. Railway Co. v. Hummell, 44 Pa. St. 375: Railroad Co. T. City of Philadelphia, 88 Pa. St. 424. The estate acquired by a railroad company by a condemnation of land is often spoken of as an "easement," but the term is used in a loose way, for the purpose of distinguishing it from a "fee." In the recent case of Pennsylvania S. V. R. Co. v. Reading Paper Mills. 24 Atl. Rep. 205, it was said by our Brother Mitchell: "Such title is sometimes called an 'easement,' but it is aright to exclusive possession,—to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations, and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee. There was no such easement at common law, and it may well be doubted if it is not a misnomer to extend to this newly-invented interest in land the name of 'easement,' perhaps appropriate enough to the railroad's ordinary right of way for its tracks. It would seem to be rather a fee in the surface and so much beneath as may be necessary for support, though a base or conditional fee, terminable on the cesser of the use for railroad purposes. But, whatever it may be called, it is, in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT