Railroad Co. v. Eby

• Decision Date: 06 October 1884
• Citation: 107 Pa. 166
• Parties: Pennsylvania Railroad Co. <I>versus</I> Eby.
• Court: Pennsylvania Supreme Court

107 Pa. 166

Pennsylvania Railroad Co. versus Eby.

Supreme Court of Pennsylvania.

June 7, 1884.

October 6, 1884.

June 7th, 1884.

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

ERROR to the Court of Common Pleas of Dauphin county: Of May Term, 1884, No. 3.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Hall & Jordan for plaintiffs in error.—Under the powers conferred on the company by the Acts of April 13th, 1846 (P. L. 320), and March 17th, 1869 (P. L. 12), the filing of the bond for $20,000 was all the security necessary both for Harris and Eby. The bond enured to the benefit of both. The fund took the place of the land, both parties were relegated to it, and the relation of landlord and tenant thereby extinguished: Dyer v. Wightman, 16 P. F. S. 425. It was error to leave the question of vindictive damages to the jury. There was no evidence of malice on the part of the company: Rose v. Story, 1 Barr 190; Harvey v. Thomas, 10 Watts 63; Pittsburgh Southern Railway Co. v. Taylor, 8 Out. 306. The offer of the record in the ejectment suit by the Canal Co. v. Harris, and of the disclaimer, was not made in justification of the trespass, but as affecting the damages. If Harris did not own the land when he leased it, neither he nor Eby was entitled to damages. After the company entered upon his land, Eby expressed his satisfaction with the way the work was done, and thus waived his right to the prepayment of damages: Mills on Em. Dom. p. 173. Plaintiff below was permitted, by the answer referred to in the eighth assignment, to give evidence as to prospective profits, which is expressly prohibited by the Supreme Court in Dyer v. Wightman, supra. It is error to permit a jury to take out a statement made by either party containing items as to which no evidence was offered: Frazier v. Funk, 15 S. & R. 26; Morrison v. Moreland, 15 S. & R. 61; Hall v. Rupley, 10 Barr 231.

Wallace De Witt and McCarrell (with whom was Fleming) for defendant in error.—Tenants are such owners as are entitled to the security necessary to be given, under the law, before entering leaseholds: Turnpike v. Brosi, 10 Harris 32; Frost v. Earnest, 4 Wharton 91; North Pa. R. R. Co. v. Davis, 2 Casey 238; Workman v. Mifflin, 6 Casey 362; Dyer v. Wightman, 16 P. F. S. 427. Without the tender and approval of a bond to the tenant the entry is trespass, for which an action of trespass q. c. f. will lie: Dimmick v. Brodhead 25 P. F. S. 466. The bond given to Harris was not available to Eby. He could not recover from the railroad on the face of it, and the relation of landlord and tenant would not enable him to recover from Harris. There was no good reason given why the company took possession of the premises in such a summary and unlawful manner. That more than mere compensatory damages may be given by the jury in case of a reckless and wanton trespass is well settled: Amer v. Longstreth, 10 Barr 145; Dennis v. Barber, 6 S. & R. 420; Nagle v. Mullison, 10 Cas. 48; Neiler v. Kelley, 19 P. F. S. 403. The answer of the defendant in error set out in the eighth assignment was responsive to the question and relevant. The injury done to him as lessee by the taking of his land is properly measured by the worth of said land to him, at the stipulate rents, for the residue of the term: Railroad v. Davis, 2 Casey 241.

Mr. Justice TRUNKEY delivered the opinion of the court October 6th, 1884.

Neither the Act of April 13th, 1846, nor the Act of March 17th, 1869, provides that the tender of a bond to and acceptance by the lessor, or the approval of a bond to the lessor by the proper court, authorizes the Pennsylvania Railroad Company to enter upon land in possession of the lessee. By the former Act, before land can be taken the bond must be made "to the party claiming the damages," and by the latter to the "owner or owners thereof or parties interested therein." Eby was in actual possession, and that was notice to the company of his interest in the land. A tenant is an owner or party interested, entitled to security as the statute provides, before entry can be lawfully made on his leasehold without his assent: North Pa. R. Co. v. Davis, 26 Pa. St. 238. Where a company enters upon land without permission, and without payment of damages or security therefor, the person having the right of possession may recover in ejectment whether he be the absolute owner, or owner of an estate for years. Upon like principle such owner may recover in trespass for an injury done to his estate under similar circumstances. The subsequent giving of security, in the mode authorized by statute, will not deprive the injured party of his appropriate remedy for the trespass. There is no error in the rulings complained of in the first three assignments of error.

Nor can the fourth and fifth assignments be sustained. No evidence was admitted that before the trespass the defendant had given a bond to anybody. The offer of the record at No. 52, April Term, 1880, containing the bond that had been given to Harris, was for the purpose of showing that the defendant had the right to appropriate the property, not to show good faith for the purpose of repelling punitive damages. A corporation vested with the right to take private property for public use, after payment of damages or giving security therefor, has no right to touch it before. Where it enters upon property without right, if liable only for actual damages, it can evade the law with impunity. In this case there is no evidence of wantonness or malice beyond that implied from a taking and appropriation without right. Nor is there evidence that the plaintiff assented to the taking. At most the evidence shows that he was satisfied with the manner in which the work had been done, not with the act of taking his property. Had the defendant shown that a bond had been given to the landlord in the belief that it...