Speer v. Monongahela R. Co.
| Decision Date | 02 October 1916 |
| Docket Number | 420 |
| Citation | 255 Pa. 211,99 A. 810 |
| Parties | Speer v. Monongahela Railroad Co., Appellant (No. 1) |
| Court | Pennsylvania Supreme Court |
Argued May 8, 1916
Appeal, No. 420, Jan. T., 1915, by defendant, from judgment of C.P. Fayette Co., Sept. T., 1911, No. 311, on verdict for plaintiff in case of Louise Dawson Speer, Administratrix d.b.n.c.t.a. of Charles E. Speer, deceased, v. Monongahela Railroad Company. Reversed.
Appeal from award of viewers. Before VAN SWEARINGEN, P.J.
The facts appear by the opinion of the Supreme Court.
Verdict for plaintiff for $15,333.33 1-3 and judgment thereon. Defendant appealed.
Errors assigned were, among others, (1) in refusing defendant's motion for judgment n.o.v., (2, 3) refusing to direct a verdict for the defendant, and (4) the charge of the court.
The first, second, third and fourth assignments of error are sustained, and the judgment is reversed.
W. J Sturgis, with him S. J. Morrow, for appellant. -- The railroad company had the right to abandon the routes where it had taken no actual possession of the land and had not given security for the payment of damages: Dilts v. Plumville R.R. Co., 222 Pa. 516; Fischer v. Catawissa R.R. Co & Philadelphia & Reading R.R. Co., 175 Pa. 554; Wood v. Trustees of State Hospital for Insane, 164 Pa. 159; Graham v. Pittsburgh & Lake Erie R.R. Co., 145 Pa. 504.
E. C. Higbee, of Higbee, Sterling & Matthews, with him F. P. Rush, of Johnson & Rush, for appellee.
Before BROWN, C.J., POTTER, MOSCHZISKER, FRAZER and WALLING, JJ.
This is an appeal from the judgment of the court below, rendered after verdict upon the trial of an appeal from an award of viewers appointed to assess damages resulting from certain steps taken by the defendant company in partial exercise of its right of eminent domain.
It appears from the record that, on January 3, 1901, Charles E. Speer was the owner of the undivided two-thirds of a tract of land in Fayette County, containing some 537 acres. His wife, Sarah Dawson Speer, was the owner of the other undivided one-third of the land. Upon the date in question, January 3, 1901, the defendant company located, and subsequently adopted, a route for its railroad across the land. Charles E. Speer died on May 2, 1905, having by his last will and testament devised his interest in the land to his wife, and appointed her executrix. In December of 1909, the defendant company located and adopted a route for a branch railroad, leading from the main line previously adopted, for a distance of about 1,600 feet across the property. No bond was filed by the defendant company, however, and no possession of the property was ever taken by it. On January 7, 1910, before these proceedings were instituted, Sarah Dawson Speer conveyed the land in question to J. V. Thompson by a deed containing no reference to the right to damages in the eminent domain proceedings. Subsequently, on July 31, 1911, as executrix of Charles E. Speer, she filed a petition for the appointment of viewers. She died on or before May 15, 1912, and Louise Dawson Speer, administratrix d.b.n.c.t.a. was substituted as plaintiff. At the same time that Sarah Dawson Speer filed her petition as executrix of Charles E. Speer, she filed a similar petition in her own right for the appointment of viewers to assess damages to the one-third undivided interest which she owned in the land, at the dates of the locations of 1901 and 1909. On May 7, 1912, these locations were abandoned by formal action of the board of directors of the defendant company. The court below was, however, of the opinion that the petitioners were entitled to the appointment of viewers. The same persons were appointed in each case, the views were held together, and, on appeal from the award of the viewers, the two cases were tried at the same time before the same jury. In his charge, the trial judge summarized the facts, and the contention of appellant, as follows:
The trial judge affirmed a point presented by counsel for plaintiff, which assumed that the right to damages had vested in the owners of the property at the time of the location of 1901, and refused the following point, presented by counsel for defendant: "It appearing that, before any action had been taken by the Court of Common Pleas, upon the petition for the appointment of viewers, and on May 7, 1912, the board of directors of the defendant company, by resolution duly adopted, abandoned the location of 1901, without having entered upon the land for the purpose of constructing its railroad, and without having tendered or filed any bond or bonds to secure the damages to the landowner the railroad company had the right to abandon its location and your verdict should be for the defendant."
The refusal of this point is made the subject of the third assignment of error, and the fundamental question in this appeal is thereby raised. That question is, whether the railroad company, after adopting and locating its line, had the right to abandon the route, before any entry upon the land had been made for construction purposes, and prior to the filing of a bond to secure the payment of damages. If the railroad had at that time the right to abandon the location, there was no basis for these proceedings, and the discussion as to whether the proper parties acted, becomes immaterial.
In the exercise of the power of eminent domain by municipal corporations, the right to discontinue has been liberally sustained. In Funk's Admrs. v. Waynesboro School Dist., 3 Sad. 177, 18 W.N.C. 447, we held as set forth in the syllabus: "In proceedings for the taking of land for school purposes, under the Act of April 9 1867, P.L. 51, where there has been no actual or permanent taking of the land, the petitioners may withdraw all proceedings at any time before final confirmation of the report of viewers." And in Moravian Seminary v. Bethlehem Boro., 153 Pa. 583, 588, it was held that in condemnation proceedings the court has power to authorize a discontinuance, on proper and adequate terms, at any time before judgment, even after a verdict on appeal. Again in Huckestein v. Allegheny City, 165 Pa. 367, it was held that where a city undertakes to change the grade of a supposed street, and it afterwards appears that the street has never been opened or adopted by the city, proceedings to assess damages may be discontinued after verdict and judgment. In Franklin Street, 14 Pa.Super. 403, it was held that condemnation proceedings by a municipality might be discontinued even after a bond had been filed and notice given to property owners to remove. In this case RICE, P.J., said (p. 411): ...
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