State ex rel. Dept. of Transp. v. Penn Central Corp.

• Decision Date: 31 March 1982
• Parties: The STATE of Delaware, Upon the Relation of the DEPARTMENT OF TRANSPORTATION, Plaintiff, v. The PENN CENTRAL CORPORATION, a corporation of the Commonwealth of Pennsylvania, et al., and Unknown Others, Defendants.
• Court: Delaware Superior Court

Page 939

445 A.2d 939

The STATE of Delaware, Upon the Relation of the DEPARTMENT

OF TRANSPORTATION, Plaintiff, v. The PENN CENTRAL CORPORATION, a corporation of the

Commonwealth of Pennsylvania, et al., and Unknown

Others, Defendants.

Superior Court of Delaware,

Sussex County.

Submitted Oct. 26, 1981.

Decided March 31, 1982.

Aubrey B. Lank, William S. Gee (argued), and David Lank (argued), of Theisen, Lank, Mulford & Goldberg, Wilmington, for the State of Delaware.

Eduard F. vonWettberg, III, and Edward M. McNally (argued), of Morris, James, Hitchens & Williams, Wilmington, for the Penn Central Corp. and Philadelphia, B. & W. R. R.

TAYLOR, Judge.

This is an action by the State of Delaware upon the relation of the Department of Transportation [plaintiff] against Penn Central Corporation [Penn Central] and approximately 350 individual defendants to acquire by eminent domain the fee simple absolute title to a strip of land together with rails, ties, ballasts and bridges running approximately 16.1 miles from Georgetown, Delaware to Lewes Beach, Delaware which has been used for a railroad line. The central question is whether and to whom compensation must be paid as a result of the taking of the land. Plaintiff concedes that Penn Central is entitled to compensation for the rails, ties, ballasts and bridges and has agreed to the distribution to Penn Central of the sum of $251,787, the amount of plaintiff's estimate of the value thereof.

Penn Central is the successor of the Junction and Breakwater Railroad Company [Railroad] which was formed February 13, 1857 by act of incorporation, 11 Del.Laws Ch. 354. Railroad acquired title or rights in the land involved in this condemnation by deed, condemnation, and agreement extending as late as 1915 involving approximately 80 parcels. Because of the diverse means of acquisition, the Court will consider separately the rights acquired by the Railroad under each category.

I. A.

Railroad's rights in approximately 31 parcels were acquired by Railroad by condemnation. The Act which incorporated the Railroad, 11 Del.Laws Ch. 354, provided "whenever any land, earth, sand, gravel or other materials necessary to be taken and used in the construction of the said railroad, cannot be procured or purchased of the owner thereof, by agreement between him and the company," the Superior Court, upon application of the Railroad, would appoint freeholders "to view the premises and assess the damages, which the owner or owners will sustain by reason of the railroad passing through or taking or using the same." (§ 11). It further provided that upon payment of the assessed damages "the title to the land and premises described and condemned in said report, for the purposes aforesaid, shall be absolutely vested in the said company, their successors and assigns." It further provided that prior to final resolution of the amount of damages, the Railroad may pay into court the amount awarded by the freeholders ¹ and thereupon "it shall be lawful for the said company to enter upon the lands therein condemned, without further delay, and to use and occupy the same for the purposes aforesaid ..."

Penn Central contends that its rights are determined by the language which states that "title to the land ... shall be absolutely vested in said company". Plaintiff points to the quoted portions which make reference to the use and occupancy of the condemned land "for the purposes aforesaid" and points out that that phrase immediately precedes the absolute vesting language relied upon by Penn Central. It is significant that each reference to the title and use which Railroad would acquire under its exercise of eminent domain is accompanied by the words "for the purposes aforesaid".

The Delaware decision which provides insight into the effect of statutory phraseology such as that found here is Thomison v. Hillcrest Athletic Ass'n, Del.Super., 5 A.2d 236 (1939). In Thomison this Court considered whether land which had been acquired by eminent domain under a school statute, 21 Del.C. Ch. 67, was held in fee simple or whether the condemnation proceeding had acquired only the right to use the land for school purposes. Judge Rodney, a scholar of Delaware legal history, sitting with Judge Speakman in this Court, considered the scope of a condemnation statute authorizing condemnation for school purposes. That statute, like the statute under consideration here, provided that upon payment of the damages "the said land so taken shall become and be the property of the [condemning party] for the purpose aforesaid". The Thomison Court considered the effect of the words "for the purpose aforesaid" upon the general statement "that the said land so taken shall become and be the property of the said school district" and held that this was a limiting phrase which prevented the acquisition of fee simple title by condemnation, since the objective of the statute was to provide for the acquisition of rights necessary to carry out the objective of the statute, namely, to conduct a school and that providing a school did not require fee simple title.

This Court in Thomison also relied on the historic consideration that condemnation can be exercised only for a public use and that, at least where qualifying language is used, the statute should be strictly construed to assure that the property owner is not deprived of any right which was not required for that public use. The Court held that the rule of strict construction applies not only to the quantity of property to be taken but also to the quantum of the estate or interest to be taken.

Penn Central seeks to distinguish Thomison on the ground that Railroad had an unqualified power to purchase real estate and therefore the reasoning of Thomison should not limit its power of condemnation. However, an examination of the statute which authorized school committees to establish schools empowered the committee "to purchase the necessary ground". 21 Del.Laws Ch. 67 § 15. Thomison exemplifies the distinction which the law made at the time of Railroad's acquisitions between the power to purchase and the power to take by eminent domain.

I note in passing that the Court in Thomison commented that the same language involved in Thomison appeared in an earlier school law, 11 Del.Laws Ch. 442, which was enacted by the same General Assembly which enacted Railroad's statute, and the statutes were passed only 20 days apart. It must be assumed that the reference in each statute to the specific purpose for which the property was to be held was intended to produce a similar result.

I conclude that the eminent domain language of the school law considered in Thomison and that of Railroad's statute, although containing different phraseology, both contain the ingredient which Thomison found controlling, namely, language tying the acquisition to the purpose of the acquisition. Therefore, under the reasoning of Thomison, Railroad did not acquire fee simple title by its condemnations.

According to an annotation appearing in 155 A.L.R. 381 et seq., the prevailing view in the 19th century was that a railroad right of way was normally only an easement. Thus, a presumption existed that a taking for railroad purposes did not deprive the private owner of fee simple title unless the language used in the taking clearly and expressly showed that the fee was being taken. Therefore, an authorization to condemn land for a specified purpose was limited to the acquisition of the interest necessary to accomplish the purpose stated, and even if the statute conferred the power to acquire fee simple title the condemnation proceeding must expressly show an intention to acquire all of the title interests. Ibid. 26 Am.Jur.2d Eminent Domain § 137, pp. 798-800. The principle discussed above is recognized in 5A Thompson on Real Property § 2581, p. 187 and 3 Nichols on Eminent Domain § 11.1.

The material provided to the Court from the condemnation proceedings does not describe the land rights which the Railroad purported to acquire in the condemnation. However, the condemnation award judgments which were entered in favor of the property owners generally provided that the award represented the damages:

which the said owner will sustain by reason of said railroad passing through, using and occupying (for the purpose of making said railroad,) a portion of said lands upon which the said railroad is located, to wit ... (followed by a description which referred to the center line of the railroad and a width of 66 feet).

This not only makes no mention of the acquisition of fee simple title to the strip of land, but instead it compensates for damages sustained by reason of the railroad "passing through, using and occupying (for the purposes of making said Railroad,)". Therefore, the condemnation papers do not overcome the presumption that the condemnation was only to procure a railroad right of way and not fee simple title.

The case of Vandergrift v. The Delaware R. R. Co., Del.Super., 2 Hous. 287 (1860) is of interest. It arose three years after the incorporation of Railroad and a few years before Railroad's acquisitions. The statute which authorized Delaware Railroad to exercise eminent domain provided that upon payment of the award it would be "entitled to have, use and enjoy the said lands for the purposes by them required forever". The issue was whether Delaware Railroad had a duty to fence its tracks. A statute required an owner of land to construct a division fence. Delaware Railroad's attorney, James A. Bayard, Esquire, and plaintiff's attorney, George B. Rodney, Esquire, both argued that Delaware Railroad which had acquired the area by condemnation merely had a right of way and was not the owner of the land where the tracks were located. The unanimity in this case which was participated in by prominent Delaware lawyers indicates the view which was held at the time concerning the legal effect of condemnation under...