Wadhams v. Lackawanna & B.R. Co.

• Decision Date: 21 April 1862
• Citation: 42 Pa. 303
• Parties: Wadhams v. The Lackawanna and Bloomsburg Railroad Company.
• Court: Pennsylvania Supreme Court

42 Pa. 303

Wadhams v. The Lackawanna and Bloomsburg Railroad Company.

Supreme Court of Pennsylvania.

April 21, 1862

1862

ERROR to the Common Pleas of Luzerne county.

This was an action of ejectment, brought January 1st 1857, by Samuel Wadhams against The Lackawanna and Bloomsburg Railroad Company, to recover possession of seventy-six and six-tenths perches of land in Plymouth township, occupied by a portion of the road of defendant.

In 1852 an Act of Assembly was passed, and in March 1853 a charter was obtained incorporating the Lackawanna and Bloomsburg Railroad Company.

Sometime in the year 1854 a survey was made for the location of the railroad, but precisely when it was made, or by whom, does not appear.

On the 3d of November 1854, a damage bond was tendered to Mr Wadhams, and at the same time a notice was served on him that on the 15th instant the bond would be presented to the Court of Common Pleas, & c. Exceptions were presented to the court and filed, on the part of Mr. Wadhams against the propriety and regularity of the bond, which were overruled by the court, the sureties were approved of by the court and the bond filed.

Nothing further was done in the premises until the 15th August 1855 when additional exceptions were filed, on the part of Mr Wadhams, to the bond and the proceedings under it, with an application to strike off the bond, which the court in a written opinion refused to do.

Sometime in November 1855, the company took possession of the land and commenced grading the road. On the 1st day of January 1857 this ejectment was brought by Mr. Wadhams. On the 6th of April 1857, at the instance of the defendant, the court granted a rule on the plaintiff, in the case of No. 72 January Term 1855 (the docket number of filing the bond), to show cause why the description of land may not be amended in accordance with facts.

On the 30th October 1858, on motion in open court, the defendant was permitted by the court to withdraw the application to amend the bond. On the 11th of January 1860, the cause came on for trial, when the plaintiff asked the court to charge the jury:--

1. That the bond filed in this case was not conditioned as the Act of Assembly requires, because it provides only for the damages sustained by the location of the road. It should have covered the damages arising from the construction of the road.

2. There is no evidence of any attempt by the company to settle and agree upon the damages with the plaintiff before entering upon his land, and before the filing the bond in this case. A fair and bonâ fide attempt to settle must be made by the company before they had a right to tender a bond to Mr. Wadhams, or to file it in the Court of Common Pleas, and before any entry can be legally made upon the land to occupy it for the construction of the road. And no evidence has been presented to show that the company made or took the preliminary steps required by law in order to appropriate the land for a road.

3. The plaintiff can be divested of his land only by a strict compliance with the terms of the Act of Assembly on the part of the defendants in order to appropriate it for a road. Until this is done the defendants cannot set up any legal defence against the plaintiff's recovery in this case.

4. Upon the whole evidence in this case the plaintiff is entitled to recover.

The defendants also requested the court to charge:--

1. That the attempt to agree, the character of the bond, and all the proceedings preliminary to the building of the railroad, are, so far as regards the present action, in the nature of res adjudicata, and cannot be collaterally inquired into.

2. That where a remedy is provided by statute, and the parties have proceeded under it as in the case of the proceedings upon the bond, the remedy must be continued, and neither party can resort to another form of proceedings, and that therefore the defendants are entitled to a verdict.

3. The defendants having located their road upon the plaintiff's land, filed this bond, and procured the decree of the court as to its sufficiency, cannot resort to a remedy by ejectment.

4. That under the statute the filing of a bond by the defendants creates a legal inference of an inability of the parties to agree as to the amount of damages.

5. That, under all the evidence in the case, the defendants are entitled to a verdict.

The court below (CONYNGHAM, P. J.) charged in substance as follows:--

" The plaintiff has shown title to the land, as is conceded, and must recover in this suit, unless something else will prevent it.

The defendants, not denying the original title of the plaintiff, claim that they legally occupy the ground for the purposes of their railroad, and are thus in possession; and the only question before us is, whether they have the right so to do, and can legally claim the possession of it.

The defendants claim, that under authority constitutionally vested in the legislature, to take, when necessary, the lands of an individual, for public purposes, upon tendering proper compensation therefor, or securing the owner for such compensation, with means provided for ascertaining the amount of his proper demand, for thus taking his property and transferring his enjoyment of it to the company, they have lawfully taken possession of the piece of land in dispute, having first, in pursuance of the provisions of law, tendered to the plaintiff, and filed in this court, for his protection and use, a bond securing to him the value of the property taken, with damages thereby incurred, and that thereby the right to occupy the land for their road purposes has become vested in them. If this be so, the plaintiff cannot recover here.

On the 19th of February 1849, the General Railroad Law of our state was passed, and by Act of 5th April 1852, authority was given to charter the Lackawanna and Bloomsburg Railroad Company, " with all the powers, and subject to all the restrictions, of the above-mentioned general act." Under this authority, on the 24th of March 1853, the governor of the state duly issued a charter and letters patent to this company, and thus gave them legitimate existence.

By the 10th section of the general act, full power was given to the company, by their officers, engineers, agents, & c., to enter upon and take the necessary land, & c., but it is also provided, that before appropriating, that is, entering upon and taking such possession, they shall make ample compensation to the owners, or tender adequate security therefor.

By the 5th section of the Act of 1852, authorizing the charter of this present company, a mode is provided for ascertaining this compensation, and properly securing the payment of it, viz., according to the provisions of the 2d section of an act relating to the Pennsylvania Coal Company, passed the 7th March 1849, P. L. 135.

The defendants contend now, that, before taking the land occupied by them, they did pursue the provisions of this section so as to secure to the plaintiff proper compensation.

They produce, and give in evidence, a bond, dated October 20th 1854, filed in this court November 20th of the same year, proved by undisputed testimony, to have been previously tendered to the plaintiff, and refused by him, and at the time of the order of filing, made by this court, the sufficiency of the sureties having been approved by us. This bond is produced in evidence, but various objections against its effect and validity are advanced by the counsel of the plaintiff in the course of their arguments, and in the points upon which we are requested to charge.

[We read the plaintiff's first point, and say we do not so construe the bond. The words of the condition, in our opinion, as expressed at the time of its being filed, and now again re-expressed, will cover any damages which may be assessed under the provisions of the Acts of Assembly already cited.

The term location will cover the construction of the road, and all incidental damages; an equally comprehensive meaning being given to the term in the 10th section of the General Railroad Law of 1849.

We also say that the amount of damages, under the terms of the condition, may be recovered by action upon the bond, whether it exceed the penalty of the bond or not.

In receiving such bonds, and approving of them, we did not regard the amount of the penalty as so important as it otherwise might have been, but for the special clause in the condition.

According to the evidence, the reference and description of the third piece of land mentioned in the bond applies to the land now in dispute upon which the road is located.

It is objected, however, that the reference is too vague, inasmuch as it does not describe the exact land, or over what part of the land the road is...