Warrell v. Railroad Co.
| Decision Date | 06 January 1890 |
| Parties | CHARLES WARRELL v. WHEELING ETC. R. CO. |
| Court | Pennsylvania Supreme Court |
Before STERRETT, GREEN, CLARK, McCOLLUM and MITCHELL, JJ.
APPEALS BY CHAS. WARRELL AND S. A. OLIVER ET AL. FROM THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY.
Nos. 171, 224 October Term 1889, Sup. Ct.; court below, No. 233 November Term 1884, C. P.
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Mr. R. W. Irwin and Mr. J. D. Braden (with them Mr. E E. Crumrine and Mr. Boyd Crumrine), for Charles Warrell, appellant.
Upon the question of distribution, as between the claimants, counsel cited: (1) Philad. etc. R. Co. v. Cooper, 105 Pa. 239; McClinton v. Railroad Co., 66 Pa. 404; Gilmore v. Railroad Co., 104 Pa. 275; East Penna. R. Co. v. Schollenberger, 54 Pa. 144; Davis v. Railway Co., 114 Pa. 308; 2 Wood's Railway Law, 770; Bemis v. Springfield, 122 Mass. 110; Murray v. Commissioners, 12 Met. 455: Wheeling etc. R. Co. v. Warrell, 122 Pa. 613; Lycoming Gas & Water Co. v. Moyer, 99 Pa. 615. (2) McMullen v. Wenner, 16 S. & R. 18; Fasholt v. Reed, 16 S. & R. 266; Catlin v. Robinson, 2 W. 373; Stewart v. Coder, 11 Pa. 94; Purviance v. Lemmon, 16 S. & R. 294. (3) Dimmick v. Brodhead, 75 Pa. 466; Livermore v. Jamaica, 23 Vt. 361; Cushman v. Smith, 34 Me. 277; Stacey v. Railroad Co., 27 Vt. 39; Fox v. Railroad Co., 31 Cal. 538; Hetfield v. Railroad Co., 29 N. J. L. 571; Buffalo etc. R. Co. v. Harvey, 107 Pa. 319; McClinton v. Railroad Co., 66 Pa. 404; 2 Wood's Railway Law, 790; Blodgett v. Railroad Co., 64 Barb. 580. Upon the question of the allowance of the attorney's fees, etc., counsel cited: 3 Pomeroy's Eq. J., §§ 1271, 1283; East L. Lumber and Mfg. Co. v. Marsh, 91 Pa. 96; Ruple v. Bindley, 91 Pa. 296; McKelvy's App., 108 Pa. 615; Patten v. Wilson, 34 Pa. 299.
Mr. John L. Gow and Mr. T. F. Birch, for Sarah A. Oliver et al., appellants.
Upon the question of distribution, as between the claimants, counsel cited: Davis v. Railroad Co., 114 Pa. 313; Wadhams v. Railroad Co., 42 Pa. 310; McFadden v. Johnson, 72 Pa. 335. Upon the question of the allowance of the attorneys' fees, etc., counsel cited: Freeman v. Shreve, 86 Pa. 135; Newbaker v. Alricks, 5 W. 183; Knox v. Campbell, 1 Pa. 366; Brady v. Colhoun, 1 P. & W. 140.
These are cross-appeals from the decree distributing a fund paid into court under the following circumstances:
In 1855 the Hempfield Railroad Company located its road through a farm jointly owned by James Warrell, Sr., Rebecca Miller, William Warrell, Sarah A. Warrell (now Oliver), and Charles Warrell; and for several years thereafter was engaged in its construction without having tendered a bond, or having instituted any proceeding for adjustment of the damages. In the meantime no resistance was offered by the landowners, but in September, 1860, they and the railroad company entered into a written agreement by which the "assessment of damages to the property of the parties of the first part, by the construction of the railroad through it," was referred to parties therein named, to "fix and determine the quantity of said lands appropriated and necessary to be appropriated by the said company, . . . . ascertain and determine all damages sustained by the parties of the first part by reason of the construction of said railroad," etc., and agreeing that the award of said referees, "or that of a majority of them, shall be final and conclusive, without exception, and upon which judgment shall be entered by the prothonotary of said court in the proceeding or suit of said parties of the first part."
The referees, having heard the parties and examined the premises, found that the quantity of land appropriated by the company, a plot of which was attached to their report, was 5.22 acres, valued at $80 per acre, and that the said landowners "have sustained damages, in the aggregate, which, including the value of said lands and the cost of building the requisite extra fencing along the side of said road, amount to the sum of eight hundred dollars;" which sum they awarded to the "owners of said land as and for all damages caused thereto by the said railroad." That award was accepted by the company and the parties in interest as a final ascertainment of the damages, etc., but no part thereof was ever paid or otherwise secured.
Afterwards, in 1866 and 1867, Charles Warrell, by devise and conveyances, acquired the respective interests of his cotenants in the farm, but neither the will nor deeds of conveyance under which he became sole owner contained any reference to the damages aforesaid, nor did either of the parties otherwise transfer to him their respective interests in the award. In 1884, Charles Warrell, being thus invested with the legal title to the farm, brought an action of ejectment for the strip of 5.22 acres of land mentioned in the award, against the Wheeling Pittsburgh & Baltimore Railroad Company, which, in the mean time, had succeeded to the property, rights, and franchises of the Hempfield Railroad Company. That action was so proceeded in that a conditional judgment was entered in favor of the plaintiff, Charles Warrell, for the strip of land in controversy, to be released on payment into court by the company, within 60 days, of the amount of the award, with interest thereon, amounting in all to $2,118, to be distributed by the court to the parties entitled thereto. That judgment having been affirmed by this court: 122 Pa. 613, the money was accordingly paid into the court below, and thereupon an auditor was appointed to distribute the same. Before bringing the action of ejectment, Charles Warrell agreed with his attorney, Mr. Braden, that the latter should have, as compensation for his services, one third of whatever might be recovered.
The facts, of which the foregoing is merely an outline, are fully presented in the auditor's report, and constitute the basis of the decree appealed from. Mr. Braden having conducted the suit against the railroad company to a successful termination, appeared before the auditor, and claimed, for himself and those associated with him in the case, one third of the fund as compensation for their professional services. That, together with a small bill for printing the paper-book in the case, was resisted by all the parties in interest except Charles Warrell. Both claims were allowed, and from that branch of the decree the appeal of Sarah A. Oliver et al., No 224 October term 1889, was taken. The residue of the fund, less costs of audit, was claimed by Charles Warrell as sole owner of the legal title on which the action of ejectment was grounded; but the auditor and court below refused to sustain his contention, and distributed it among those who jointly owned the land, when the submission and award were made, according to their respective interests in the land at that time. From that part of the decree Charles Warrell appealed.
The decree thus complained of is so amply vindicated in the report of the learned auditor and opinion of the court below that, for reasons there given, we might well dismiss both appeals without further comment. There can be no question as to the character of the fund in controversy. It represents the damages sustained by the joint owners of the farm by the location and construction of the railroad through the same. Their claim, as recognized in the submission, was for those damages, and nothing else, and the sum awarded to them by the referees, as tenants in common of the land, is specified "as and for all damages caused thereto by said railroad." Charles Warrell, as one of the tenants in common, had, and still has, an interest in the award and proceeds thereof, corresponding with his interest in the farm at the time the...
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