Warrell v. Wheeling Etc. R. Co

• Decision Date: 06 January 1890
• Docket Number: 171,224
• Citation: 18 A. 1014,130 Pa. 600
• Parties: CHARLES WARRELL v. WHEELING ETC. R. CO
• Court: Pennsylvania Supreme Court

18 A. 1014

130 Pa. 600

CHARLES WARRELL v. WHEELING ETC. R. CO

Nos. 171, 224

Supreme Court of Pennsylvania

January 6, 1890

Argued October 22, 1889

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.

On October 11, 1884, Charles Warrell brought ejectment against the Wheeling, Pittsburgh & Baltimore Railroad Co., to recover a strip of land containing 5.22 acres, then occupied by the line of defendant company's railroad. At the trial of the cause on March 21, 1888, the plaintiff proved title in himself to the land in dispute and rested. The defendant then put in evidence the organization of the Hempfield Railroad Company, the judicial sale of the franchises and property of said company, and the vesting of the title thereto in the defendant company. It was then shown by the defendant that the Hempfield Railroad Co. had entered upon the land in dispute in 1854 or 1855, and had constructed its roadbed through it in 1857; that on September 29, 1860, the Hempfield Rairoad Co. and the then owners of the land, the plaintiff owning one ninth thereof, entered into an amicable submission to referees, by whom an award was made, dated October 24 1860, which ascertained the compensation to which the landowners were entitled from the defendants at $800. The offer of the submission and award was objected to by the plaintiff, unless it was proposed to follow it with evidence, inter alia, that the railroad company had either paid the compensation liquidated in the award, or had secured the payment thereof according to law. The objection was overruled and the offer admitted.

The cause was then submitted to the decision of the court, without the jury, and on April 9, 1888, a decision was filed entering judgment in favor of the plaintiff for the land in dispute, to be released if the defendant company paid into court, within 60 days, the sum of $2,118, "to be distributed by the court to and among the parties entitled thereto;" otherwise, etc. To this decision and judgment a writ of error was taken by the defendant company to No. 142 October Term 1888, Sup. Ct., and on October 29, 1888, the judgment was affirmed: Wheeling, P. & B.R. Co. v. Warrell, 122 Pa. 613. On December 11, 1888, the defendant company paid into court the sum of $2,156.83, and Mr. Freeman Brady, Jr., was appointed auditor to report a distribution of the same "to and among the parties entitled thereto."

On the hearing before the auditor, Charles Warrell claimed the whole of the fund in court, on the ground that, the defendant company never having paid or secured the compensation ascertained by the submission and award until after the ejectment was brought, the fund for distribution "was the price which the Wheeling, Pittsburg & Baltimore Railroad Co. paid for the privilege of remaining on his farm; that the right of way was never vested in said company until it paid the money into court, and that being the owner of the land at the time the easement vested in the company, he was entitled to the price paid for it." He contended further that the other claimants to the fund, having conveyed their entire title to him before there had been any legal appropriation of the land by the company, they had no further claim against the company except for the trespass committed by it prior to their conveyances; and, even if it were conceded that they were entitled to any portion of the award after their conveyances, they were barred by lapse of time from bringing any action against the company to recover the same at the time the action of ejectment was begun, and were not entitled, therefore, to aprticipate in the distribution of the money recovered from the company by the owner of the legal title.

Mr. J. D. Braden and his associate counsel, for their services in the trial of the ejectment case, claimed one third of the fund for distribution, establishing a contract therefor with the plaintiff, made when the action was instituted. A bill of $21, for the printing of the paper-book of the defendant in error in the ejectment case, was also presented.

Sarah A. Oliver and others, brothers and sisters of Charles Warrell, appeared before the auditor and claimed each a portion of the fund, on the ground that each being an owner of a one ninth interest in the land in September and October, 1860, the time of the submission and award, they were entitled each to one ninth of the fund for distribution. They also objected to the allowance of the claim for attorneys' fees and the expense of printing the paper-book for the Supreme Court, in so far as the same would affect their several claims upon the fund.

The auditor, upon the foregoing facts undisputed and positions controverted, reported:

It cannot be doubted to whom this fund belonged in 1860. Certainly the parties to that submission, of the first part, were the rightful claimants at that time of this fund. The rights of the parties were not doubted at that time, and that the parties to the submission were the rightful owners, no one called in question. They mutually entered into this contract of submission. Charles Warrell entered into the contract with the others, thereby admitting their rights. It cannot be doubted that the money in court, and now for distribution, is that award, increased by the interest thereon. The award in 1860 was in favor of all the parties to the submission, according to their respective interests therein. Has anything taken place since that time to change the rights of the parties thereto? Let us see.

Charles Warrell, since that date, has become the owner of the whole tract of land; of five ninths, as devisee under the will of James Warrell, Sr., his father; one ninth by deed of conveyance from Rebecca Miller and her husband; one ninth by deed from Mrs. Sarah Ann Oliver and her husband; and one ninth by deed from William Warrell and wife. Do these deeds change the rights of the respective parties to this fund? This is the position of Charles Warrell as heretofore stated. These deeds are silent on the question of damages, and notwithstanding this fact, Charles claims that by operation of these deeds, these parties are divested of all interest in the damages and the same are vested in him. This position is in genious, and the argument adduced by the counsel of Charles Warrell is equally ingenious, but in the judgment of the auditor, under the doctrine laid down in a number of Pennsylvania cases, the position is untenable.

Citing and considering McFadden v. Johnson, 72 Pa. 335; Davis v. Railway Co., 114 Pa. 308; Losch's App., 109 Pa. 72; Wadhams v. Railroad Co., 42 Pa. 310; Tenbrooke v. Jahke, 77 Pa. 392; Schuylkill and Susq. Nav. v. Decker, 2 W. 343; Beale v. Penna. R. Co., 86 Pa. 509; the auditor proceeded:

Under the law as laid down in these cases, these deeds to Charles Warrell would not operate to strip the owners of the land, at the time of the location of the road, of their right to the damages and to vest them in Charles. As to the claim under the tortious entry and occupancy of the land by the railroad company, how does this affect or strengthen the claim of Charles? The facts of the case are, that the railroad company did not agree with the owners of the land for compensation, neither did it file a bond as required by law; neither did it take any steps to have these damages ascertained, as prescribed by the law, nor did it comply with the requirements of the law in any particular at the time of the location of the road; but it is equally true that there is no evidence in this case that does show, or tend to show, that James Warrell, Sr., who was living on the tract of land at the time, nor Charles Warrell, nor Mrs. Oliver, nor Mrs. Miller, who were living on the land with their father, nor William Warrell, who was living on another farm of James Warrell, Sr., in the neighborhood, ever made any objection to the railroad company entering, locating its road, and spending its money in the construction of the same. They evidently acquiesced in what was being done, and in the way it was being done. In 1860 the company and the parties in interest inthe land, in an amicable and friendly way, agreed upon a method to ascertain these damages. They waived the statutory method and established a form of their own. These things all tend to show the relation and attitude of the parties toward each other at this time. They are strongly persuasive that the question of trespass was waived, and compensation for the land taken was all that was claimed by the owners of the land, and so much was conceded by the company. And when the award was made of damages, it related back to the appropriation and was intended as a compensation for the land taken. . . . [Under all the proofs, the auditor is of the opinion that the damages belong to the same parties who were entitled in 1855, when the entry was made upon the land, and the same parties who entered into the submission in 1860, and in whose favor the award was made, under that submission; that neither the deeds nor anything done since gave to Charles any right to claim them. Therefore, the conclusion of the auditor is, that the estate of James Warrell, Sr., Mrs. Miller, Mrs. Oliver and William Warrell are entitled to take out of this fund according to their respective rights in the land in 1855 and in 1860, less the costs and other expenses hereafter referred to.]

Passing upon the other controverted question in the case, the auditor, citing Dubois's App., 38 Pa. 231; McKelvy's App., 108 Pa. 615; Patten v. Wilson, 34 Pa. 299 found that Mr. Braden and his associates were entitled to one third of the fund in court, less the costs and expenses of...