Western Pennsylvania Railroad Co. v. Johnston

• Decision Date: 04 January 1869
• Citation: 59 Pa. 290
• Court: Pennsylvania Supreme Court
• Parties: The Western Pennsylvania Railroad Company <I>versus</I> Johnston. Same <I>versus</I> Stewart.

59 Pa. 290

The Western Pennsylvania Railroad Company versus Johnston.

Same versus Stewart.

Supreme Court of Pennsylvania.

October 29, 1868.

January 4, 1869.

October 29th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Writs of error to the Court of Common Pleas of Westmoreland county: No. 149, to October and November Term 1868.

Stewart & Clark (with whom was H. C. Marchand), for plaintiffs in error, referred to Act of February 19th 1849, § 10, Pamph. L. 83, Purd. 838, pl. 12; Dengler v. Kiehner, 1 Harris 41; Bor. of Easton's Appeal, 11 Wright 262; Steiner's Appeal, 3 Casey 316.

E. Cowan and H. P. Laird, for defendants in error.

The opinion of the court was delivered, January 4th 1869, by AGNEW, J.

This is a scire facias quare executio non, issued by James R. Johnston, a landowner, upon a judgment obtained in 1857, against the North Western Railroad Company, now with notice to the Western Pennsylvania Railroad Company, claiming the rights and interests of the North Western Railroad Company in the land appropriated, for damages recovered in a proceeding to assess damages under the 11th section of the General Railroad Act of 1849.

The North Western Railroad Company executed a mortgage to trustees of its whole road and all its corporate rights, franchises and privileges in the year 1856, and before the proceeding and judgment for damages referred to. A sale took place by virtue of proceedings on this mortgage in the year 1859, through which the Western Pennsylvania Railroad Company claims title to all the mortgaged premises by deed from William L. Hirst, Esq., the purchaser at the mortgage sale. The charter of the Western Pennsylvania Railroad, granted in 1860, also vests it with all the powers, privileges and authorities of the North Western Railroad Company, set forth in the act incorporating it, repeals the charter of the North Western Railroad Company totally, and confers on the Western Pennsylvania Railroad Company the right to sell its railroad and all the estate, real and personal, rights, credits and franchises which were of the North Western Railroad Company, providing, however, in a subsequent section, "that all unpaid damages which have accrued to landholders by reason of the original construction of said road shall remain for ever, until paid, a lien upon said road, and in case these cannot be amicably settled, the same shall be determined according to the provisions of the several railroad acts."

It is not stated in the case for the opinion of the court when the railroad company took possession of the lands of the plaintiff, nor does it appear that the company ever entered security for the claim to enable it to take a rightful possession. It is very clear, therefore, that if an entry to use and occupy the ground was ever made, there is nothing in the stated case to enable us to infer an entry, at least before the proceeding to assess the damages. In this view the North Western Railroad had no interest or claim in the land in question upon which the previous mortgage could operate, and the sale under it neither conveyed the subsequently acquired title, nor extinguished the lien, if any, obtained for the damage. This might be a sufficient answer to the argument of the plaintiff in error, but as the case has been put upon the ground of an extinguishment of the lien of the judgment for the damages, by the sale under the mortgage, it will be necessary to examine the nature of the interest acquired by the North Western Railroad in the land appropriated under its charter, and how far it is the subject of the lien of a judgment.

This charter is founded upon the General Railroad Act of 1849. Unlike the laws under which the state constructed her public works, and by virtue of which she took a fee-simple estate in the land, the Act of 1849 confers only a right to survey and locate the route for a railroad, and to enter into, and upon, and occupy all land on which its railroad, depots, &c., may be located, with the proviso, "that before such company shall enter upon or take possession of any such lands or materials, they shall make ample compensation to the owner or owners thereof, or tender adequate security therefor.

The 11th section, which provides for the assessment of the damages, restates substantially the nature of the use or occupancy in the same way. The character of the interest of the corporation in the land so taken and used for railroad purposes is thus clearly set forth, in the law itself, but it has also received judicial recognition in numerous cases. It is an easement merely upon the land, a right of way or passage, with such an occupancy as is necessary to give this right its effect; that is, in constructing, repairing and using the works adapted to the purpose of passage: Lance's Appeal, 5 P. F. Smith 26; Spear v. Allison, 8 Harris 204; Shamokin Valley Railroad Co. v. Livermore, 11 Wright 468; Haldeman v. Pennsylvania Railroad, 14 Wright 436; Mayor of Allegheny v. Ohio and Pennsylvania Railroad, 2 Casey 360-61. This being the nature of the interest acquired by a railroad company in land appropriated for the use of its railroad, a mere easement or right of passage for a public purpose, it is a settled principle in our law that this interest is not the subject of a lien or a sale under execution. Ammant v. Turnpike R. Co., 13 S. & R. 210, the leading case, was decided when there was no remedy, even by sequestration: Ridge Turnpike Co. v. Stoever, 2 W. & S. 548; Leedom v. Plymouth Railroad Co., 5 Id. 265; Susquehanna Canal Co. v. Bonham, 9 Id. 27; Spear v. Allison, 8 Harris 200; Plymouth Railroad Co. v. Colwell, 3 Wright 339; Steiner's Appeal, 3 Casey 315. The interest which is the subject of a lien and execution must be an interest in the land itself: Morrow v. Brenizer, 2 Rawle 188; Thomas v. Simpson, 3 Barr 69. A devise of land to children provided the father shall have the privilege of living thereon during his life, confers no estate on the father subject to judgment and execution: Calhoun v. Jester, 1 Jones 474. So a mere lease for years is not the subject of lien, but may be sold as a chattel: Krause's Appeal, 2 Whart. 398; Dalzell v. Lynch, 4 W. & S. 255: nor is a mere legal title, 1 Harris 478.

From these principles the result is clear that the judgment of James R. Johnston for his damages, was not a lien in the ordinary sense, and his claim was not liable to be divested by the sale on the mortgage. It is a familiar principle that a judicial sale extinguishes liens, not estates or interests of third persons: Catlin v. Robinson, 2 Watts...