Wheeling, P. & B. R. Co. v. Warrell

• Citation: 122 Pa. 613,16 A. 20
• Decision Date: 29 October 1888
• Docket Number: 142
• Parties: WHEELING, P. & B.R. CO. v. CHARLES WARRELL
• Court: United States State Supreme Court of Pennsylvania

16 A. 20

122 Pa. 613

WHEELING, P. & B.R. CO. v. CHARLES WARRELL

No. 142

Supreme Court of Pennsylvania

October 29, 1888

Argued October 17, 1888

ERROR TO THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY.

No. 142 October Term 1888, Sup. Ct.; court below, No. 233 November Term 1884, C.P.

On October 11, 1884, a summons in ejectment was issued by Charles Warrell against the Wheeling, Pittsburgh & Baltimore Railroad Co. to recover a strip of land described "containing about 5.22 acres, being in the possession and occupancy of said defendant corporation and used as a railroad track." The defendant pleaded, not guilty.

At the trial on March 21, 1888, it was admitted that the defendant company was in possession of the land. The plaintiff then showed a title in himself at the time the suit was brought and rested.

The defendant then moved for a judgment of compulsory nonsuit for the reasons:

1. The plaintiff has not shown that the acquisition by Charles Warrell of title to the land in controversy antedated the location and construction of the railroad track thereon, and that he has any interest in the damages arising from such location and construction, or holds otherwise than subject to the easement acquired by the railroad company in and by its entry and appropriation.

2. No evidence has been offered to rebut the presumption that the entry of the railroad company was regular and in compliance with law, and was accompanied by payment of, or security for, the damages arising from such entry.

By the court: The plaintiff has shown a legal title to the land in dispute and therefore made a prima facie case; motion refused.

The defendant then put in evidence the act incorporating the Hempfield Railroad Company, and its supplements: Act of May 15, 1850, P.L. (1851) 862; Act of April 12, 1851, P.L. 471, 472. Also certain mortgages executed to secure bonds issued, bearing dates October 11, 1856: Book 2, 139; November 29, 1856: Book 2, 141; February 5, 1857: Book 2, 142; and instruments of date February 5, 1857, and February 26, 1857, evidencing delivery of possession of the road to the mortgage trustees: Book 2, 143, 146. Also deed of Seal et al., trustees, to John King, Jr., dated March 30, 1871; Book T., vol. 4, p. 614, showing a sale of the property and franchises of the road to the grantees, authorized and confirmed by the decree of the Supreme Court. It was admitted that the decree of confirmation provided that said King should hold the road and property sold, "subject to any legal claims or rights which may exist prior to or paramount to the mortgage." The defendant also put in evidence deed of John King, Jr., to the Wheeling, Pittsburgh & Baltimore Railroad Company dated March 7, 1876: Book R., vol. 5, p. 612.

It was then shown that the Hempfield Railroad Company entered upon the land in dispute, perhaps in 1854 or 1855, and constructed a roadway through it in the fall of 1857.

The execution of the papers being admitted, the defendant then offered an agreement under seal between James Warrell, Charles Warrell, Sarah Ann Warrell, William Warrell, and Rebecca Miller and Rev. John Miller, her husband, of the one part, and the Hempfield Railroad Company, of the other part, dated September 29, 1860, providing "that the assessment of damages to the property of the parties of the first part, by the construction of the said railroad through it, be referred to William Herron and Moses Bell, who shall choose an umpire, which three arbitrators shall meet upon the lands of the parties of the first part, shall fix and determine the quantity of said lands appropriated and necessary to be appropriated by the said company, . . . and shall ascertain and determine all damages sustained by the said parties of the first part by reason of the construction of the said railroad, and whose award, or that of a majority of them, shall be final and conclusive without exception; . . . and it is further agreed that a credit of five years be given for the payment of said award," etc.: And in connection therewith, the award of the referees, dated October 24, 1860, fixing and determining the quantity of land appropriated and necessary to be appropriated, at 5.22 acres, according to a plot and diagram annexed and made a part of the award, and ascertaining the amount of damages sustained by the said James Warrell, Charles Warrell, et. al., at $800. The land described in the attached plot was identical with the land described in the writ in this case.

The offer of these writings was objected to by the plaintiff, as incompetent and irrelevant, unless the defendant proposed to follow with evidence that the parties of the first part to the submission had title to the land, and further, that the railroad company, the party of the second part, had either paid the damages liquidated in the award, or had secured the payment thereof according to law.

By the court: Objection overruled, offer admitted, exception.

The case was then closed upon the evidence, when the parties agreed by writing filed to dispense with the jury and to submit the cause to the decision of the court upon the evidence adduced, under the act of April 22, 1874, P.L. 109.

After argument, the court, McILVAINE, P.J., on April 9, 1888, filed the following decision:

I. Facts found.

1. The plaintiff, Charles Warrell, on October 11, 1884, instituted an action of ejectment in this court to recover the possession of a narrow strip of land containing 5.22 acres, which is a part and parcel of a larger tract of land situated in Donegal township, in this county, containing 151 acres and 83 perches. At the time this suit was instituted Charles Warrell, the plaintiff, was the owner in fee of the whole of the 151 acres and 83 perches and was in possession of all of it except the said 5.22 acres. The defendant, a duly incorporated railroad company, was then in possession of the 5.22 acres and was using it was a way, through the plaintiff's 151 acre farm, on which their tracts were laid and over which their trains regularly ran.

2. The Hempfield Railroad Company was incorporated on May 15, 1850, by a special act of assembly of this commonwealth, P.L. 1851, 862, and its charter then granted was amended by an act of assembly, approved April 12, 1851, P.L. 471-472. Under its charter it had authority to construct and operate a railroad through this 151 acre tract of land, subject to the provisions of the general railroad act of February 19, 1849, P.L. 79, in regard to damages. This company in 1855 entered upon this farm and appropriated 5.22 acres as a right of way, and in the years 1855, 1856 and 1857, constructed a road bed thereon, and in 1857 had a railroad in operation from Wheeling, West Va., to Washington, Pa., which ran through the farm and over the right of way, and which has continued in operation ever since, except a short period of time in the latter part of the year 1857.

3. In 1856 and 1857 the said Hempfield Railroad Company executed three mortgages upon their railroad property in trust for its creditors. On March 30, 1871, the trustees named in these mortgages sold the company's property to John King, Jr., and the Supreme Court of Pennsylvania, in confirming said sale, decreed "that the said King should hold the property subject to any legal claims or rights which may exist prior or paramount to the mortgages." John King, Jr., conveyed the road and property to the Wheeling, Pittsburgh & Baltimore Railroad Company, the defendant in this suit, by deed dated March 7, 1876.

4. [Neither the Hempfield Railroad Company, John King, Jr., the defendant company, nor any person for them, has ever either paid or secured the damages done to this 151 acres and 83 perches of land by reason of the location and construction of this railroad through it, to the parties entitled to the same.]

5. In 1855, when the Hempfield Railroad Company first entered upon this 151 acre farm and made an appropriation of the land in dispute, and in 1855, 1856 and 1857, when the road was constructed and put in operation, Charles Warrell, the plaintiff, lived on the farm with his father, but owned in fee only an undivided one ninth thereof; five ninths at that time belonged to James Warrell, Sr., his father, now deceased; one ninth to Sarah Ann Warrell, now Oliver, a sister; one ninth to Rebecca Warrell, now Miller, a sister, and one ninth to William Warrell, a brother. On March 26, 1866, Sarah Ann Oliver and her husband W. L. Oliver, conveyed the undivided one ninth interest of Sarah Ann Oliver in the farm to the plaintiff, Charles Warrell. James Warrell, Sr., died March 6, 1867, leaving a will which was duly probated March 9, 1867, in which he devised to Charles Warrell, the plaintiff, his interest in this 151 acre tract of land. On March 23, 1867, William Warrell conveyed his undivided one ninth interest to Charles Warrell, the plaintiff, and on November 8, 1867, Rebecca Miller and John V. Miller conveyed Rebecca's undivided one ninth to Charles Warrell, the plaintiff, so that at this last named date he became the owner in fee of the whole of this 151 acres and 83 perches.

6. On September 29, 1860, the Hempfield Railroad Company, by its duly authorized agent, James C. Acheson, of the one part, and James Warrell, Sr., Rebecca Miller and her husband, William Warrell, Sarah Ann Warrell, now Oliver, and Charles Warrell the then owners of this 151 acre tract of land, of the other part, agreed to refer the assessment of damages done by the construction of the railroad to three men, which agreement is in the words and figures following: [set out here at length, but abstracted, supra.] This award was accepted by the railroad company and the parties in interest as a final ascertainment of the amount of damages done to this...