Willock v. Beaver Valley R. Co.

• Decision Date: 04 January 1909
• Docket Number: 221
• Citation: 222 Pa. 590,72 A. 237
• Parties: Willock to use v. Beaver Valley Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

72 A. 237

222 Pa. 590

Willock to use v. Beaver Valley Railroad Company, Appellant

No. 221

Supreme Court of Pennsylvania

January 4, 1909

Argued October 14, 1908

Appeal, No. 221, Oct. T., 1908, by defendant, from judgment of C.P. Beaver Co., March T., 1907, No. 223, on verdict for plaintiff in case of John P. Willock to use of W.S. Willock v. Beaver Valley Railroad Company. Reversed.

Trespass to recover injuries to land. Before PRATHER, P.J., specially presiding.

The facts are stated in the opinion of the Supreme Court.

Defendant presented these points:

4. If the jury find from the evidence that the fee to the whole ground upon which the railroad is constructed in front of the plaintiff's property does not belong to plaintiff, but is the property of the abutting owners on the south or opposite side of the street, then there is no additional servitude imposed on plaintiff's land, and the verdict should be in favor of the defendant. Answer: This point is refused. We have instructed you that the plaintiff is entitled to access to his property, whether he owns further into the street than his curb line or not; and if that access to his property has been interfered with by the construction and operation of the defendant's railroad, you have a right to consider that in making up your verdict. [4]

6. There can be no recovery by the plaintiff in this case from any damages from smoke, dust, noise, or other inconvenience caused by the lawful operation of the defendant's railway. Answer: This point is refused. If you find that the plaintiff has no fee in the street except to his curb line you might, under the evidence, still find whether or not the access to his property has been interfered with, and has thereby affected the value of his property, and if so, you will determine how that affects the property, and the extent thereof. [9]

[We say to you, gentlemen of the jury, as matter of law, that it is immaterial when you have found, if you so find, that the access to this property has been interfered with, abridged and that it is with increased difficulty that the plaintiff has access to his property -- we say to you, when you have found that fact, that it is immaterial whether his property line is twenty feet, thirty feet or forty feet from the curb. The plaintiff has a right to access to the street, and it is a presumption of law that the street as located there, and marked by curbs, is on the ground on which it was originally laid out and designed. And whether it is or is not, the plaintiff is entitled to the road and street privileges, and if you find that access by him to his property has been damaged or interfered with by reason of the construction and operation of the defendant's railroad, you will consider, in passing on that branch of the case, that his right of property is to the curb.]

[If the plaintiff owns a right in the soil to the middle of the street, then he has a right here to be compensated, taking into consideration the testimony here, for what noise, dust and inconvenience he experiences by reason of the construction and operation of the railroad; but if you do not find, under this testimony, that his rights go further than the curb line, you would have no right to consider the matter of noise, or dust, or smoke as affecting his property; but you would still inquire how much, if any, his property has been damaged in its general market value, as affected by the construction of this railroad, applying that construction and operation to the access to his property; and by access we do not mean a line of travel, such as might be affected by a line of an alley; he has a right to have access at any point along his property for the purposes for which it is adapted; that may be by a vehicle, or it may be by a private walk or pathway; and it is no entrance at any particular point, if it is a pathway.]

Verdict and judgment for plaintiff for $3,797.50. Defendant appealed.

Errors assigned were certain rulings on evidence; (4, 5, 9, 10) above instructions, quoting them.

Judgment reversed and a venire facias de novo awarded.

George B. Gordon, of Gordon & Smith, with him John M. Buchanan & James L. Hogan, for appellant. -- The plaintiff not being the owner of the ground upon which the defendant's railroad is constructed, and the same having been built pursuant to grants from the state, the borough and the owners of the fee, the plaintiff is not entitled to recover: Paul v. Carver, 26 Pa. 223; Neely v. Philadelphia, 212 Pa. 551; Beck v. R.R. Co., 11 Pa. C.C. Rep. 363; Mayor, etc., of Allegheny v. R.R. Co., 26 Pa. 355; Johns v. Davidson, 16 Pa. 512; Dunham v. Williams, 37 N.Y. 251; Chicago v. Rumsey, 87 Ill. 348; New Castle & Franklin R.R. Co. v. McChesney, 85 Pa. 522; Philadelphia & Trenton R.R. Co., 6 Wharton, 25; Danville, etc., R.R. Co. v. Com., 73 Pa. 29; Jones v. R.R. Co., 151 Pa. 30; Penna. R.R. Co. v. Duncan, 111 Pa. 352; Penna. R.R. Co. v. Lippincott, 116 Pa. 472; Penna. R.R. Co. v. Marchant, 119 Pa. 541; North Penna. R.R. Co. v. Traction Co., 205 Pa. 579; Cobb v. Warren St. Ry. Co., 218 Pa. 366.

The court's instructions as to the measure of damage were incorrect, and his rulings on admissions of evidence on the part of the plaintiff relating thereto: Jones v. R.R. Co., 151 Pa. 30.

Robert W. Darragh, with him J. Rankin Martin, for appellee. -- The common grantor of both the street and lot in question, having at one time owned all the land in fee, the legal effect of plaintiff's deed, being bounded on the south by the street in question, was to vest in him the fee in the land to the center of the street, subject, however, only to the rights of the public to use it for street purposes: Robinson v. Myers, 67 Pa. 9; Transue v. Sell, 105 Pa. 604.

The evidence clearly shows that the borough of Beaver never in any way recognized this street as being of any other that 100 feet in width, and the fact that it has been used as a street to the width of 100 feet for over 100 years, is better evidence of the location of the street than any mere paper location: Commonwealth v. Marshall, 137 Pa. 170; Hancock v. Borough of Wyoming, 148 Pa. 635; Penna. Schuylkill Val. R.R. Co. v. Walsh, 124 Pa. 544.

In determining a question of damage to a property so located, it is proper to submit to the jury evidence as to what extent the plaintiff's property may be damaged by reason thereof, which submission was properly and carefully given to the jury in this case: Penna. S.V.R.R. Co. v. Ziemer, 124 Pa. 560; Penna. R.R. Co. v. Duncan, 129 Pa. 181; Pittsburg Junction R.R. Co. v. McCutcheon, 18 W.N.C. 527; Shano v. Bridge Co., 189 Pa. 245.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE ELKIN:

There can be no proper disposition of this case without a determination of the question of title to the fee in Fifth street. If appellee, an abutting property owner, has no title to the fee in the street upon which the railroad is constructed, he cannot recover compensation in the nature of damages for property taken, injured or destroyed, because under such circumstances he would not suffer a legal injury. The first contention of learned counsel for appellant is that the town of Beaver was laid out under legislative authority on lands belonging to the state, and the streets and alleys having thus been dedicated to public use, the subsequent conveyance of lots to private owners did not divest the title of the commonwealth to the streets and alleys. This position is predicated on the theory that the commonwealth holds the streets as trustee for the public, and is not governed by the same rule as an individual grantor. A grant by the commonwealth is taken most strongly against the grantee, while a grant by an individual is taken most strongly against the grantor. This is the general rule, but in our view of the present case it has no application. The town of Beaver was not laid out by the exercise of the sovereign power of the state, but by express legislative authority, directing the proper officers of the commonwealth the owner of the soil, to lay out the same for the purpose of sale to private purchasers. The purpose was to encourage the building of a town at that point. The officers of the commonwealth had no power to act in the premises except such as was conferred by the legislature, and this power when conferred authorized the laying out of a town and provided for the sale of lots. If the plan of lots in the present case had been laid out by an individual in precisely the same manner as the commonwealth has done, and lots had been sold with streets as boundaries, the title of the fee to the center of the streets would have passed to the purchasers. This is the rule of our cases from Paul v. Carver, 26 Pa. 223, to Neely v. Phila., 212 Pa. 551. There is no sufficient reason why the same rule should not apply to the commonwealth under the facts of the case at bar. The reasonable construction to be placed upon the acts of assembly authorizing the laying out of the town and the sale of lots in this case, and of the acts of the officers entrusted with the execution of these powers, is that the...