Johnston v. Callery

Citations

• 173 Pa. 129
• 33 A. 1036
• 1896 Pa. LEXIS 669

Syllabus

<p>[Marked to he reported.]</p> <p>Railroads — Eminent domain — Location—Servitude.</p> <p>A survey of a railroad on the ground, followed by selection and proper adoption of the line by the directors, makes a fixed and definite location and fastens a servitude upon the property affected thereby, and so takes from the owner and appropriates the land to the use of the corporation.</p> <p>It gives to the latter a standing to settle with and make compensation to the owner for the property thus taken and appropriated to its own use, and, — in case they cannot agree, — to give adequate security for the payment of damages when legally ascertained. Until such compensation is made, or, in lieu thereof, approved security is given, the title of the owner is not divested.</p> <p>Affidavit of defense — Agreement to sell land — Incumbrance—Location of railroad — Vendor and vendee.</p> <p>In an action to recover the purchase money of land which plaintiffs agreed to sell to defendant and convey “by deed of general warranty in fee clear of all encumbrances,” an affidavit of defense is sufficient which avers that prior to the making of the agreement, a railroad company had made a survey upon the property for a branch railroad and that the said survey had been adopted as the location of the branch railroad by the board of directors of the railroad company, and that the said location and appropriation by the railroad company fastened a servitude upon the property.</p> <p>In passing on the sufficiency of an affidavit of defense, the rule is that all unequivocal traverses or denials of material allegations, in support of the claim, and all material allegations of fact contained in the affidavit of defense must be accepted as verity.</p>