Price v. Whelan

Citations

• 262 Pa. 50
• 104 A. 807
• 1918 Pa. LEXIS 586

Syllabus

<p>Contracts — Sales—Beal estate — Agreement to vacate road — Taking of road by railroad — Action for purchase-price — Becital in deed subsequent to suit.</p> <p>1. In an action to recover the balance of the purchase-price of land sold by the plaintiff to the defendant it appeared that the agreement of sale stipulated that plaintiff should secure the vacation of a street which, was located at one end of the property and wholly within its bounds. Plaintiff took steps for the vacation of the road but before its vacation could be accomplished a railroad condemned the road, and subsequently compensated defendant for the loss thereof. Defendant contended he was not liable for the balance of the purchase-price, plaintiff having failed to have the road vacated. The ease was tried without a jury. Meld, (1) the taking for railroad purposes extinguished the easement and (2) its ex-tinguishment, no matter by whom or for what cause, enured to plaintiff’s benefit, and the court properly found in his favor.</p> <p>2. In such case plaintiff’s rights could not be prejudiced by the recitals in the deed from defendant to the' railroad company, executed subsequent to the present suit.</p> <p>3. The fact that the railroad may not occupy the street without the consent of the Public Service Commission and the municipality is immaterial as between plaintiff and defendant.</p> <p>4. Where, land held for one public use is lawfully taken for another inconsistent public use, the former is destroyed.</p>