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

Citations

• 122 Pa. 613
• 16 A. 20
• 1888 Pa. LEXIS 636

Syllabus

<p>(a) The Iiempfield R. Co., in 18Ó5-7, constructed its roadway upon land of which the plaintiff then owned one ninth, and in 1860, under a submission by all tlie parties in interest, the quantity of the appropriation and the amount of compensation to the landowners were ascertained by an award made.</p> <p>(b) In 1871, the property and franchises of the Hempfield R. Co. became vested in fee in the W. P. & B. R. Co., which thenceforward operated the railroad undisturbed until 1884, when the plaintiff, who then had acquired the entire interest, brought ejectment for the land occupied.</p> <p>(c) The compensation to the landowners, as ascertained by the award of 1860, had never been paid by either company, nor had its payment been secured by bond accepted, or tendered, refused and filed according to law.</p> <p>1. The plaintiff, though owning but one ninth of the land when the entry was made and acquiring eight ninths of it afterward, had the right to maintain the suit.</p> <p>2. The only method by which the defendant company, or its predecessor, could have acquired any right whatever in the laud, was by the payment of compensation to the owners thereof, or by the tender of a bond with sufficient security therefor, according to law.</p> <p>3. No presumption of payment, or of a tender of security, arose in favor of the company from the lapse of time or from the award of 1860; it was bound to show its right affirmatively, or fail in its defence against the ejectment.</p> <p>4. But the award of 1860 and the agreement on which it was founded exhibited an equity which properly reduced the recovery to a conditional judgment, and thus relieved the defendant from a .total loss of its improvements.</p>