Summary
Error to the Common Pleas of Allegheny county.
This ease was tried in the Common Pleas on an appeal from the judgment of a justice of the peace, in a proceeding by Jacob Brosi v. the President and Managers of the Allegheny and Perrysville Turnpike Road Company.
It was a proceeding had under the general Act of 26th of January, 1849, “ regulating turnpike and plank road companies,” (Acts page 10, &c.,) and of the supplement thereto passed on 7th April, 1849. (Acts page 461.)
The sixth section of the Act of January, 1849, renders it lawful for officers, engineers, &c., of the company to enter upon lands through and over which the intended 'road may pass.
In the ninth section it is provided that “ It may be lawful for the president, &c., with their superintendents, engineers, &c., to enter in and upon the lands contiguous and near to which the road shall be made or constructed, first giving notice -of their intentions to the occupiers thereof, and doing as little- damage thereto as possible, and making amends for damages upon a reasonable and equitable agreement by the parties ; or if they cannot agree thereupon, a just and equitable assessment to be made, &c., by three disinterested freeholders, or any two of them, two of whom shall be mutually chosen by the parties, and said two thus chosen, shall choose a third; or if either party, upon due notice, shall neglect or refuse to join in the choice, then to be chosen by a justice of the peace, &c.; and upon the tender of the assessed value, to dig and carry away any timber, stone, sand, earth, or other materials, necessary or suitable for making said road. Provided,” &c.
In the first section of the supplemental Act, it is provided, “ That in all cases where any injury or damage .shall be sustained by any owner or owners of such lands, tenements, and enclosures, as are ‘referred to in the sixth section of the Act to which this is a supplement, the said owner or owners shall be entitled to recover damages for such injury, which damages shall be assessed in the manner prescribed in the ninth section of said Act.”
By the second section it was made the duty of the freeholders to deliver the assessment to any justice of the peace, of the county wherein the land lies, who shall enter judgment thereon, from which judgment either party may appeal within twenty'days from the entry thereof, to the Court of Common Pleas of the proper county, to be determined as other cases of appeal from judgments of justices of the peace.”
In pursuance of a notice on the part of Brosi, to choose persons to assess the damages, if any, that maybe sustained by him by reason of the making and construction of the road of the company, through a certain leasehold property of the said Brosi, persons were appointed who reported $66 in his favor.
An appeal was entered on the part of the company, and on February 25, 1853, a verdict was rendered in favor of the plaintiff for $294.10.
In the counter-statement it was stated, that, on the trial, the plaintiff exhibited a lease for the premises; that it commenced on April 1, 1847, and terminated on April 1, 1853, and that he proved “ that he was in possession by assignment under this lease at the time the road was surveyed, and during the time it was in process of making; also, that he still holds the lease of the property.”
The turnpike company in question was incorporated in 1849.
The material question on the' trial was whether the plaintiff, being a tenant for years, could recover damages from the Company for injury sustained by him in the making of the road.
On the trial several points were proposed on part of the plaintiff. The first was, that plaintiff is an “ owner,” under the Act of Assembly relating to turnpike and plank roads, and as such has a right to recover compensation in this proceeding, for all damage done to his interest in the property. Affirmed.
On part of the company, points as follows were proposed:—
1. That if the evidence satisfy them, that plaintiff had no greater estate than that of a lessee for a term of years, he is not entitled to present any claim, under the act of incorporation of defendants.
4. That if the .road of defendants, was located so that any alteration of the line did not increase the damages that would have been sustained, by reason of such alteration, at the time the lessor obtained his alleged interest in the term or lease, such lessor took his supposed interest subject to said road and its location, and cannot claim damages.
7. That the plaintiff being the only owner appearing on behalf of this tract of land, on which he lives, or of any estate therein, they-are bound to set off the whole increased value of the land, as improved by the road, against the claim here presented.
9. That the tenant’s remedy for the eviction alleged, is against his landlord, who held subject to allowance for roads, &e.
The court negatived the first, point. To the fourth it was charged, there is no evidence that the lessee, the plaintiff, got a lease for less than he would have done, had no such road been in progress or contemplation. There is no evidence that the road, its advantages or disadvantages, was any element or item which entered into the bargain when the lease was made, and if it had been, the defendants were no party to it. There is evidence that the rent in the first lease from the owner, in fee, was $600, and the sub-lessee, the tenant, the plaintiff, after a lapse of time, leased the premises for the same rent. This point assumes by implication what is not proved. If the plaintiff had leased from the defendant, the Court would affirm the point, but as he did not, the Court refuses so to do.
7. The Court refuses to affirm this point, as it is not warranted by the Act of Assembly. The benefits and advantages to the owner of the fee, cannot be set off against disadvantages done and suffered by a lessee, whose lease has only three years to run.
The ninth point was answered negatively. In the opinion of the Court, refusing a new trial, it was observed that the covenant for quiet enjoyment in the lease was to indemnify against a lawful eviction by reason of defect of title; but there was no defect of title in this ease. That the landlord did not covenant against the sovereign power of the state. The lessee could not maintain an action against the landlord for the injury in question, and his only remedy was the one pursued. The case of Thomas v. The Plank Road Company was referred to. See a report of it in 8 Harris 91, &c.
Error was assigned to the answers to the said points.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
