Cake v. Philadelphia & Erie Railroad

1. No right of appeal, from an award of viewers to appraise damages, was given to either party, under the charter of the Philadelphia and Erie Railroad Company and its supplements. 2. It was not until the Act of April 14th 1864, that the legislature authorized the taking of a public street or alley for the use of the ¡Philadelphia and Erie Railroad Company, and made provision for damages resulting therefrom. 3. The word “property,” in the Act of July 22d 1864, does not include public highways.

Error to the Court of Common Pleas of Northumberland county: Of May Term 1878, No. 192. The proceedings arose as follows: Joseph W. Cake was the owner of a tract of land adjoining the town of Sunbury, and laid out a portion of it in town lots and alleys, and had a draft of the same made on which the streets were named. A number of these lots were sold, and Ilenry L. Cake, the plaintiff, became the purchaser of thirteen, which constituted a square, bounded on the east by an alley twenty-five feet wide. Each lot was twenty-five feet wide, and extended back from Railroad avenue one hundred and twenty-five feet to this alley. In 1866 the plaintiff built on this square five blocks of two houses each, fronting on Railroad avenue. In 1870 the Philadelphia and Erie Railroad Company needing an additional siding, constructed it upon and along the twenty-five feet alley, by making an embankment upon it from four to seven feet high, where the east side of the square owned by the plaintiff fronts upon the alley, and thereby completely obstructed the said alley and prevented all passage along it, by dr to the said lots. Before and ever since the defendant constructed this embankment and siding, the said alley and the plaintiff’s square of lots were in the borough of Sunbury. By the Act of April 3d 1837, Pamph. L. 170, incorporating the defendant company, they were required to construct their railroad so as not to impede or obstruct the free use and passage of any public road which might cross or enter the same; but in case the railroad should cross or interfere with any existing public road, then the railroad was required to make a good and sufficient causeway or bridge. By sect. 5 of the supplement to this act, which was enacted March 27th 1852, the company obtained the right to change the site of a public road, where necessary, and was required to reconstruct the same in as perfect a manner as the original road, and to pay the damages resulting from the change of location. By the Act of April 14th 1864, the tenth and eleventh sections of the General Railroad Law of February 19th 1849, were extended to this company, whereby it was allowed to occupy a street or alley, provided it made compensation to owners of adjoining property for damages occasioned by excavations or embankments. The Act of July 22d 1864, provided: “That it shall and may be lawful for the Philadelphia and Erie Railroad Company to take and appropriate such property, however occupied, as they may deem expedient for the use and construction of depots, sidings, turn-outs, water-ways, work-shops and other improvements along or immediately connected with their line, that may in their opinion be needful for the prosecution of the business to be done on the said Philadelphia and Erie Railroad. Provided always, that the full amount to be paid for the property so taken shall be assessed, paid for or secured, as provided by the charter of the Philadelphia and Erie Railroad Company, and all laws inconsistent herewith be and the same are hereby repealed.” Under the provisions of the Act of April 14th 1864, viewers were appointed to assess the damages to the property of Cake, who awarded him $5600. The company appealed, and the plaintiff took a rule to show cause why the appeal should not be stricken off, contending that it should be, “because neither of the provisions of the.Act of Assembly, approved the 3d day of April 1837, entitled ‘An Act to incorporate the Sunbury and Erie and Pittsburgh and Susquehanna Railroad Companies,’ in Pamph. L. 1836, 1837, pp. 170-185, by virtue of which the said The Philadelphia and Erie Railroad Company was incorporated, nor of any supplements thereto subsequently passed, nor of the tenth and eleventh sections of the Act of Assembly, approved the 19th day of February 1849, entitled ‘ An Act regulating railroads,’ which were extended’to the said The Philadelphia and Erie Railroad Company by an Act of Assembly approved the 14th day of April 1864, entitled ‘An Act relating to the Philadelphia and-Erie Railroad,’ in Pamph. L. 1864, p. 414, nor of any other Act of Assembly of the Commonwealth of Pennsylvania, give an appeal from the report of viewers appointed to assess damages arising from the construction of the railroad of the said The Philadelphia and Erie Railroad Company, and therefore because the .court-has no jurisdiction of the said appeal from the said report of the said viewers.” This rule the court discharged, and at the trial the company contended that it had never accepted the provisions of the Act of April 14th 1864, and that if it had, said act was repealed by the Act of July 22d 1864. In the general charge, the court, Rockefeller, P. J., inter alia, said: “ It (Act of April 14th 1864) is a special act relating to the Philadelphia and Erie Railroad Company, aind, in my judgment, the weight of reason, and certainly the weight of authority, is that the legislature had no power to enact it without the consent or assent of the railroad company. If the act had been accepted or assented to by the company it would be binding upon them, and if there was any evidence in the case from which you could infer that the company ever assented to the passage of this law, or accepted its provisions, then the court would permit you to make such an inference. I do not know of any evidence in the case whatever, that has a tendency to show that the railroad company ever assented or consented to the passage of this act, or ever accepted any of its provisions after it was passed, and the officers of the company for the time being, whose depositions you heard read, swear that this act never was accepted by the railroad company. * * * “ This being our view of this case, we instruct you, as a matter of law, that your verdict must be in favor of the defendant.” After a verdict in accordance with this instruction, the appellant took this writ, assigning for error, inter alia, the refusal to strike off the appeal and the portion of the charge noted above.