Warrell v. Wheeling R.

Opinion, Mb. Justice Stebbett:

These are cross-appeals from the decree distributing a fund paid into court under the following circumstances:

In 1855 the Hempfield Railroad Company located its road through a farm jointly owned by James Warrell, Sr., Rebecca *607 Miller, William Warrell, Sarah A. Warrell (now Oliver), and Charles Warrell; and for several years thereafter was engaged in its construction without having tendered a bond, or having-instituted any proceeding for adjustment of the damages. In the meantime no resistance was offered by the landowners, but in September, 1860, they and the railroad company entered into a written agreement by which the “ assessment of damages to the property of the parties of the first part, by the construction of the railroad through it,” was referred to parties therein named, to “fix and determine the quantity of said lands appropriated and necessary to be appropriated by the said company, .... ascertain and determine all damages sustained by the parties of the first part by reason of the construction of said railroad,” etc., and agreeing that the award of said referees, “ or that of a majority of them, shall be final and conclusive, without exception, and upon which judgment shall be entered by the prothonotary of said court in the proceeding or suit of said parties of the first part.”

The referees, having heard the parties and examined the premises, found that the quantity of land appropriated by the company, a plot of -which was attached to their report, was 5.22 acres, valued at $80 per acre, and that the said landowners “ have sustained damages, in the aggregate, which, including the value of said lands and the cost of building the requisite extra fencing along the side of said road, amount to the sum of eight hundred dollars; ” which sum they awarded to the “ owners of said land as and for all damages caused thereto by the said railroad.” That award was accepted by the company and the parties in interest as a final ascertainment of the damages, etc., but no part thereof was ever paid or otherwise secured.

Afterwards, in 1866 and 1867, Charles Warrell, by devise and conveyances, acquired the respective interests of his co-tenants in the farm, but neither the will nor deeds of conveyance under which he became sole owner contained any reference to the damages aforesaid, nor did either of the parties otherwise transfer to him their respective interests in the award. In 1881, Charles Warrell, being thus invested with the legal title to the farm, brought an action of ejectment for the strip of 5.22 acres of land mentioned in the award, against the Wheeling, *608 Pittsburgh & Baltimore Railroad Company, which, in the mean time, had succeeded to the property, rights, and franchises of the Hempfield Railroad Company. That action was so proceeded in that a conditional judgment was entered in favor of the plaintiff, Charles Warrell, for the strip of land in controversy, to be released on payment into court by the company, within 60 days, of the amount of the award, with interest thereon, amounting' in all to $2,118, to be distributed by the court to the parties entitled thereto. That judgment having been affirmed by this court: 122 Pa. 613 , the money was accordingly paid into the court below, and thereupon an auditor was appointed to distribute the same. Before bringing the action of ejectment, Charles Warrell agreed with his attorney, Mr. Braden, that the latter should have, as compensation for his services, one third of whatever might be recovered.

The facts, of which the foregoing is merely an outline, are fully presented in the auditor’s report, and constitute the basis of the decree appealed from. Mr. Braden having conducted the suit against the railroad company to a successful termination, appeared before the auditor, and claimed, for himself and those associated with him in the case, one third of the fund as compensation for their professional services. That, together with a small bill for printing the paper-book in the case, was resisted by all the parties in interest except Charles Warrell. Both claims were allowed, and from that branch of the decree the appeal of Sarah A. Oliver et al., No 224 October term 1889, was taken. The residue of the fund, less costs of audit, was claimed by Charles Warrell as sole owner of the legal title on which the action of ejectment was grounded; but the auditor and court below refused to sustain his contention, and distributed it among those who jointly owned the land, when the submission and award were made, according to their respective interests in the land at that time. From that part of the decree Charles Warrell appealed.

The decree thus complained of is so amply vindicated in the report of the learned auditor and opinion of the court below that, for reasons there given, we might well dismiss both appeals •without further comment. There can be no question as to the character of the fund in controversy. It represents .the damages sustained by the joint owners of the farm by the location *609 and construction of tlie railroad through the same. Their claim, as recognized in the submission, was for those damages, and nothing else, and the sum awarded to them by the referees, as tenante in common of the land, is specified “ as and for all damages caused thereto by said railroad.” Charles Warrell, as one of the tenants in common,.had, and still has, an interest in the award and proceeds thereof, corresponding with his interest in the farm at the time the damages were sustained. He never had any more. He acquired no further interest in the award either by the devise and conveyances, under which in 1866 and 1867 he became sole owner of the farm, or by any other mode of transfer. In availing himself of the legal title, as a means of enforcing payment of the award, he acted in his own right as to his joint interest therein; but, as to the respective interests of his former co-tenants, he acted as their agent and in trust for them.

In McFadden v. Johnson, 72 Pa. 885 , the owner of land through which a railroad was constructed sold the same without receiving any compensation for damages done by the construction of the road, or reserving her right thereto. Afterwards the then owner of the land effected a settlement with the company then in possession of the road for the damages done to the land before the sale, and received the money. In an action by the vendor against the person who received the damages, it was held that plaintiff was entitled to recover. Mr. Justice Agne'w, delivering the opinion of this court, said: “ The damages for the injury done to the land while Mrs. McFadden was the owner, were clearly a personal claim, which did not run with the land. If the company entered unlawfully, the entry and work done upon the land were a trespass, and the right to recover damages could be enforced by a common-law action. If the entry were lawful, the company acquired a right for which the damages (so called) are a compensation, enforceable in the statutory mode given to assess it: McClinton v. Rail road Co., 66 Pa. 409 In either case, quacumque via data, therefore, the right is personal, belonging to the owner of the land when the entry and injury took place, and could pass only by her assignment.”

Those who were joint owners of the farm when the railroad was located and constructed by the original company had, then, *610 a right to the damages which were afterwards - liquidated, and finally settled by the award. If authority for a proposition so manifestly just and reasonable as that be needed, it may be found in Lawrence’s App., 78 Pa. 365 ; Davis v. Railway Co., 114 Pa. 308 , and other cases. In the case last cited, it was held that where a railroad company permanently locates its road and enters upon the land for the purpose of constructing it, without objection from the owner of the land, that is an apr propriation of the land for the purposes of the road, and vests the right to damages in the landowner, though he lease it to another before a bond as security for damages is filed, and before the road is constructed. As already observed, it does not appear that anything was done by either of the appellees, subsequently to the award, that could have the effect of divesting their respective interests in the damages represented by that instrument, or of transferring the same to appellant. In this proceeding we have nothing to do with the question 'of appellant’s authority to enforce payment of the award by an action of ejectment. That is res judicata. It was rightly and definitively settled in Wheeling etc. Railroad Co. v. Warrell, 122 Pa. 616 . The assignments of error in the first appeal are not sustained.

The. position assumed by appellants in the second appeal, that they are respectively entitled to their full shares of the gross fund for distribution, without contributing anything whatever to the necessary expenses of the litigation by which it was realized and brought into court, is neither just nor equitable. Invested, as he was, with the legal title to the strip of land occupied by the railroad company, Charles Warrell had an undoubted right to maintain the action of ejectment which resulted in enforcing payment of the award for damages, in which appellants and he were jointly interested. As was said by this court when that case was here, he “ was the proper person to enforce the award.” In fact he was made so by appellants themselves in conveying to him the legal title on which the action was grounded. That suit was vigorously contested in the court below, and then in this court. There is no question as to the necessity for the services of able and experienced counsel at every stage of the litigation. It was only when further resistance would have been disastrous to the railroad *611 company that it submitted to the final judgment, and paid the money into court. The fund is there for distribution on equitable principles, and there appears to be no good reason why appellants should not contribute to the necessary and reasonable expenses of litigation, including counsel fees and cost of printing the paper-book. It is not even suggested that the printing or services of counsel were unnecessary, or that the sum allowed for either is unreasonable. On the contrary, the broad ground is assumed by appellants that they are entitled to enjoy the fruits of the litigation without contributing anything whatever to the expenses thereof. This is as unreasonable as it is unjust. The expenses in question should be paid out of the fund. The court below had every opportunity of forming a correct conclusion as to the reasonableness of th$ claims presented by the appellees, especially the claim for professional services, and doubtless it was satisfied as to both. There appears to be nothing to have warranted a different conclusion. We are of opinion that the claims were rightly allowed. The bill for printing was no doubt correct, and, on the score of a quantum meruit, Mr. Braden and his associates were entitled to the sum that was awarded to them. We find no error in the record that would warrant a reversal of the decree.

Decree affirmed, and both appeals dismissed, at the costs of the respective appellants.