Green v. Pennsylvania Railroad

Ureter, J., delivered the opinion of the Court. The purpose of thiaction of ejectment, is to dispossess the defendant railroad companies from a small portion of the ground acquired by condemnation, for the construction of their i'ailroad, from the plaintiff’s predecessor in the ownership of the land of which the condemned area originally formed a part. The occasion of the suit is the maintenance by the defendants, since the year 1912, of a side track extending a few feet into the space formerly occupied hy the slope of an excavation made in the grading of the railroad. It is contended hy the plaintiff that the ground forming and supporting the slope was acquired solely for the proper grading and protection of the defendants’ right of way, and cannot rightfully’be used for track purposes.

The use of ground, on which a part of the slope previously stood, for the construction of the siding referred to, is said to he such a misuser as to constitute an abandonment to that extent of the easement condemned, and to entitle the plaintiff to recover possession of the land so used by a suit in ejectment. The appeal is from a judgment on a directed verdict for the defendants. By the inquisition in the condemnation proceedings, from which the nature and extent of the contested interest of the defendants must he ascertained, the land owner was awarded damages for the “use and occupation” of a parcel of land described hy metes and hounds and as containing thirty-nine one-hundredths of an acre, which includes the ground in’controversy, “for the construction of a, railroad” by the condemning corporation, to whose rights the defendants have succeeded. The land thus condemned was further described in the inquisition as being “at every point thirty-three feet distant from the center line of said railroad as now' located and ¹³⁰ in addition as much more land asi is occupied by the slope of any embankment or excavation extending on either side beyond said width of sixty-six feet, said slope not to exceed one foot and one-half horizontal for each foot vertical in the case of excavations and one foot and one-half horizontal for each foot vertical in the case of embankments.” The plat annexed to the inquisition, and made a part of it by express reference, shows that the area condemned has a width of forty-four feet from the center line of the railroad right of way.

This width includes an allowance of eleven feet for the slope of the cut at the point in dispute. The earth forming the slope has been removed for a space about six feet wide next to the railroad, and the siding in question is on a part of the ground thus leveled. The portion of the slope left in position is supported by a “crib work” built of old cross-ties. It is only at -and near the end of the strip' of condemned land described in the inquisition that the siding is laid upon a part of the ground formerly occupied by the slope.

In diverging from the main system of tracks, the siding passes over a section of the orginal slope area about fifteen feet in length and having a maximum width of about three feet. Between the siding and the face of the slope now buttressed with cross-ties, there is a level and vacant space three and a half feet wide. From the face of the existing slope to the o-uter limit of the land condemned the distance is four and a half feet. If this suit were to succeed, it would result in the ejection of the defendants from the small piece of ground we have indicated, while their easement in the land by which it is completely surrounded,, within the limits of the condemnation, would be left undisturbed.

It is not suggested that the theory of abandonment by misuser, upon which the suit is sought to be maintained, could apply to any part of the ground except that upon which the siding has been constructed. The substitution of the crib-work for a portion of the slope is, of course, entirely consistent with the purposes of the