Pennsylvania Railroad v. Reichert

Baktol, 0. J., delivered the opinion of the Court. In 1819, the appellee was the owner of a lot of ground in the City of Cumberland, occupied by him as a coal dealer, upon which there was erected a trestle connected by a switch with the Cumberland and Pennsylvania Railroad, by which he received supplies of coal for his customers. The appellant reqiiiring to have a right of way across the lot for its railroad, caused proceedings for condemnation to be instituted, under which a part of the lot was condemned for the use of the appellant.

In constructing the road of the appellant, it was necessary to remove the trestle of the appellee. The inquisition returned by the jury awarded to the appellee the sum of six hundred dollars as damages. The inquisition also contained the following provisions r u And we further find, as a part of this inquisition, and require of the Pennsylvania Railroad Company, that it shall forthwith construct for Caspar Reichert, his heirs and assigns in perpetuity, a trestle with four dumps, or ²⁷⁰ bins along the line laid down on the plat herewith returned marked “A,” of the width of sixteen feet as designated on the plat, and said trestle shall be connected both with the Pennsylvania Railroad and the Cumberland and Pennsylvania Railroad, in such manner that coal can be economically and conveniently brought from both roads.” “And said Pennsylvania Company shall not charge more than one cent per ton for hauling coal from the point of connection between the two railroads to the switch or coal trestle, nor more than it charges other coal dealers in that vicinity, and in case of non-compliance with, or breach of, these conditions, we award fifteen hundred dollars damages to said Caspar Reichert for such breach or npn-compliance therewith.” It appears by the plat that the trestle which the appellant was required to construct for the appellee, was located in part upon the land condemned for the appellant’s use, and in part upon the land óf the appellee not so condemned, that is to say, nine feet of its width upon the former and seven feet upon the latter. • When the inquisition was- returned to the Circuit Court, it was ratified and confirmed by the consent and agreement of the parties. The sum of $600 in money awarded by the jury was paid, but the appellant having faded, as ■alleged, to perform the other conditions prescribed in.the inquisition, the present suit was instituted by the appellee, and resulted in a verdict and judgment in his favor for $1200.

The appeal presents for review the rulings of the Circuit Court upon the pleadings, upon the prayers offered by the' parties respectively, and also upon certain questions of evidence raised by the fast, second and third Mils of exceptions. The sufficiency of the declaration is first to be considered. ²⁷¹ In support of the demurrer thereto, it has been contended, First, that it is uncertain and insufficient, because it does not define the land on which the trestle was to be built, nor state who was the owner of it, nor what land or lines were on “plat A,” referred to in the inquisition. Second. That the trestle being required to be constructed in part on the land of the appellee, not within the lines of condemnation, it was necessary for the appellee to aver that he offered himself ready and willing to permit the appellant to enter upon his land and perform the work required.

Third. That it was not competent for the jury, or within its power and jurisdiction, to require the appellant to construct the trestle, as indicated on the plat, or to perform the other conditions prescribed. We are of opinion that none of these objections were tenable. The declaration sets out at length the proceedings for condemnation, of which “plat A” forms a part, and in alleging the breach by failing to construct the trestle required, describes it “as along the line laid down on the plat returned with the said inquisition marked ‘A’ of the width of sixteen feet as designated on said plat.” The plat referred to shows with certainty the lines of the land condemned, and with equal certainty designates the location of the required trestle, showing that it was to be constructed partly upon the land condemned for the use of the appellant, and partly upon the land of the appellee.

In this respect the declaration contained the requisite precision and certainty; it was not necessary to give any other or more particular description than was furnished by the plat referred to. Second. It is averred in the narr. that “the plaintiff hath hitherto well and truly performed, fulfilled and kept all things on his part and behalf to be performed, fulfilled ²⁷² and kept, according to the tenor and effect, true intent and meaning of said inquisition.” This general averment of performance by the plaintiff is sufficient; it was not necessary to aver specifically that he offered himself ready and willing to permit the defendant to enter upon his. land for the purpose of performing the work. By the terms of the inquisition, the appellant was bound to construct the trestle as located on the plat, a part thereof being located on the land of the appellee, his consenting to the terms of the inquisition imposed an obligation upon him to permit the other party to enter upon his land for that purpose, a general averment of performance of everything on his })art to be done, implies that he consented to such entry on his land.

If on the contrary he had withheld his assent, or prevented the appellant from performing the contract on its part, that was matter which the appellant might have pleaded in defence. Third. While it is well settled that it is the duty of the jury, in condemnation proceedings, to award compensation to the land owner in money, and that they have no power to impose terms and conditions upon the condemning cornpany without its consent; it is equally well settled that where such terms and conditions are prescribed in the inquisition, enter into the estimate of damages, and are assented to by the parties, they are binding and constitute a contract between them. We refer to Mills on Eminent Domain, sec. 112, where the authorities are cited.

It is correctly said by the author “Compensation is ordinarily to be made in money, yet reservations of' rights to owners are favored, and the condemning party may ratify an award a part of which requires certain improvements to be made for the benefit of the owner. The reservation of rights to the owner is only carrying-out the spirit of the law, that the public improvement shall be made with the least damage to private individ ²⁷³ uals. These conditions and reservations cannot be fixed against the will of the parties.” But it has been argued that reservations and conditions of this kind are never binding, except so far as they relate exclusively to the land condemned, as where some improvement is to be made thereon, or some easement therein is reserved to the owner; and as in this case, the structure required to he erected was partly outside of the property condemned, the condition is not binding upon the appellant. There appears to ns to bo nothing in reason to distinguish the present case from the rule'above stated.

The conditions prescribed derive their force entirely from the consent and agreement of the parties. The work required to he done is on their land; so far as it is located outside of the linos of condemnation, it is contiguous thereto, and connected directly with the subject-matter upon which the jury were called to decide, to wit, the compensation to be awarded to the appellee for taking his land, and destroying or removing his structure thereon necessary for the prosecution of his business. In our opinion the matters alleged in the declaration constitute a legal cause of action, and the demurrer thereto was properly overruled. The third and fifth pleas were ruled had on demurrer.

The former alleges as an excuse for the failure of the appellant to connect the switch or trestle of the plaintiff with the Cumberland and Pennsylvania Railroad, that the said Railroad Company refused to permit the appellant to make such connection, although the appellant has ever since, with reasonable diligence, endeavored to effect such connection. And the fifth plea alleges that “the plaintiff failed to obtain the permission of the Cumberland and Pennsylvania Railroad Company to have its tracks connected with said trestle though the defendant requested him so to do.” ²⁷⁴ According to the true construction of the contract, the duty of obtaining the assent of the Cumberland and Pennsylvania Railroad Company to the proposed connection with its road, did not-rest upon the appellee, hut was assumed by the appellant, and therefore the