17. LATERAL RAILROADS CONSTRUCTION UNDER GENERAL RAILROAD LAWS. The general railroad laws do not authorize the construction of a railroad such as is contemplated by the lateral railroad act of May 5, 1832, and the several acts supplementary thereto. These statutes conferred every necessary facility for developing private property and transporting its products, and the field within which these statutes operate should not be invaded. Landowners are protected by safeguards in the provisions of these statutes which do not shield them when public acts are to be promoted, and they have the right to demand the interposition of these safeguards when private property is appropriated for strictly private use. Edgewood Railroad Co.'s Appeal, 79 Pa. St. 257, p. 270. A railroad company organized under the original railroad act, with power to construct lateral branches as necessity may demand, may in the construction of a lateral branch road cross the streets of a city without the city's consent and without submitting plans of construction for approval to the municipal authorities. Northern Coal & Iron Co. v. Wilkesbarre, 218 Pa. St. 269, p. 274. 18. DAMAGES DETERMINATION. Since the passage of this act a jury determines only the amount of the compensation. Brown v. Peterson, 40 Pa. St. 373, p. 376. Horner & Roberts Lateral Railroad, In re, 37 Pa. St. 333, p. 339. Beach Creek R. Co. v. Olanto Coal Co., 17 Pa. Dist. Rep. 30, p. 31. Under this act the viewers are not required to hear testimony as to the damages sustained by the landowner. Lateral Railroad of Bessemer Coke Co., In re, 5 Pa. Dist. Rep., 765. Any evidence is admissible as to the damage which a landowner would sustain by reason of the appropriation of the right of way; but it is not proper to show how the land would be enhanced in value by the construction of the road. Harvey v. Lloyd, 3 Pa. St. 331, p. 341. A landowner is entitled to damages resulting from the taking of his land and this must be assessed by the jury, and in order that the assessment may be just, the mode, manner, and point of connection must be ascertained, as this affects the question of damage and is only required to be determined when necessary to enable the jury to assess damages to the landowner. Beach Creek R. Co. v. Olanto Coal Co., 17 Pa. Dist. Rep. 30, p. 32. 19. APPEAL-RIGHT-QUESTIONS CONSIDERED PRACTICE. Under this act an appeal does not lie to the Supreme Court from a decree of the common pleas that merely overrules the exceptions to a report of the viewers. Hall's Appeal, 56 Pa. St. 238, p. 240. The rule that the policy of the law forbids the withdrawal of an appeal from the award of arbitrators without the written consent of the opposite party is applicable to cases and appeals under the lateral railroad law. Brown v. Corey, 43 Pa. St. 495, p. 503. EXTENDED ΤΟ MINES-CONNECTION WITH IMPROVEMENTSMANNER OF MAKING CONNECTIONS. LAWS 1839-40, P. 196. MARCH 28, 1840. A SUPPLEMENT to the act entitled "An act regulating lateral railroads." SEC. 1. Be it enacted, etc.: That the several provisions of the act entitled "An act regulating lateral railroads," passed May 5, A. D. 1832, shall extend to the counties of Northampton, Lehigh, and Cambria, also to the owner or owners of land, mills, quarries, coal or other mines, limekilns or other real estate in the vicinity of any railroad, canal or slack-water navigation made or to be made hereafter by any company, individuals, or by the State of Pennsylvania: Provided, That if the parties interested can not agree upon the mode, manner, or point of connection with such railroad, canal, or slack-water navigation, the same shall be determined by the jury to be appointed by virtue of the provisions of the first section of the act to which this is a supplement. SEC. 2. That from and after the passage of this act it shall and may be lawful for any person or persons, company or companies, now or hereafter to be incorporated in this Commonwealth, to construct railroads with one or more tracks under the surface over any intervening lands, not exceeding six miles in length, to or from any coal or iron or other mines, quarries, limekilns, or other real estate, and connect the same with any railroad or railroads belonging to any individual or individuals, company or companies, now or hereafter to be incorporated in this State, and also with any highway or public improvement: Provided, That the parties interested shall in cases be subject to the same proceedings required under the act of May 5, A. D. 1832; an act regulatIng lateral railroads: Provided further, That if the parties interested can not agree upon the mode, manner, or point of connexion with such railroad or railroads, the same shall be determined by the jury to be appointed by virtue of the provisions of the first section of the act last aforesaid: Provided, That so much of the act to which this is a supplement as prohibits a writ of error or appeal shall be and the same is hereby repealed. ANNOTATIONS. ACT EXTENDED. 1. PURPOSE AND CONSTRUCTION OF ACT-AMENDATORY EFFECT. PROVEMENTS. PUBLIC IM 3. RIGHT OF WAY-APPROPRIATION-MEASURE OF DAMAGES-PROOF. 5. CONNECTIONS WITH MAIN LINES. 1. PURPOSE AND CONSTRUCTION OF ACT-AMENDATORY EFFECT. The supplemental act of March 28, 1840, extends the provisions of the original act of 1832 to the Counties of Northampton, Lehigh, and Cambria, and also to the owners of quarries, coal or other mines. Shoenberger v. Mulhollan, 8 Pa. St. 134, p. 146. This act is a supplement to the act of May 5, 1832, and it extends the provisions of that act to subterranean railways; and its provisions otherwise are in pari materia with the original act and ought so to be construed. Keeling v. Griffin, 56 Pa. St. 305, p. 306. This act extended the act of May 5, 1832 (P. L. 105), to subterranean railways and otherwise enlarged its general scope. Wadell's Appeal, 84 Pa. St. 90, p. 93. 2. UNDERGROUND ROADS AUTHORIZED -CONNECTIONS WITH PUBLIC IMPROVEMENTS. Under this act incorporated companies and individuals are authorized to construct railroads with one or more tracks "under the surface over any intervening lands, not exceeding six miles in length." The word "over" the court remarks is probably a misprint for "of." Brown v. Corey, 43 Pa. St. 495, p. 503. The act of March 28, 1840, when construed with the original act of May 5, 1832, does not authorize the granting of a right of way for an underground railroad unless it connects with a public improvement, railroad or highway, as only by having such a connection the public would be interested in the lateral railway. Keeling v. Griffin, 56 Pa. St. 305, p. 307. 3. RIGHT OF WAY-APPROPRIATION-MEASURE OF DAMAGES-PROOF. In the appropriation of land for a right of way for a lateral railroad the measure of damages is the injury done to the tract as a whole of whatever components that injury may consist. To enable a jury to assess the damages they are entitled to the benefit of opinions of witnesses of skill and judgment who have had opportunities to learn the value of the particular property, or of similar properties in the neighborhood. Where the appropriation was for an underground right of way and where the proposed road would cross a similar road of the landowner, the jury was entitled to the opinions of witness as to the probable dangers of underground railroads crossing each other at grade, where both must be worked in the darkness of a coal mine. Brown v. Corey, 43 Pa. St. 495, p. 506. The constitution requires the damages to be paid or secured before entry. It treats the landowner as entitled to the quiet enjoyment of all his rights until he is compensated for giving them up. For this reason it becomes necessary to take the opinion of witnesses as to the probable damages, and witnesses may give to the jury their opinions as to such damages and the ground upon which they are based, so that the jury may determine the soundness of the opinion from its basis. Brown v. Corey, 43 Pa. St. 495, p. 506. 4. LESSEES OF MINES HOLD SUBJECT TO RAILROAD RIGHTS. Lessees of coal lands take their rights subject to the right of way and location of an existing lateral railroad over such lands. Such lessees can not set up a defense that the lessors themselves had not made or had waived. Nor can the lessee compel the owner of the railroad to remove the track to suit the convenience of mining. The statute gives the owner of such a railroad the right to move the tracks for the convenience of mining, but does not compel him to do so; and to hold the law to be mandatory would result in the owner being compelled to shift the location of his railroad, thereby involving possibly extensive and expensive changes. Lawrence's Appeal, 78 Pa. St. 365, p. 909. 5. CONNECTIONS WITH MAIN LINES. This act is supplementary to the act of May 5, 1832, and provides that where the parties can not agree upon the mode, manner, or point of connection of a lateral railroad with a main line it may be determined by a jury appointed. The act also provides for appeal upon all questions. Beach Creek R. Co. v. Olanto. Coal Co., 17 Pa. Dist. Rep. 30, p. 31. The charter of the Pennsylvania Railroad Company was subject to all the provisions of the lateral railroad acts which recognize and imply the right of a lateral railroad to connect with railroads having general charters. Continental Coal Co. v. Pennsylvania R. Co., 13 Pa. Dist. Rep. 702, p. 706. EXTENDED TO CANALS. LAWS 1841, 342, P. 347. AN ACT to incorporate the Allegheny MAY 5, 1841. and for other purposes. SEC. 13. All the provisions of the act of May 5, 1832, entitled "An act regulating lateral railroads," and the supplements thereto, are hereby extended to the construction of canals, not exceeding in width the canals of this Commonwealth. ANNOTATIONS. EXTENSION OF ACT. ACT EXTENDED TO CONSTRUCTION OF CANALS. By this act the provisions of the original lateral railroad act of May 5, 1832, was extended to canals. Wadell's Appeal, 84 Pa. St. 90, p. 93. EXTENDED TO ADDITIONAL COUNTIES. LAWS 1842, P. 18. FEBRUARY 12, 1842. A FURTHER SUPPLEMENT to the act entitled "An act regulating lateral railroads." SEC. 1. Be it enacted, etc.: That the several provisions of the act entitled "An act regulating lateral railroads," passed May 5, A. D. 1832, and of the several supplements thereunto, shall extend to the counties of Tioga and Columbia. ANNOTATIONS. LATERAL RAIROADS. SUPPLEMENTARY ACT. The supplementary act of February 12, 1842, extended the provisions of the original act, and is said to be cumulative in the counties of Tioga and Columbia, and has no relation to the other counties of the State. Shoenberger v. Mulhollan, 8 Pa. St. 134, p. 146. LANDINGS FOR COAL LAWS 1843, 359. P. 361. APRIL 24, 1843. AN ACT to incorporate the Butler County Mutual Insurance Company and for other purposes. SEC. 1. Be it enacted, etc.: SEC. 10. That when the owners of any railroad, constituted under an act of this Commonwealth, possess the landing at the termination of the said railroad, where it joins any canal or other navigation, and any lateral railroad shall be constructed to connect with said railroad for the purpose of conveying any mineral or other productions to the said navigation, and the owners of the said landing shall refuse to permit the trade of the said lateral railroads to make use of the said landing, upon the payment of a suitable compensation, it shall be the duty of the court of common pleas of the proper county, upon application of the party aggrieved, to direct the sheriff to summon a jury of five disinterested men from the proper county, who being duly sworn or affirmed, shall examine the premises, and if they shall find that the landings are of sufficient capacity to accommodate the trade of the lateral railroad, in addition to the trade of the main railroad, they shall mark off a portion of the land to be allotted thereto, and fix upon a compensation suitable therefor, either in fee simple or as an annual rent, or a price per ton for the use of the same, and shall make return thereof to the court, who shall thereupon, if the report be approved by them, direct the said landing to be opened to the use of the public, upon the payment of the price assessed by the said jury, an appeal to the superior being allowed as in other cases; and the jury shall be allowed the same compensation as jury upon county roads, to be paid by the party applying for the landing. ANNOTATIONS. WHARVES AND LANDINGS. 1. AMENDATORY ACT-PURPOSE. 2. APPROPRIATION FOR WHARVES AND LANDINGS. 3. APPROPRIATION PROCEEDINGS-DUTY OF VIEWERS. 4. APPEAL FROM REPORT OF VIEWERS-JURY TRIAL-QUESTION DETERMINED. 1. AMENDATORY ACT-PURPOSE. The amendatory act of April 24, 1843, was passed for the purpose of giving owners of lateral railroads landings at the termini of such roads where they join any canal or other navigation. Horner & Roberts Lateral Railroad, In re, 37 Pa. St. 333, p. 336. This act was an enlargement of the authority given under the original act of May 5, 1832 (P. L. 501), and authorized lateral railroads constructed under the original act to acquire landings at the junction of railroads and canals. Wadell's Appeal, 84 Pa. St. 90, p. 93. Whether this act is supplementary to the original act of May 5, 1832, is immaterial, but the two acts are in pari materia. The purpose of both was to enable the owners of mineral lands to obtain access to railroads and navigation and to give them increased facilities for the transportation of the products of their lands to the markets. Horner & Roberts Lateral Railroad, In re, 37 Pa. St. 833, p. 837. |