The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-20

payment II was absolutely prohibited from such
entry or occupancy From this IL follows that
there could he no presumption in favor Of the
company. 1t must affmdtively show its right
or fail in its defense"
This case would seem 10 ne sufficient authority
for holding that adverse possession for twenty.
one years would not be bar 10 thc planting
recovery. The point was raised that the pre-.
sumption in the absence Of evidence upon the
subject that the defendant in entering upon and
sppropriating the land in controversy tor its
road did ~ in regular manner and complied
with the law by giving bonds TO the owners;
that there being no evidence in the case TO re-
buts this presumption the action could not lie
maintained. The court below refuses 10 so hold,
| notwithstanding the lapse Of over twcnty.one
years. and such refusal was assigned Tor error;
but the case was affirmed.
CONTROLLING REASONS.
We think the reasoning applied in that case
governs the question now before us and, not
withstanding the cautious language of Mr.. Justice
Dean in Zahn vs.. Ry. 90, we are of the opinion
that the weight ot the authorities We have cited
IL in favor Of the plaintiffs contention, and we
hold that the continuous and uninterrupted pos.
session and use Of the lands in question by the
defendant for more than twcnty.onc years cannot
| prevail against the plaintiffs title
However, counsel for defendant argues that
even IL the authorities sustain this proposition az
| against railroad company they do not apply
| in this case against the defendant turnpike
| company. While they have recedod from their
| position that the defendant is not invested with
| the power Of eminent domain they claim that
| the cases relative to railroads are not in point
| Tor the reason that n railroad company. under
| the act OF 1870 and the other general railroad
| acts. can only acquire easement, not an in.
| forest in land. and the only way IL can acquire
| it is by condemnation proceedings or 10y an
1
for; that a railroad company has not right to
take and hold the land in fec under the gcacral
| railroad laws of pcnnsylyania
| While the turnpike company, under tho act oi
| 1si9. has the right "of purchasing, taking and
| holding to them and their successors and assigns,
| and of selling, transferring and yonycyng in fee
simple. or for any less estate Of such lands tcne.
| ments. hcrcdtamcnts and estate real and pcr.
snna as shall he necessary TO have in the trans.
| action of their work"
| That having this right 10 purchase in fec sim.
| pic, the presumption of a grant where the com
| plny occupies the road for over twcnty.one years
| without evidence Of any arrangement between
| the owner and the company when they take pos
session. is all sufficient evidence TO defeat tire
| plaintfs' claim in this case.
| We do not think this position is we'll taken
The defendant company was incorporated by
| special act of assembly. approved March I. 1876
| P. H. 2SO, Subject 70 sll the provisions ant
| restrictions and entitled to all the privileges anc
rights ri an act entitled AN act regulating turn
pike companies approved Jan. %. lSi9. and tn,
several supplements thereto. 50 far as the sam,
arc not altered. supplied or otherwise provided
for in this act" Tho sixth section ~ the ac
referred TO, Jan. &C. $50 confcrs upon turnpk,
companies tho right nj eminent domain. and th
frSt section of the supplement Of April :, lSl
| (P l.. iGD, provides for the payment of dam
ages. Flank Road Co. vs. Thomas. oS Pa. al.
So we have the turnpike company with tn
| right Of eminent domain and also the right I,
| pur, hasc lands in fee simple: but We think
| railroad company has the same right. Section
. Of the general railroad act. Feb. 10 lSi9 CP
T.. 79), provides that railroad companies organize,
| by act Of assembly passed subsequent thCrct
| "Shall have perpetual SrcCeSSi'n n, with all tn
| privileges franchises and immunitios incident Il
a corporation, and he able 10 sue and he sued
| plead and be implcadcd. in all courts Of rccor
| and elsewhere, and to purchase, receive. have
| hold and enjoy To thCm and their successors
goods chattols and estate. real and personal O
what kind and nature soevcr. and the same from
time to time 10 sell, exchange, mortgage grant
alien. or otherwise dispose o."
IN FPE SIMPLE.
Section 10 of tine same act gives such railroa
companies the right Of eminent domain. "
think the language Of the act Of 1919 is suff
| cicntly plain to give 10 railroad companies tn
l
| right not only 10 acquire lands which may h
| necessary for the construction of their road h
'he power ot 'ihinent DOMAIN nut a'so inc riga
10 a'filr" Such iahaS ny purchase ana we nav
no douht that tney may tdke h'Ie IN Zee simple
Even F" 'ne r'Ght was not cNprcSN given !
| 'n's d''' E'' we 'hlhk th'N Wouu nave sue
rIgnI ny hnpncatlun' II was ncld IN Nl'hol VI
~ u 'o'' u " - ~ 'n"t II Is power Inc
"'h' at common Id" 10 al CORPORATIONS 10 pu'
'"""P l'n"S mm''" r'H'alhco ny th'r 'hartor {
| .E S'"u''' 'nat s"'h power was expressly cor
''H'" ny 'nc,r 'har''t ny 'he tolowlhg lar
g"aG'' houlhg' purchasing ana 'onNefln
s''h r'al estate as inc purposes "' inc corPor'
'.'n may r'P"''' i' t"' dp|,n'e o' express II
StrclonS a corporation has the power to pu
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