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LACY v. EAST BROAD TOP RAILROAD & COAL CO. (01/12/51)

January 12, 1951

LACY
v.
EAST BROAD TOP RAILROAD & COAL CO.



COUNSEL

Samuel H. Stewart, Huntingdon, for appellant.

Robert H. Henderson, Huntingdon, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Reno

[ 168 Pa. Super. Page 352]

RENO, Judge.

Elizabeth Lacy sued the East Broad Top Railroad and Coal Company in ejectment for 193 acres of land in Dublin Township, Huntingdon County, alleging that the railroad had acquired title thereto by eminent domain proceedings and had subsequently abandoned the

[ 168 Pa. Super. Page 353]

    premises. The railroad disclaimed title to all of the described land except 10.42 acres, and concurrently filed preliminary objections to plaintiff's complaint which were sustained by the court below with leave to amend. To plaintiff's amended complaint the railroad renewed its preliminary objections, and they were sustained by the court below which entered final judgment against plaintiff from which she appealed.

Plaintiff's theory is that through the condemnation proceedings the railroad acquired a base or conditional fee in the lands in controversy and that title thereto reverted to her when the railroad terminated its use of the land for railroad purposes. The amended complaint, whose material and relevant facts we accept as true for the purposes of this review, avers that the railroad actually abandoned the right of way which embraces the 10.42 acres in question, and secured a certificate of public convenience from the Pennsylvania Public Utilities Commission authorizing the abandonment. Notwithstanding that the certificate was issued upon the railroad's application, it now contends that the commission is without power to authorize abandonment of a right of way, and that its order merely permitted the railroad to discontinue service over the branch line. This contention was sustained by the court below. Its judgment will be reversed.

The gist of the preliminary objections is that plaintiff has not exhibited a cause of action. All doubts must be resolved against a summary judgment, and such a judgment can be entered only in a clear case. Accordingly, the question for decision is not whether the complaint is so clear in both form and specification as to entitle plaintiff to proceed to trial without amendment, but whether upon the facts averred it shows, as a matter of law, that plaintiff is not entitled to recover. Rhodes v. Terheyden, 272 Pa. 397, 116 A.

[ 168 Pa. Super. Page 354364]

. In determining whether a final judgment should be entered upon preliminary objections the question before the court is not solely whether, under the facts as stated, plaintiff can recover but whether the claim as stated excludes the possibility of recovery under a better statement of the facts. Adler v. Helsel, 344 Pa. 386, 25 A.2d 714.

By condemnation proceedings a railroad acquires a 'base or conditional fee, terminable on the cesser of the use for railroad purposes'. Pennsylvania Schuylkill V. R. Co. v. Reading Paper Mills, 149 Pa. 18, 20, 24 A. 205. The land thus acquired by the railroad is held by it as a public trust, which it may abandon only with the consent of the Commonwealth. A. D. Graham & Co. v. Pennsylvania Turnpike Com.,*fn1 347 Pa. 622, 33 A.2d 22; Conwell v. Philadelphia & R. Ry. Co., 241 Pa. 172, 88 A. 417; Erie & N. E. R. R. Co. v. Casey, 26 Pa. 287. The consent of the Commonwealth may be evidenced by an Act of the General ...


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