Appeal, No. 135, Jan. T., 1960, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1958, No. 1816, in case of John Thompson Chew et al. v. Commonwealth of Pennsylvania. Judgment reversed; reargument refused June 30, 1960.
Frederick H. Spotts, with him John B. H. Donaldson, Thomson F. Edwards, and Lippincott & Donaldson, and Pepper, Hamilton & Sheetz, for appellants.
Frank E. Roda, with him John R. Rezzolla, and Anne X. Alpern, Attorney General, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
On July 8, 1905, the Philadelphia Western Railway Company condemned for railroad purposes in Delaware and Chester Counties a strip of land 5487.2 feet long and 90 to 150 feet wide, comprising 14.27 acres. The board of viewers awarded damages to the owners of the land, Mary J. B. Chew and Martha Brown, in the sum of $73,221.33. By virtue of these proceedings the railroad company acquired a fee simple defeasible in the land, that is, a title subject to defeat in the event the railroad company abandoned the land as a railroad right of way. By the same token, the landowners acquired, or retained, a possibility of reverter which would ripen into a renewed fee simple ownership if and when the defeasible title in the company terminated.
The Philadelphia Western Railway Company and its successor by merger, the Philadelphia Suburban Transportation Company, operated trains over the land (this being its Strafford-Villanova Branch) without any evident change of policy until April 4, 1955, when the present company, through its directors, adopted the following Resolution: "RESOLVED, That the officers of this Company are hereby authorized to make proper
application and do all things necessary to substitute bus service for Strafford Rail Division service between Villanova Junction and the Strafford Terminus..." (Emphasis supplied)
Acting on this resolution, the officers of the Philadelphia Suburban Transporation Company applied, in June, 1955, to the Public Utility Commission "for approval of the abandonment of street railway service and facilities on that portion of its 69th Street Terminal-Strafford line beginning at the Villanova Junction switch points... and extending northwestwardly on private right of way, a distance of approximately 3.74 miles to its westerly terminus at Strafford..." (Emphasis supplied)
On September 7 and September 22, 1955, the Public Utility Commission held hearings on this application but before it could render its decision, the Commonwealth of Pennsylvania condemned the property for highway purposes. On February 6, 1956, the commission approved the application of the railroad company, and, in consequence of the commission's order in the matter, the railroad ran its last train on March 22, 1956.
Had it not been for the condemnation by the Commonwealth of the land on November 25, 1955, the title to the controverted property would, on March 22, 1956, by operation of the law of reverter, have vested in the plaintiffs here, successors of Mary J. B. Chew and Martha Brown, the original landowners. After the condemnation, the Commonwealth paid to the ...