The Borough of Harrisburg against Crangle, 3 Watts & Serg. 460

The opinion of the Court was delivered by Rogers, J. This ejectment is for a Jot containing three or four acres, more or less, and the verdict is for 2 acres 28 perches and fW of a perch. In Smith v. Jenks, (10 Serg. & Rawle 153), a verdict “ that the defendant should have the third part of the 41 acres and 32 perches, neat, and if any overplus, it goes to the plaintiff,” was held too uncertain. In Burdick, v. Norris, (2 Watts 28), a verdict “ for the land claimed in the writ, except 10 acres, including the buildings,” was held bad for uncertainty. And in Stewart v.

Speer, (5 Watts 79), a verdict “ for the plaintiff for 150 acres, part of the land claimed in the writ, and not guilty as to the residue,” was also held bad. So in ejectment for a mortgage, “ he to extinguish all claims of the Miles family,” was held erroneous. The cases cited were decided on the principle that a verdict must be sufficiently certain to enable the court to give judgment, and the sheriff to deliver possession on a habere facias. Green v. Watrous, (17 Serg. & Rawle 400). It is not good, unless it carries certainty on its face, or refers to something by which it may be made certain.

Here it is neither certain on its face, nor can it be reduced to a certainty; and it is impossible for the court to know for what to render judgment, or for the sheriff to ascertain of what portion of three acres he is to put the plaintiff in possession. There is nothing on or dehors the record, which indicates the part recovered, or from what part the portion recovered is to be taken. The sheriff would not know where to begin, nor where tq end; and yet he is required to act at the peril of becoming a trespasser, if he unfortunately, or by mistake, delivered more to the plaintiffs than had been recovered.

The verdict is therefore incurably uncertain; and for this reason the judgment .must be reversed. The 4th

section of the Act to supply the Borough of Harrisburg with water, authorizes the- president and town council of the borough to purchase any land which may be required for the construction of the works. And the 5th

section of the same Act directs the manner of proceeding, when the parties cannot agree upon the compensation to be made to the owner. The Act must be construed in subordination to the 4th

section of the 7th

article of the constitution, which prohibits the Legislature from investing any corporate body or individuals with the privilege of taking private property for public use, without requiring such corporation or individuals to make compensation to the owners of said property, or give adequate security therefor, before such property shall be' taken. It is matter of regret that the course marked out in the Act, in terms which it is impossible to mistake, were not pursued before the borough undertook to take property, and to erect their works.

And the course pursued by the corporation is the more extraordinary, because it is apparent that in no other mode can a title be acquired; and this valuable and useful improvement must continue subject to an adverse claim, at least until the owner of the fee attains the age of 21 years, when he might assent to a sale of the property. There seems to have been *■% no agreement as to the compensation; nor could there be any, ; which would devest the interest of the owner of the fee, whose guardian has no power to dispose of it.

But these obvious considerations seem to have been entirely disregarded; for what reasons, and with what view, it is impossible to discover. The constitution provides, that before property can be taken for > public use, the corporation or individual must make compensation \ to the owner, or give him adequate security. But here, among ) other omissions, it unfortunately appears that no compensation was made, nor was adequate security tendered.

By the will of Henry Crangle, the former owner, a life estate is vested in his wife Elizabeth, with a remainder to his minor son, Henry, and the bond is given and tendered to R. J. Fleming, his guardian. There is no security whatever, adequate or inadequate, to Elizabeth Crangle, owner of the life estate, whose interest comes as much within the purview of the constitution as the owner of the fee simple. It is difficult to assign a reason why one should be protected and the other not; and yet this seems to have escaped the attention of the officers of the borough.

After tendering the bond as above stated, a petition was presented under the Act, and the court appointed viewers, who reported the value of the ground at §1087.50. To the report, exceptions were taken; but, for some unaccountable reason, the court refused to dispose of them. In this the court were in error, for the pendency of the ejectment repdered a decision of exceptions absolutely necessary; nor should the ejectment have been tried until they were passed on, nor until the borough had a fair opportunity of endeavouring to ascertain the value of the land by another proceeding under the Act.

At least, we think, if the report had been set aside, the latter course, under the circumstances, would have been but a fair exercise of the legal discretion of the court. But if, on the contrary, the report had been confirmed, it would have been a defence to the ejectment this far, that the plaintiff would not, in that event, have been entitled to judgment that she recover the possession, although it would be no answer to the action, so as to prevent the plaintiff from recovering damages for the trespass.

An idea seems to have been entertained, at least it has been suggested in the argument, that no proceeding could be had under the 5th

section of the Act, after possession had been taken.

Aiut this we apprehend to be a mistaken view of the constitution; for j although it is provided that, before the property shall be taken / for public use, by a corporate body or individual, compensation ( shall be made to the owner, or adequate security shall be given; ] yet this cannot prevent either party, after an unauthorized taking, i from presenting his petition under the Act, and ascertaining, by v the report of viewers, the value of the land. / Such a proceeding ¿1/ would be perfectly competent, and would vest' theproperty iq, the corporation or individual, as the casS^iñS^Rje^Trae^SiiíjF'M'ect v„ rwiiTBeTthat notwithstanding the title may be afterwards devested, it is a trespass, and they are liable as trespassers to the owner for the unlawful entry.

The intention is to take from the Legisi lature a power frequently exercised, of authorizing an entry .on I lands, without making compensation or giving security to the ' owner. As this is a useful public work of great value, a shadow of doubt should not be permitted to rest on the title.

And for this reason, we would suggest that a final disposition should be made of the proceedings already instituted; that the borough ; should tender separate bonds in an amount entirely adequate— , one to the owner of the life estate, and the other to the owner of 5 the fee; and that afterwards the property should be valued in the manner pointed out by the Act, and that until that be done, the court be requested to stay proceedings on the ejectment. In this way, justice may be done to all parties. The bond should be drawn to Henry Crangle, although the tender must be made to his guardian.

It must be remarked, that notwithstanding this course may be pursued, yet the plaintiff may proceed with the ejectment to recover damages for the trespass. But whether the plaintiff committed a trespass in entering on the land, we do not undertake to decide; for that will depend on the question whether they had a right to enter as the transferee of B. Hale, who claims to be the tenant of Elizabeth Crangle, the owner of the life estate. Judgment reversed, and venire de novo awarded.