Becker v. Lebanon & Myerstown Street Railway Co.

• Decision Date: 23 April 1906
• Docket Number: 199-1905
• Citation: 30 Pa.Super. 546
• Parties: Becker, Appellant, v. Lebanon & Myerstown Street Railway Company
• Court: Pennsylvania Superior Court

30 Pa.Super. 546

Becker, Appellant, v. Lebanon & Myerstown Street Railway Company

No. 199-1905

Superior Court of Pennsylvania

April 23, 1906

Argued October 27, 1905 [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. Lebanon Co.-1900, No 144, on verdict for plaintiff in case of John Adam Becker v Lebanon & Myerstown Street Railway Company.

Trespass for injuries to land caused by the construction of a street railway on a highway. Before Ehrgood, P. J.

The court charged in part as follows:

There are some facts in this case that are not disputed. The plaintiff, Mr. Becker, is the owner of a tract of land of eighteen acres some distance east of Avon, fronting on the south side of the Berks and Dauphin turnpike, a distance of about 650 feet. Upon this tract of land he has a dwelling house, barn and other outbuildings. An orchard is on the premises also. It is limestone land. [The defendant is a street railway company, duly incorporated and constructed and is now operating a street railway on the south side of said turnpike immediately in front of the plaintiff's land. The defendant constructed this railway without any authority of law. They had no right because they had not obtained the consent of Mr. Becker to the construction of the road in front of his premises on the turnpike. They operated the street railway until some time in 1897, when the court here refused to restrain the defendant from operating its road and also refused the prayer of the plaintiff to have the street railway torn up. In other words, the court then decided, not because the street railway company had the right to place the street railway where it placed it, or constructed it, but because the public became interested in it and by reason of the convenience to the public the court there then refused to interfere with the defendant company's road and refused to grant the prayer of the plaintiff in his bill in equity to restrain the defendant from operating its road and also refused to tear up the road. That case was appealed to the Supreme Court. The Supreme Court affirmed the court below and we must now take that to be the settled and final decision in the case. That is, in other words, the street railway company, the defendant in this case, now is there by authority of law. That is, it is permitted to be there and hereafter to operate its road, under the decision of this court, affirmed by the Supreme Court. In other words, it is a permanent occupation now of the plaintiff's land in the turnpike and the defendant from that time on was permitted, and is now permitted, and will hereafter be permitted to operate its street railway in the usual and ordinary manner. So that up to the time when the court decided the equity case, which was finally decided by the Supreme Court, up to that time the defendant was on the plaintiff's land without any authority whatever. The contention between the plaintiff and the defendant in this case differs very materially, and it is because there was such a material difference as to the positions taken by the plaintiff and the defendant that this case probably took as long to try as it did and probably there is no exact parallel of the case, decided in this state, -- at least none has been called to my attention. But as we view the law we are of the opinion, and therefore we so instruct you, that the plaintiff in this case is bound to recover all his damages in one action, that is, in the present action, if he has any damages, for the reason that all his damages that have accrued and that can accrue, can now be ascertained, by reason of the permanency of the construction and operation of this railway.] That the street railway now is there and permitted to be there under a decision of the court, however, does not absolve the defendant company from compensating the plaintiff in damages for such injuries as he has suffered by reason of the depreciation of the value of his property by constructing the road and operating it hereafter, and the important question for you to determine in this case is, what damages has the plaintiff suffered in this case?

Defendant presented these points:

1. There is no evidence that would justify the jury in finding that the street railway company, defendant, acted maliciously in the construction of its street railway along plaintiff's land. Answer: That is affirmed.

2. There is no evidence to justify the jury in finding that the street railway company constructed its railway in any other than a careful and skillful manner, and in such a way as to do as little damage to the plaintiff as possible. Answer: That is also affirmed.

Verdict and judgment for plaintiff for $ 350. Plaintiff appealed.

Errors assigned among others were above instructions, quoting them.

Affirmed.

Bassler Boyer, for appellant. -- The court instructed the jury that the proper and only rule by it to be applied in this case, in assessing the damages, if any, of the plaintiff, was the same as in cases of the lawful exercise of the right of eminent domain. This is error: Elder v. Lykens Valley Coal Co., 157 Pa. 490; Uline v. R. R. Co., 101 N.Y. 98 (4 N.E. 536); Rudolph v. R. R. Co., 186 Pa. 541; Robinson v. Black Diamond Coal Co., 57 Cal. 412; Coal & Iron Co. v. Tucker, 48 Ohio, 41 (26 N.E. 630); Berks & Dauphin Turnpike Road v. Ry. Co., 3 Pa. Dist. 55; Heilman v. Ry. Co., 180 Pa. 627; Pappenheim v. Ry. Co., 128 N.Y. 436 (28 N.E. 518); Penna. R. R. Co.'s App., 93 Pa. 150; Groff's App., 128 Pa. 621.

C. K. Killinger with him S. P. Light, for appellee. -- In an action to recover damages resulting from the location, construction and maintenance of a street railway on a turnpike in a township, without consent of the abutting owner, the measure of damages, in the absence of malice, is the depreciation in the value of the abutting owner's property, resulting from the change of grade and the construction and maintenance of the railway: Thompson v. Traction Co., 181 Pa. 131; Harrisburg v. Crangle, 3 W. & S. 460; Levering v. R. R. Co., 8 W. & S. 459; Pittsburg, etc., R. R. Co. v. Jones, 59 Pa. 433; Pittsburg' etc., R. R. Co. v. Bruce, 102 Pa. 23; Richards v. Buffalo, etc., R. R. Co., 137 Pa. 254; Paterson, etc., R. R. Co. v. Kamlah, 42 N.Y. 93 (6 A. 444).

Before Rice, P. J., Orlady, Porter, Morrison and Henderson, JJ.

OPINION

RICE, J.

There has been much litigation between these parties growing out of the construction and operation of the defendant's railway upon the turnpike in front of plaintiff's premises. It began with a bill in equity praying for an injunction, filed by plaintiff in June, 1893, after the location and construction of the railway was begun, but before any work was done in front of his premises. The bill was dismissed for want of due prosecution, but in 1897, upon appeal to this court, the decree was reversed and the bill reinstated: Becker v. Lebanon & Myerstown St. Ry. Co., 4 Pa.Super. 372. Notwithstanding the pendency of the bill and the anterior protest and objection of the plaintiff, the company went ahead with the work, completed the construction of the railway in front of his premises in July, 1893, and has since operated it as then established. The track was laid about seven feet from the southern boundary of the turnpike, and occupies what was known and used as a " summer road," being a part of the highway that is not macadamized.

After reinstatement of the bill the case came on to be tried under the new equity rules, before Judge McPherson, of the twelfth judicial district specially presiding, and amongst his findings of fact were the following:

" In building the railway the defendant used proper care and skill to conform at this point to the grade of the turnpike so far as it was reasonably practicable, and along plaintiff's land there has been no serious, and scarcely an injurious, change in the grade. At the entrance to the house a planked crossing has been made, and is maintained by the defendant in order to facilitate passage over the track. The rails are of the T pattern, but the space between them and immediately outside has been filled up almost to the level of the rail, so that driving directly across them at the entrance to a field is accompanied with but slight inconvenience. Access to the house and fields has been interfered with very slightly, if at all. There is some risk in coming out of the house or lane, either on foot or by vehicle, because a car may be approaching, and it is necessary, therefore, for the pedestrian or the driver to take precaution by looking up and down the road in order to see whether a car is near at hand. At a point immediately outside of the gate there is no difficulty in seeing for about 1,000 feet in either direction. The existence of the track so near the fence causes occasional inconvenience by making it difficult and unsafe to tie horses in front of the house or elsewhere along the land, or to drive along the fence. Horses must be driven into the yard or the lane, or taken across the turnpike and tied upon the other side. It may be also that the construction of the railway has somewhat injured the plaintiff's land by obstructing the natural surface drainage, so that pools of water now form more easily after a heavy rain and run off with greater slowness. Concerning this, however, we make no specific finding, but assume for the present purpose that to some extent the injury exists.

" The community through which the railway passes is thickly settled and the travel is considerable; cars run twice in every hour between Avon and Myerstown, and the convenience of the public is largely promoted by the existence of this means of travel. The service has been continuously maintained since the road was built, and a large section of the community...