City of Philadelphia v. Linnard

• Citation: 97 Pa. 242
• Parties: City of Philadelphia <I>versus</I> Linnard.
• Decision Date: 02 May 1881
• Court: United States State Supreme Court of Pennsylvania

97 Pa. 242

City of Philadelphia versus Linnard.

Supreme Court of Pennsylvania.

February 21 and 22, 1881.

May 2, 1881.

February 21st and 22d 1881.

Before SHARSWOOD, C. J., GORDON, PAXSON, TRUNKEY STERRETT and GREEN, JJ. MERCUR J., absent

Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1881, No. 14.

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C. E. Morgan, Jr., Assistant City Solicitor (with him William Nelson West, City Solicitor), for the plaintiff in error.—1. There is nothing in the Reference Act of May 14th 1874, repugnant to the construction that the Court of Common Pleas has jurisdiction to review the finding of the referee. While there are some expressions, which by implication are capable of a different construction, the tenor of the entire act is against a construction which would oust the jurisdiction and make the referee superior to a judge of the Common Pleas. The object of the act was to enable parties to expedite their suit by waiving a jury trial, and agreeing to a submission to a referee in the same manner as to the court under the Act of April 22d 1874, Pamph. L. 109. Under the latter act, the finding of the judge is subject to review, upon exceptions, by the court sitting in banc. By sect. 3 of the act in question, the referee has the powers "that would belong to the court under a like submission." The decision of the referee "shall in like manner, and to the same extent, be subject to exceptions and writ of error or appeal, as in cases submitted in like manner to the court." Subsequent sections provides that the court in which the suit is pending may, for certain causes, "set aside the agreement for submission;" and that the court shall "after due examination" direct the taxation of the referee's costs; also that the Supreme Court may, "after the decision or judgment of such referee has been by due course of law brought before them," review the judgment. The referee cannot "by due course of law" certify the record to the Supreme Court in response to a writ of error; he cannot award execution or grant a rehearing, because his office is functus officio immediately upon the filing of his decision in the Common Pleas. The judgment then becomes "a judgment of the court," and it would be contrary to due course of law to wrest from the court its right to open, rehear and decide upon the merits of its own judgment. A statute giving a new jurisdiction ought to be construed strictly, and the jurisdiction of the superior courts is not to be ousted in favor of an inferior tribunal by mere implication: Dwarris on Statutes 259. The construction for which we contend renders all parts of the act in question consistent, and is supported by the decision of THAYER, P. J., in Collins v. City, 8 W. N. C. 409. The contrary interpretation deprives the suitor of his right to have a rehearing upon the facts and to have the judges pass upon the questions of law. Such an interpretation would render the act unconstitutional, because the General Assembly is prohibited from "creating other courts to exercise the powers vested by this Constitution in the judges of the Courts of Common Pleas:" Constitution, art. v., sects. 26 and 27.

2. The referee erred in awarding damages, for the following reasons: The injury of which the plaintiff complained was due entirely to her own act. The testimony of all the experts was to the effect that the loss of the five feet is an advantage rather than an injury to the plaintiff's property. In considering the elements of damage and advantage caused by the recession of the plaintiff's building, the referee erred in refusing to regard the appreciation in value by reason of the future recession of the adjoining buildings to the new line. As the finding of the referee on the facts has not been reviewed elsewhere, it is necessary to ask this court to look at the evidence.

Samuel B. Huey, for the defendant in error.—1. A referee, under the Act of 1874, is invested with the full powers of a court and jury to find the facts, to declare the law and file a decision, which thereupon "shall be considered a judgment of the court." This being so, it is to the judgment of the referee alone that the writ of error goes, although nominally entitled as of the court in which the record remains; and such writs have been frequently entertained by this court: Smith v. Ins. Co., 7 W. N. C. 365; MacDowell v. Ackley, 8 Id. 464; Lee v. Keys, 7 Norris 175; Hillbron v. McNichol, Jan. T. 1880, 84. In Collins v. City, 8 W. N. C. 409, the Common Pleas No. 4, of Philadelphia county entertained the jurisdiction on exceptions to a referee's decision under the act in question, but the point was not argued, nor was it assigned for error in the Supreme Court. The construction given to the local Act of April 6th 1869, Pamph. L. 725, and its supplement of January 20th 1870, Pamph. L. 85, which were substantially similar to the act in question, was in accordance with our view: Butterfield v. Lathrop, 21 P. F. Smith 225; Fall Creek Co. v. Smith, Id. 230; Thornton v. Enterprise Ins. Co., Id. 234, 237. The act is not obnoxious to the Constitution, because the submission to a referee is not mandatory, but permissive only, and the parties themselves, by their agreement, created the tribunal.

2. The principles on which the referee based his decision on the measure of damages are supported by authority: Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 410; Railroad Co. v. Stauffer, 10 P. F. Smith 374; Railroad Co. v. Rose, 24 Id. 362; Watson v. Railroad Co., 1 Wright 469.

Mr. Justice TRUNKEY delivered the opinion of the court, May 2d 1881.

In such case as this the rule for measurement of damages is settled by a uniform current of decisions, taking its rise in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 410. The damage is to be estimated as of the date when the injury was complete, and the land-owner had a right to receive compensation; the property to be valued without reference to the owner, or the actual state of his business; the true measure of damages being the difference between the market value of the land as affected by the taking of part for the street, and such value as unaffected. What would Mrs. Linnard's land have sold for at and immediately before the street was widened at its front? What would it have then sold for as affected by widening the street? The difference is the sum to which she is entitled. Many things may be considered as elements of damage, such as inconvenience to occupants of the property caused by recession of the front, and the difficulty of procuring constant tenants. These aid in fixing the value of the property. They are not to be considered with reference to a particular business. Though the property were ruined for its former use, if worth as much or more for another use, the owner suffered no damage for which she can recover. The pivotal inquiry is as to how much the property, as it was when injured, was diminished in value. The lot with its improvements was worth a certain sum; to estimate the loss by referring to more valuable improvements subsequently constructed would be error. For instance, if the new building would rent for more than the old, the new would be a false basis from which to estimate rents or value of the lot as affected by widening the street.

The learned referee appears to have clearly apprehended the rule for measuring damages. We do not think he intended to decide that any elements of damage such as inconvenience to occupants, and decrease in rents, should be considered in other light than as bearing on the question of value of the land at the time of the injury. But he refused to regard "the conjectural appreciation in value by reason of a possible recession of either or both the adjoining buildings at some indefinite time in the future." For this refusal, he rested on P., V. & C. R. R. Co. v. Rose, 24 P. F. F. Smith 362, and Watson v. P. & C. R. R. Co., 1 Wright 469. In the former case, the company had proposed to make improvements by grading and improving the street, unconnected with the finishing of their railway, and it was ruled that the case should be considered without reference to the proposal. To make such improvement, the company was not bound by law or...