Consolidated Ice Co. v. Pennsylvania R. Co.

• Decision Date: 19 April 1909
• Docket Number: 2
• Citation: 73 A. 937,224 Pa. 487
• Parties: Consolidated Ice Company v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

73 A. 937

Consolidated Ice Company v. Pennsylvania Railroad Company, Appellant

224 Pa. 487

No. 2

Supreme Court of Pennsylvania

April 19, 1909

Argued March 2, 1909

Appeal, No. 2, Oct. T., 1909, by defendant, from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1905, No. 95, on verdict for plaintiff in case of Consolidated Ice Company v Pennsylvania Railroad Company. Reversed.

Appeal from award of jury of view. Before EVANS, J.

The defendant presented the following points:

1. As to the value of the ice plant and machinery after removal the measure of damages, where an opportunity of removal has been given to the owner of which he has not availed himself is the price which the railroad company obtained for the property after removal. The evidence being undisputed that such notice was given and such resale had in this case, in good faith, by the defendant company, the price obtained in this manner is conclusive upon the plaintiff. Answer: Refused. [1]

2. As to machinery and plant in place, the measure of damages is the difference between the value of such machinery and plant at the time of taking, and their value at the termination of the lease. In other words, the act of the defendant having shortened the term of the lease and anticipated the period of removal, the plaintiff is entitled to recover the amount which represents the use or deterioration of the machinery, etc., during that period, without allowance of the items of repair work as such, as repairs never having been made should not be compensated for. Answer: Refused. [2]

The court charged in part as follows:

[There is just one other question which has been urged strongly on both sides of this case, and for your purposes I will instruct you as to your disposition of it; the plaintiff company had the right of removal of the buildings and fixtures, all the improvements on the leasehold at its termination. It was not bound to remove them. What I mean by that is that there was no obligation upon the plaintiff to clear off the land when its lease expired. But if it considered the improvements on the land of any value, it had the right to remove them or the right to leave them there, just as it saw fit. There is a question here as to whether or not if these fixtures and improvements had a value and the plaintiff desired to avail itself of that value, it should have taken away the property. I charge you in this case that it was not the duty but it was the privilege of the plaintiff to take away its fixtures when this lease was condemned; and whatever value they had, they belonged to the plaintiff if it wanted to take them away. The plaintiff did not take them away; and the defendant, the Pennsylvania Railroad Company, disposed of them. The defendant, in disposing of them and receiving money for them, would have to account for them, because it sold something that did not belong to the defendant. It would have to account for them in good faith. It advertised them for sale; it assumed to sell property which, under the law as I have instructed you, did not belong to it; and therefore in good faith it must account for it. It must act all the way through in good faith. It was, not technically but in substance, the trustee, because of assuming to take charge of property that did not belong to it and sell it, and it must act throughout in good faith and account for what it got. If it did that, that is the measure of its responsibility and it could not be held to more. There is some controversy here as to whether the defendant got what it should have reasonably gotten for these improvements that were on the leasehold. If I recollect aright, the testimony is undisputed that so far as the building was concerned it was not worth anything to remove; it would cost all the material was worth to remove it. But the evidence is conflicting as to what the machinery was worth. Its value varies from the testimony of Mr. McAfee, who, I think, put its value at about $65,000, to $5,000 given by other witnesses.]

[Now, gentlemen, this case is not without some difficulty on your part. It is a case which requires your careful consideration. It is not a case, like most cases where witnesses testify to a positive fact and you simply take the testimony and determine the fact; there is considerable more in this case. You must take the testimony and apply to it your own judgment in the matter; you must exercise a very large amount of intelligent judgment in disposing of this testimony. You must determine what was the value of this leasehold. And in order that I may not be misunderstood, I want again to tell you that this leasehold consisted of the land as you have heard it described, the buildings erected upon it and the fixtures, consisting of the machinery, coils, pumps, wells, and all other items which you have heard testified to here, going to make up this ice plant with the electric light plant or any other permanent fixtures on the place.]

[Again, we have permitted both parties to show the value in place and the removal value, that is, the value of these fixtures after they were taken away; not that the plaintiff can recover as such, the value of its machinery as a separate and distinct item; but it aids you in determining the main question in the case, to ascertain what the fixtures on this leasehold were and what was the purpose for which they might be used and what was their value in the market.]

Verdict and judgment for plaintiff for $117,687. Defendant appealed.

Errors assigned were (1-5) above instructions, quoting them.

So far as the matters complained of in the assignments of error are in conflict with this opinion, the assignments are sustained, and the judgment is reversed with a venire facias de novo.

Patterson, Sterrett & Acheson, for appellant. -- The market value of the leasehold is the measure of damages, Penna. R.R. Co. v. Eby, 107 Pa. 166, where the leasehold is improved with heavy machinery and fixtures which cannot be removed without loss to another location, the value of these to the tenant, or those taking title from him, for the unexpired term, as also the cost and depreciation in the event of removal, are elements for consideration in estimating the amount of damage: McMillin Printing Co. v. Pittsburg, etc., R.R. Co., 216 Pa. 504.

As to the removal or wreckage value of the fixtures and machinery as an element of damage. It will be observed that this does not refer to the cost of removal to another site and the consequent deterioration of the property, but deals with the value of the property, severed from and sold away from the land, as an item for consideration in reaching the general result. Where no opportunity has been given to the tenant to remove, it is a matter for testimony and opinion as to what the property was fairly worth in its severed condition. If, however, the railroad company has given notice to the tenant of its proposed entry and has offered to the tenant an opportunity to sever and remove his property and fixtures, upon his failure to take advantage of the opportunity thus given him, he is held to have abandoned whatever property he may leave on the premises, and the railroad company is at most liable to him for such amount as they may receive therefor upon a resale thereof: Lyons v. Railway Co., 209 Pa. 550.

John S. Ferguson, for appellee. -- The right of the appellee was the right to remain in undisturbed possession of the lease to the end of the term. The loss resulting from the deprivation of this right is what the appellee was entitled to recover: McMillin Printing Co. v. Railroad Co., 216 Pa. 504; Wilmington & Reading R.R. Co. v. Stauffer, 60 Pa. 374.

In a long line of decisions, the Supreme Court has recognized...