H. C. Frick Coke Co. v. Painter
| Decision Date | 25 February 1901 |
| Docket Number | 73 |
| Citation | 198 Pa. 468,48 A. 302 |
| Parties | H.C. Frick Coke Company v. Painter |
| Court | Pennsylvania Supreme Court |
Argued January 28, 1901
Appeal, No. 73, Oct. T., 1900, by plaintiff, from judgment of C.P. Westmoreland Co., Feb. T., 1900, No. 63, on verdict for plaintiff in case of the H.C. Frick Coke Company v. Morris L Painter et al. Affirmed.
Appeal from the report of a jury of view in proceedings to condemn land for a lateral railroad. Before McCONNELL, J.
At the trial, when J. P. K. Miller, a witness for the plaintiff was on the stand, he was asked this question:
Defendant's counsel object and ask for the purpose of the question.
This question is asked for the purpose of showing that the present route is not necessary for the purpose of developing the defendant's coal, and along with other testimony for the purpose of showing that another or other routes are more practicable and convenient and doing no more damage to the plaintiff.
This is objected to as incompetent and irrelevant. It is not the province of the court or jury to pass upon the question of the necessity for the route. The question is whether there is necessity for the road in order to develop this coal, and whether this body of coal taken in connection with the petitioner's proposed use is such an undertaking as would entitle the defendant to the benefit of the right of eminent domain.
The Court: We will follow in the remarks that we have to make, the line of discussion mapped out by the discussion of the issues involved, rather than in view of the specific question which has been placed upon the record.
The lateral railroad act contemplates the right to construct a railroad over the land of another in a case where that is necessary, and now the necessity is for adjudication by the jury in this case. That necessity springs out of either a private purpose, or a public purpose, or the concurrence of these two things. A private purpose comes from the ownership of certain property which the owner thereof seeks to utilize by placing it upon the market. The public perhaps or a public purpose is subserved when that article of commerce is brought into the public channels of commerce.
The right of constructing a railroad -- a lateral railroad -- is not given to a private owner except where that proposed railroad is tributary to some public channel of commerce. Where an owner of property, which he desires to place upon the market, already has the means of doing so, the private purpose of the act does not exist. Where the public channels of commerce already have the benefit of that property the public necessity does not exist. Therefore, the showing in the trial of a case that both the public and private purposes contemplated by this act were already subserved, would be a showing that the necessity for the construction of a road across the land of another did not exist. That would be a defense.
But we do not understand it that it would constitute a defense to show that a cheaper route than the one proposed could have been taken. This court and this jury would have nothing to act upon unless the petitioner had already located the route. That power and that right is given to the petitioners themselves. They propose; the court and jury must dispose of the thing proposed. It is either the thing proposed or it is nothing. So that it is perfectly plain that there shall be a route sharply defined -- clearly defined -- and the question of the necessity of that route is to be passed on as one of the questions involved in the trial of a case.
The proposition that is made here is substantially to show that another route might have been taken which would have minimized the amount of damage that would have accrued to the plaintiff in this case. The effect sought by the testimony would be not to deny a public or private necessity, but to allege that another route, admitting the necessity to exist, to reach the coal would have entailed a smaller amount of damages on the present plaintiff and might have been taken.
The safeguard against a petitioner proposing an unnecessarily expensive route lies in the fact that he has to pay for it, and therefore he will not be likely to unnecessarily resort to a route that will make him pay more than the private necessities of his case demand.
We think, therefore, that the admission of testimony to show that a shorter route might have been taken, or that a less expensive route might have been taken, does not have application to the necessity that is contemplated by this act of assembly. It does not constitute a defense on that issue. It has in practical effect a bearing upon the other issue, namely, the extent of the damages, but we do not think that it tends to establish the lack of necessity, such as contemplated by this act of assembly, to admit evidence of engineers and others to show that another less expensive route might have been pursued.
If there is a proposition to show that the public and private purpose which these acts is intended to subserve is already subserved by the existence of another route which is available to these defendants, that is perfectly pertinent, and we think all of the cases have gone to that extent that have touched upon that question. Where there is an existing mode of conducting this private property to the public channels of commerce, we think that matter may be shown, to show that there is the absence of the necessity that the act of assembly contemplates. But we do not think that merely the matter of reducing the amount of damages is a showing that the necessity contemplated by this act does not exist.
Therefore we sustain the objection, to the extent indicated in the views we have just now expressed, and a bill may be sealed for the plaintiff. [6]
Mr. Head: The plaintiff now proposes to prove that all of the coal of the defendant under the several properties mentioned and described in his petition may be carried over his own property, or the property he controls or rights of way now owned or controlled by him to the southwest corner of the property known as the Keck property, which is substantially on the line of the Mammoth Branch of the Southwest Pennsylvania Railway, and thereafter by the construction of a siding of the kind and character usually constructed to reach all similar operations along the main line of said railroad; and that the said coal may be carried to market without the use of any lateral railroad at all over the property of any other person than his own. This for the purpose of showing that there is no necessity for the proposed railroad.
Mr. Williams: We object to the offer as incompetent, immaterial and irrelevant, unless the plaintiff proposes to show that the property of the defendant abuts upon the Southwest Pennsylvania Railway without any intervening lands between such property and the railroad.
Counsel for defendant objects and asks that the purpose of the question be stated.
Plaintiff's counsel ask this question for the purpose of showing that if we cannot furnish a water supply ourselves, and have to get it elsewhere, how much it will cost us to get it.
Objected to by counsel for the defendant.
The Court: I think that is too remote from the question we are trying. The question of the depreciation of the value of this property is the only thing at issue. Objection sustained. Exception. [8]
When O. W. Kennedy, a witness for plaintiff, was on the stand, he was asked this question:
Mr. Williams: We object to the question; it is incompetent, immaterial and irrelevant.
Mr. Williams: We object to the question as incompetent, immaterial and irrelevant.
The plaintiff now proposes to prove by the witness on the stand that the defendant has a right of way over his own property from the Bash or Haberlin coal connecting the Hartsell coal to the Keck coal to a point within about 1,000 feet of the present Mammoth Branch of the Southwest Pennsylvania Railway Company; that the only intervening property between the terminus of this right of way over the defendant's own property and the Mammoth branch, is property of the plaintiff, and the plaintiff now tenders to the defendant and asks leave to file for his benefit, a grant of the right of way across this property, so as...
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