Kersey v. Sch. River E.S.R. Co

• Decision Date: 17 March 1890
• Docket Number: 170
• Parties: JOHN J. KERSEY v. SCH. RIVER E.S.R. CO
• Court: Pennsylvania Supreme Court

19 A. 553

133 Pa. 234

JOHN J. KERSEY v. SCH. RIVER E.S.R. CO

No. 170

Supreme Court of Pennsylvania

March 17, 1890

Argued April 2, 1889

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 170 January Term 1889, Sup. Ct.; court below, No. 472 September Term 1886, C.P. No. 2.

On November 6, 1886, John J. Kersey petitioned the court below for the appointment of viewers to assess damages arising to the petitioner, by reason of the location and construction by the Schuylkill River East Side Railroad Company, of a railroad upon and across certain land in the city of Philadelphia. Viewers were thereupon appointed, who reported assessing damages in favor of the plaintiff in the sum of $7,700, whereupon the company defendant entered an appeal from the award, and an issue was framed to determine what amount of damages, if any, the plaintiff was entitled to recover.

At the trial on October 10, 1888, the following facts were shown: In January, 1886, the plaintiff was in possession of a certain parcel of ground in Philadelphia, lying between the Schuylkill river and Twenty-fourth street, as a tenant under a lease for five years expiring on July 1, 1887, subject however to the proviso that in case the landlord should sell the property, the lessee should vacate the demised premises at the end of the current year, and subject to the condition that if the premises should be used by the lessee for any other purpose than as a coal yard and wharf, or if they should be underlet or the term assigned, without the written assent of the lessor, the lease should become forfeited. The plaintiff, upon the premises so leased, carried on the business of selling coal and sand. He received all his goods by boat, there being on the premises not only a wharf frontage upon the river, but also a dock. The plaintiff's coal, when received at the wharf, was hoisted out of the boats to the height of nine feet, put into barrows and carried along runs to the places of storage. All the hoisting apparatus, trestle-work, shedding, and appliances, used in his business, were the property of the plaintiff.

In January, 1886, the defendant company entered upon the premises to construct its road. It appropriated a strip of ground running through the same sixty feet in width. The construction of its road necessitated the destruction of the plaintiff's runs and sheds, and the construction of new appliances adapted to lifting the coal from the boats to a height of twenty-three feet and carrying it across the railroad track, the appliances required for carrying on the plaintiff's business, after the construction of the railroad being thus necessarily much more extensive in their dimensions than those formerly used.

James Colwell, the manager of the plaintiff's business, was called as a witness in his behalf. The witness having testified that the railroad company promised to construct for the plaintiff the runs and sheds necessary to enable him to carry on his business, but failed to do so, and that, in consequence he was compelled to construct them himself, the plaintiff made the following offers of further testimony:

Mr Caven: I offer to show by this witness, as part of the damage to the leasehold interest of Mr. Kersey, the plaintiff exactly what it cost him to reconstruct his runs and appliances, in order to give him the same facilities for continuing his business to the end of his term, after the entry of the railroad, as he had before; it having been shown that the runs had to be reconstructed after the entry of the railroad, in order to enable the plaintiff to conduct his business.

Objected to.

By the court: Objection overruled; exception.

Q. How much did it cost you to construct those runs and equipments? A. $5,461 and some cents.

Q. Was there necessarily an increased cost in handling and storing your coal, after the construction of these new appliances, up to the end of your term? This is to show the decreased value of the leasehold.

Objected to.

By the court: Objection overruled; exception.

A. Yes, sir; I am giving my testimony by the year. Q. Up to the end of your term there was an increased cost? A. Our increased cost was $805. Q. I have simply asked you if there was an increased cost in storing and handling your coal up to the end of your term. A. I have said yes. Q. What was that cost? A. $805 over the previous system. Q. About how much would that be per ton? A. Three and a half cents; say three cents. That would be inside of it. Q. Was there or not increased waste and breakage necessarily resulting from the new appliances in handling coal? This is asked in order to show the decreased value of the leasehold.

Objected to.

By the Court: Objection overruled; exception.

A. There is an increased cost of $1,770 a year over the old way of doing business. Q. How much was that to the end of your term? A. I don't know. I didn't count it that way. I counted it annually. I suppose it would cost half of that to the end. Q. Just half of that to the end of your term? A. Yes, sir. Q. Making about $2,500? A. Yes, sir.

Other witnesses upon each side of the case testified respecting the extent to which the construction of the railroad necessitated expenditures by the plaintiff in adapting his coal yard to the continuance of his business, and its effect upon the expenses and waste incident to handling his coal.

At the close of the testimony, the court, FELL, J., submitted the case to the jury, instructing them to determine in the light of the testimony and in accordance with principles laid down in the charge, what depreciation in the value of the plaintiff's unexpired term had been caused by the location and construction of the railroad through the demised premises. The jury rendered a verdict in favor of the plaintiff for $9,320. A rule for a new trial having been discharged, judgment was entered on the verdict, when the defendant took this appeal, assigning for error:

1-3. The admission of the plaintiff's offers. to

The judgment is affirmed.

Mr. Thad. L. Vanderslice (with him Mr. Lewis C. Cassidy), for the appellant:

1. The question for the jury was as to the effect of the railroad upon the market value of the plaintiff's leasehold estate, his damages being measureable by the same rule that is applied to the owner of the fee: Penna. R. Co. v. Eby, 107 Pa. 166; Phila. etc. R. Co. v. Getz, 113 Pa. 214; and market value is to be determined by the opinions of the witnesses: Pittsburgh etc. R. Co. v. Patterson, 107 Pa. 464. The rule laid down in Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411, that the jury are to value the property as of the date of the injury, without reference to the state of the owner's business, and ascertain the difference between what it would have sold for as unaffected and as affected by the obstruction, has never been departed from. The plaintiff did not show by any witness the value of his estate, either before or after the entry of the railroad company, but he was permitted to pursue just such a method of proving damages as was attempted in Reading etc. R. Co. v. Balthaser, 119 Pa. 482, and there held a ground of reversal.

2. The plaintiff was entitled to be paid in full for damage done to his trestle and shedding, but the cost of new appliances sheds no light upon the depreciated value of the leasehold. It may well be that, under the changed conditions, its greatest value to the tenant would be for some other use than as a coal wharf. The testimony as to the increased cost of handling the coal, and the increased breakage and waste in it, with...