Knoll v. New York, C. & St. L. Ry. Co.
| Decision Date | 01 October 1888 |
| Docket Number | 278 |
| Parties | A. KNOLL, ADMR., v. N.Y. ETC. RY. CO |
| Court | Pennsylvania Supreme Court |
Argued April 25, 1888
ERROR TO THE COURT OF COMMON PLEAS OF ERIE COUNTY.
No. 278 January Term 1888, Sup. Ct.; court below, No. 73 May Term 1887, C.P.
On March 15, 1887, Anthony Knoll, administrator of the estate of Wencelaus Hermle, deceased, brought an action on the case against the New York, Chicago & St. Louis Railway Co., to recover damages for injuries to real estate upon which the plaintiff held a mortgage.
The narr set out the death of Wencelaus Hermle in April, 1872 owning the equitable title to certain lots in Erie, numbered 39 and 40, in Courtright's plan, and that on July 10 1873, the plaintiff was appointed his administrator; that in October, 1873, he had sold the lots to Mrs. Maria Hermle for $2,000, for which she had executed a purchase money mortgage in that amount, on which mortgage there was a balance due of nearly $1,600; that there was a balance of purchase money due from the decedent to one Courtright and payable before the mortgage debt, of almost $500; and charged that in 1881, the defendant company had constructed its railroad on and along Nineteenth street in front of said lots, and had since run its cars and locomotives thereon night and day; that by reason of the occupation of said street by the moving trains of the defendant company, the lots were rendered for many purposes inaccessible, and, because of the smoke, dust sparks and noise from the locomotives and cars, the dwelling-house thereon was endangered and rendered undesirable as a residence, and the property so depreciated by said obstructions, inconveniences and annoyances inflicted by the defendant company that the plaintiff was unable to collect his mortgage out of the property, and his mortgage interest had been impaired by the defendant company to a large amount, etc. The plea was, not guilty.
At the trial on January 18, 1888, the plaintiff put in evidence the mortgage and the balance due thereon; the amount of purchase money unpaid to Courtright, the vendor of the decedent; the Orphans' Court sale by himself to Maria Hermle, the widow of the decedent, and followed with evidence, admitted pro tempore and under exception, tending to show that before the construction of the railroad the property was worth from $1,600 to $2,000 and that, by the construction and operation of the road, the value of the property had been depreciated about 40 per cent. The plaintiff then rested.
In its case in chief, the defendant offered to show that on November 20, 1884, the company defendant paid to Mrs. Hermle, as owner of the lots in question, $200, in full settlement of any and all claims for damages or compensation which had arisen by reason of the construction and operation of the defendant's road in front of said property, to be followed by the record of the release executed by Mrs. Hermle; this for the purpose of showing that the company had paid the damage stated, and also the amount of damage sustained by the property. The offer was objected to as irrelevant, and excluded, under exception to the defendant. The defendant then put in evidence the record of the Orphans' Court sale of the property to Mrs. Hermle, to show that the property was sold to pay the balance of purchase money due from her deceased husband, the amount being stated at $316.89. Next was put in evidence an account of the plaintiff as administrator of Mr. Hermle, settled on April 2, 1877, from which it appeared that $69.80 had been received by Mrs. Hermle under the widow's exemption law, and that she had been credited on the bond and mortgage debt, $1,350. The ordinance of the city of Erie, permitting the occupancy of Nineteenth street by the defendant company, was then put in evidence, followed by the record of plaintiff's mortgage, to show that no proceedings had been commenced upon the mortgage for the collection of it.
The defendant, at this stage of the case, made the following motion:
Now to wit, January 19, 1888, defendant by attorney, moves the court to order a nonsuit to be entered in said case, plaintiff being only a mortgage creditor of Maria Hermle, the owner of the lots described in the mortgage of plaintiff, and it also appearing that he had not proceeded against said lots for the collection of his said mortgage debt.
Mr. Wetmore: I desire it noted here now that it is agreed that the court may deduct from any verdict that the jury may render, $200 and the interest on it from the time it was paid Mrs. Hermle.
Mr. Davenport: The gentleman might agree to that, but I don't desire any agreements made.
By the court: I am clearly of the opinion that the mortgagee is not such an owner of the property that he could recover damages in a proceeding under the act authorizing the appointment of viewers. The act only gives that right to apply for the appointment of viewers to owners of property, and in this state a mortgagee is not an owner of property. He only has a lien upon it. But this is not an action of that kind. It is an action on the case for consequential damages, and I think that in that case the damage to the mortgagee would not be such a direct damage as to give him a right of action, therefore the motion for a nonsuit is allowed.
A rule was granted the same day to show cause why the judgment of nonsuit should not be taken off, and on February 27, 1888, the court, GUNNISON, P.J., in an opinion citing Ives v. Cress, 5 Pa. 118, held that the action could not be maintained and the rule was discharged. Thereupon the plaintiff took this writ assigning the discharge of the said rule as error.
Judgment affirmed.
Mr. J. W. Wetmore, for the plaintiff in error:
Corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction of their works: Art. XVI., § 8, constitution of 1874. A remedial provision in a constitution, in furtherance of natural right and justice, should be liberally construed to effect the beneficial purpose had in view: Cooley, Const. Lim., 60, n. Section 11, act of February 19, 1849, P.L. 83, requires the viewers to report to whom the damages are payable. If the lands were mortgaged to their full value, the court would certainly direct the payment of the award to the mortgagee. A mortgagee of land, though not in possession, may maintain an action of tort, in the nature of trover, against a person who buys of the mortgagor wood or timber wrongfully cut by the latter from the mortgaged premises: Searle v. Sawyer, 127 Mass. 491; Jackson v. Turrell, 39 N.J. 329. Upon these principles the present action was maintainable.
Mr. S. A. Davenport (with him Mr. Geo. P. Griffith), for the defendant in error:
From a careful reading of article XVI. § 8, of the constitution, it would seem that, from the nature and character of an ordinary bond and mortgage, they were not contemplated as the property to be "taken, injured or destroyed," and that only real estate and improvements upon the same were in view. Had the railroad been located upon these lots, then, under the general railroad law of 1849, the viewers assessing damages would also return what mortgages were liens upon the same; but no such provision can be held to exist in favor of those holding mortgage liens on land not taken by the railroad. Moreover, the plaintiff never even tried to collect his mortgage, and, until he has exhausted the real estate by a judicial sale, he cannot know that his mortgage interest has been impaired.
Before PAXSON, STERRETT, GREEN, CLARK and WILLIAMS, JJ.; GORDON, C.J., and TRUNKEY, J., absent.
This case is somewhat anomalous. The plaintiff is the holder of a mortgage upon a house and lot in the city of Erie. The defendant company, acting under the authority of the railroad laws of the commonwealth and an ordinance of the city of Erie, has built a single track railroad along the centre of Nineteenth street, on which the mortgaged property fronts. The complaint of the plaintiff is, that the value of the property has been depreciated by the building of the railroad along the street, and that his security as a mortgage creditor has been impaired to the same extent. No effort has been made to collect the debt or to bring the mortgaged premises to sale, so as to determine what amount could be realized out of it, but this suit is brought to recover in damages the amount of the alleged depreciation in the value of the property.
From an examination of the testimony we learn that the plaintiff is the administrator of W. Hermle, deceased, who died in 1872. At the time of his death, Hermle was the owner of the equitable title to the lot in question, and had erected the dwelling-house now standing on it. He left a widow to survive him, but so far as the evidence informs us, no issue. Soon after his appointment as administrator Knoll made his application to the Orphans' Court for leave to sell the house and lot at public sale for the payment of debts. Leave was granted, the sale made and Mrs. Hermle, the widow, became the purchaser at the price of $2,000. She paid no part of the...
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