McMillin Print'G Co. v. Railroad Co.
| Decision Date | 07 January 1907 |
| Citation | 216 Pa. 504 |
| Court | Pennsylvania Supreme Court |
| Parties | James McMillin Printing Company <I>v.</I> Pittsburg, Carnegie & Western Railroad Company, Appellant. |
Before MITCHELL, C. J., FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ. Affirmed.
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Willis F. McCook, for appellant.—The rule of measure of damages where property is appropriated under eminent domain is the same whether the assessment of damages be to the tenant in fee, for life or for years: Phila. & Reading R. R. Co. v. Getz, 113 Pa. 214; Warden v. Philadelphia, 167 Pa. 523.
By his contract of lease, plaintiff was bound to remove and bear the expense of removal at the end of his term: Emery v. Boston Terminal Co., 178 Mass. 172 (59 N. E. Repr. 763).
It was error to give plaintiff the value of the lease and in addition the cost of removal: Moudy Mfg. Co. v. Penna. R. R. Co., 212 Pa. 156; Cobb v. Boston, 109 Mass. 438; Becker v. R. R. Co., 177 Pa. 252; In re New York Central & Hudson River R. R. Co., 35 Hun, 306; Ranlet v. Concord R. R. Corporation, 62 N. H. 561; Dyer v. Wightman, 66 Pa. 425.
Levi Bird Duff, with him L. B. D. Reese, for appellee.— The appellee was an owner and party interested and entitled to compensation for its leasehold: Railroad Co. v. Davis & Leeds, 26 Pa. 238; Railroad Co. v. Eby, 107 Pa. 166; Railroad Co. v. Getz, 113 Pa. 214; Pittsburg v. Ry. Co., 205 Pa. 13.
OPINION BY MR. JUSTICE FELL, January 7, 1907:
This action was by a subtenant to recover the loss sustained by the taking of the leased property by the defendant in the construction of its road. The plaintiff conducted a printing establishment on the third floor of a building owned by H. C. Bair, who had leased the whole building to the Bair & Gazzam Manufacturing Company for a term of ten years expiring April 1, 1907. The manufacturing company leased the third floor to the plaintiff for a term which expired April 1, 1903, and on January 28, 1903, extended the lease to April 1, 1907. A bond to secure the owner of the building was approved November 22, 1902. At this time municipal consent to enter the city of Pittsburg had not been obtained. Proceedings had been instituted by the city to enjoin the construction of the road and it was decided January 5, 1903, that municipal consent was necessary; see Pittsburg v. Ry. Co., 205 Pa. 13. Consent was obtained in February, 1903, and the defendant by direction of the court of common pleas filed another bond to secure the owner. This bond was approved April 28, 1903. A bond to secure the plaintiff in this case was approved June 6, 1903.
The time of the appropriation of the owner's interest in the building became of importance because of the contention of the defendant at the trial that the extension of the plaintiff's lease on January 28, 1903, was made after the whole building had been appropriated; that the plaintiff acquired no additional right by it, and that the term for the taking of which it could recover ended April 1, 1903, and not April 1, 1907. The answer to this contention is that the extension of the plaintiff's lease antedated any valid proceedings by the defendant to appropriate the owner's interest in the building. Until consent had been obtained, it had no right to enter the city and it could not appropriate any property therein. The court was therefore right in holding that there was no appropriation until the approval of the second bond, and that the plaintiff's term extended to April 1, 1907.
The instruction as to the measure of damages was that the plaintiff was entitled to recover the value of its lease and in addition thereto the reasonable cost of removing the machinery, and that in determining the value of the lease the increased rental it was required to pay and the actual, direct loss occasioned by the stopping of its machinery might be taken into consideration. That the cost of removing the machinery was submitted as a distinct item for which there could be a recovery and not merely as evidence of the value of the right of which the plaintiff was deprived, is a matter of which the appellant should not now complain. The case was tried by both sides on the theory that there could be a recovery of the cost of removal in addition to the value of the lease. The appellant's counsel asked the court to instruct the jury that, there being no evidence of the value of the unexpired term of the lease, the measure of damages under all the testimony was the actual amount shown to have been expended in the removal of the machinery and other property from the building, and that the verdict should be...
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