Pennsylvania Schuyl. V. R. Co. v. Cleary

• Decision Date: 15 April 1889
• Docket Number: 160
• Citation: 17 A. 468,125 Pa. 442
• Parties: PENN. SCHUYL. V. R. Co. v. M.J. CLEARY
• Court: Pennsylvania Supreme Court

17 A. 468

125 Pa. 442

PENN. SCHUYL. V. R. Co. v. M.J. CLEARY

No. 160

Supreme Court of Pennsylvania

April 15, 1889

Argued February 22, 1889

ERROR TO THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY.

No. 160 January Term 1889, Sup. Ct.; court below, No 17 July Term 1887, C.P.

On May 2, 1887, Malachi J. Cleary filed a petition for the appointment of viewers to assess damages, against the Pennsylvania Schuylkill Valley R. Co. for land taken by the company for railroad purposes. The viewers were appointed and filed their report, September 5, 1887, assessing his damages at $4,750. The petitioner appealed from the award, and it was agreed that the action should be in the form of an action of trespass, under the plea of not guilty.

At the trial on November 4, 1887, the following facts appeared:

The lot of land, over which defendant's road ran, formerly belonged to James Cleary, who died in 1882. His title descended to his heirs at law of whom the plaintiff was one and to whom letters of administration were issued. The defendant company entered upon the land on July 31, 1885.

Plaintiff offered in evidence a sheriff's deed for this land, dated April 11, 1887, from B. J. Duffy, sheriff, to Malachi J Cleary, acknowledged April 2, 1888; this to be followed by an offer of a judgment by A. E. Beck obtained against James Cleary in his lifetime, together with a revival of the same against the plaintiff as administrator; issue of fieri facias and condemnation, venditioni exponas, and sale to the plaintiff on April 11, 1885, followed by the execution and acknowledgment of the deed.

Objected to by the defendant, because not showing title in the plaintiff at the time of the taking.

By the court: Objection overruled, offer admitted, exception.

Daniel Crawshaw, called for plaintiff, testified that he owned property about half way between Nicholas street and the property in dispute, which property he had acquired in 1884. It was in lots.

Q. What did you pay for it? A. $300 a lot.

Objected to as immaterial.

Q. What are lots worth in that neighborhood? A. They are asking $300 that is what I paid that time; I do not know what they are now.

Mr. Farquhar asks that this testimony be stricken out.

By the court: Strike out as to what he paid. Let the rest stand; exception.

John Buckley, called for plaintiff, testified as to his knowledge of the property for a long time, and on cross-examination stated that various projects had been suggested to utilize it for manufacturing purposes, but that Mr. Cleary was a peculiar man, and the property was in use all the time for the purpose of a truck farm and meadow. On re-direct:

Mr. Ryon: Q. It was also true that Mr. Cleary had refused to sell it to anybody? A. I know it only by Cleary's own declarations.

Objected to.

Q. You went on to tell in answer to the counsel's question, that there were several projects formed for the purpose of purchasing this property for manufacturing purposes. Do you know that to be a fact?

Objected to.

By the court: If you can show that Mr. Cleary refused to sell it for any purpose, that you can show.

Plaintiff proposes to show further that there had been manufacturing projects oringinated, and for the purpose of purchasing this very property for manufacturing purposes, and Mr. Cleary would not sell it. If it is important for them to show that it was only used for a truck farm, it is important for us to show why, because the object of that question is to say to the jury that Mr. Cleary owned the land for 35 years and could not sell it.

By the court: That is all accomplished by proof of the fact that Cleary refused to sell the property. To that extent we will admit the offer; exception.

The witness testified, under another objection and exception, that Cleary told him several times he would not sell the property while he lived.

Testimony having been introduced in the defendant's case in chief, to show that the property lay idle and unproductive after Mr. Cleary's death, in the plaintiff's rebuttal, John A. Nash, who represented heirs interested in the property, was called and asked why the property was not leased by the heirs after the old gentleman's death.

Objected to.

Mr. James Ryon: We propose to prove that they refused to make any leases except to one or two parties who went in there for the mere purpose of taking care of the property; that a man by the name of Smith wanted to lease the property, and pay a very fair rent, that they declined to lease it to him; that they were holding the property for the purpose of cutting it up into town lots and selling it, but that they were not prepared to sell it at the time this railroad came on and took it; that they had not had it surveyed; that there was some preliminary work to do before they could put it into the market. The inference from the cross-examination of counsel as to the property being idle might be damaging with the jury, while if the jury understand the facts why it was idle, because these people refused to lease it, it would be an important element in the question of damages.

By the court: A refusal to lease after Mr. Cleary's death?

Mr. James Ryon: Yes, sir.

By the court: We think you can prove the fact that after Mr. Cleary's death they refused to lease to parties, to go into possession of it, because they wanted to reserve it for other purposes, as an explanation of the fact that the place was unoccupied. We will admit that; exception.

Defendant excepts. Bill sealed.

The court, GREEN, J., charged the jury, in part as follows:

[There is no doubt that Cleary was the owner of about three acres of land on the outskirts of the borough of Pottsville, near what is called the shoe factory, on the road leading from Pottsville to St. Clair, and that of this property about two acres were taken by the railroad company and about one acre was left; therefore it is for you to determine under the evidence in the case what was the value of the two acres taken; also, what damage was done, if any, to the acre that was left.] That depends entirely upon the evidence in the case. It will not do for a jury to put a fanciful estimate on the property. They must be guided by the evidence in the case, and the weight of the evidence. In determining what the weight of the evidence is, you take into consideration not only the number of witnesses testifying upon one side or the other, but you must also take the character, the knowledge, the experience of the witnesses. In every man naturally there is some difference as to the weight of his testimony, depending very much upon his knowledge of the facts in the case, the experience he may have had, his age, and his opportunities for observation. All these are matters to be taken into consideration by the jury in determining the weight of the testimony. The jury is to determine what was the value of this land at the time it was taken by this railroad company, which was in July, 1885. What were these two acres worth at that time or what injury was done by the railroad? . . . .

You will notice in this case there is a very remarkable diversity of opinion in the testimony of the different witnesses who have been examined on the part of the plaintiff and on the part of the defendant. The opinions of these witnesses vary from, I think about $2,500 as the lowest estimate that is put upon the property by any one of the witnesses, as to the value of these three acres of land, up to about $12,000, as I understand the testimony of Joseph Picton, who swears that the property was worth from $3,000 to $4,000 an acre, three acres making $12,000. It is the duty of the jury to examine this evidence, estimate its weight, and from all the evidence in the case, from the weight and character of the evidence, endeavor to come to a fair estimate of the value of this property, also to estimate the amount of depreciation or injury done to the property that was not taken.

In estimating the value of this property, of course the jury should take into consideration what the nature of the property is, what it is reasonably adapted for. For instance you have three acres of land. If it were out in the country and had no other value except as farm land, the natural value you would put upon it then, would be that of farm land. If it were so situated that it could be turned into town lots, then the natural estimate of damages would be its capability of being made into town lots; or, if it were eligible for manufacturing purposes, then its value for a place of business of that character. Of course, property in a town or on the outskirts of a town, as a general rule, would be estimated at a higher rate than if it were to be estimated merely as farm land, and the jury must determine, from the evidence in the case, what that value is. [If you find under the evidence in the case, that this property was adapted, for instance, for town lots, then ordinarily it would have a higher range of value than if it were simply used for agricultural purposes. You have heard quite a considerable amount of testimony with regard to the value of lots, how many lots it would make if it were cut up, how it could be divided and what the value of those lots would be. It would scarcely be a fair estimate of the value of the property to take this property and divide it all up into town lots, and say that each town lot is worth so much money, and that therefore, the whole property is worth that amount of money; because that presupposes that the moment that that property is cut into town lots, it could all be sold off at that figure. That is a question for you whether that would be the case, particularly with a piece of ground on the outskirts of a town, where perhaps the evidence would not show that the...