Pennsylvania Schuyl. V. R. Co. v. Ziemer

• Decision Date: 18 March 1889
• Docket Number: 322
• Parties: PENN. SCHUYL. V. R. Co. v. MARGARET ZIEMER
• Court: Pennsylvania Supreme Court

17 A. 187

124 Pa. 560

PENN. SCHUYL. V. R. Co. v. MARGARET ZIEMER

No. 322

Supreme Court of Pennsylvania

March 18, 1889

Argued March 4, 1889

ERROR TO THE COURT OF COMMON PLEAS OF BERKS COUNTY.

No. 322 January Term 1888, Sup. Ct.; court below, No. 45 January Term 1886, C.P.

On December 25, 1885, Margaret Ziemer, widow, and five others who were the heirs at law of Samuel Ziemer, deceased, brought an action on the case against the Pennsylvania Schuylkill Valley Railroad Company, to recover damages for injuries to their property caused by the construction of the defendant company's railroad. The plaintiff's narr was not printed in the paper books. Issue.

At the trial on October 20, 1887, it was shown that Samuel Ziemer died on June 11, 1884, seised of a lot fronting 140 feet on Canal street and 47 feet on Bingaman street, Reading. Bingaman street made an obtuse angle with Canal street at one end of the lot. In this angle and fronting on Bingaman street were two dwellings connected with each other, though the front of one in which a store was kept was close to said street and that of the other was further back. The side of the double house was towards Canal street with no intervening structures. On the other end of the lot and fronting on Canal street were several buildings, a slaughtering-house, a meat-house, an ice-house and a stable. One of the dwellings was occupied a part of the time by tenants.

Three railroad lines occupied Canal street longitudinally, in front of the property; first, the Wilmington & Northern, on the far side of the street opposite the property; then, the West Reading line, in the middle of the street, and then the defendant company's line, on the near side of the street occupying a small portion of the foot-way at the curb-line. There was a switch line to the freight depot of the defendant company crossing all three lines diagonally in front of plaintiffs' premises. The tracks were all laid at grade.

There was testimony to the effect that by the construction of the defendant company's roadway, which was done in June 1885, the drainage of plaintiffs' property was destroyed that access to the property on Canal street was made difficult and dangerous -- "To tell the truth, that property has no road any more;" that the dwellings were "full" of smoke, noise and dirt.

John P Strohecker, called for plaintiffs, testified upon the subject of the injuries and the damages. On his cross-examination the following offer was made:

Mr Derr: "The witness on the stand having testified as to the effect of the construction of the defendant's railroad upon the market value of the plaintiffs' property, the defendants propose to test his knowledge of market values and of the effect of the defendant's railroad upon market values, by asking him what the people owning property adjoining the plaintiffs and upon the same street, and the owners of property on the same street and in close proximity to the plaintiffs, received from the defendant company for the privilege of using their property in the street for the purposes of their railroad."

Objected to by plaintiffs, as irrelevant, immaterial, and incompetent.

By the court: Offer refused; exception.

Mrs. Margaret Ziemer, one of the plaintiffs, called:

Mr. Bland: "Plaintiffs propose to ask the witness on the stand as to the effect of the construction of the road upon the custom of her store. The object of the inquiry is to prove that by reason of the proximity of the road to the store, and the danger resulting to horses and persons from the frequent shifting of engines to and fro near the store building of the plaintiffs, the custom of the store is greatly diminished; this for the purpose of proving the effect of the construction of the road upon the property as a place of business, and not for the purpose of recovering any loss by reason of the diminution of trade."

Mr. Derr: "Objected to by defendant: 1. Because the store property does not front on Canal street, nor is it contiguous thereto; another property, separate therefrom and used for a different purpose altogether, being interposed between it and Canal street; as an element of damages, the matter proposed to be proved is too remote; 2. Because it is, generally, irrelevant, inadmissible, and incompetent."

By the court: Offer admitted; exception.

The testimony of the witness, admitted, sustained the offer.

In the defendant's case George R. Van Reed was called, and it was proposed to prove by him that the defendant company's road was duly located and staked out for construction upon Canal street opposite the plaintiffs' property, in the fall of 1883, by resolution of the board of directors, and with the consent of the city councils; so that though the road was actually constructed after the death of Mr. Ziemer, the location of it preceded his death, and the right to damages accrued at a time when the plaintiffs had no ownership.

Objected to by the plaintiffs.

By the court: Offer refused; exception.

At the close of the testimony, the court, ERMENTROUT, J., charged the jury:

The parties plaintiff claim to be owners of certain property in the city of Reading at the corner of Canal and Bingaman streets, fronting some forty-seven feet on Bingaman street, and some one hundred and forty feet on Canal street. The jury will recollect the testimony as to the ownership, and the location and character of the buildings that were erected upon this property, as well as the parties who were upon the property at the time of the actual location and construction of this railroad. It is alleged that in 1855 the defendants located and constructed their railroad upon and down Canal street directly in front of this property, and that the plaintiffs' property was in this way injured.

The defendants have asked us to charge you:

1. That the plaintiffs have not submitted sufficient evidence of title to enable them to recover in this case.

Answer: This point is refused.

2. The plaintiffs' declaration sets up a reversionary interest, merely, to the greater portion of the property in question, and all their testimony is as to the difference in market value of the entire property, undiminished by any leasehold interest vested in other people, before and after the construction of the railroad. A verdict based upon such testimony would embrace damages to which the owners of the leasehold interest would be entitled, and cannot therefore be rendered; and there being no evidence in the case on the part of the plaintiffs from which the jury could assess the damages to the plaintiffs' property as described in the declaration, the verdict must be for the defendant.

Answer: This point is also refused.

3. The railroad company have not, by the construction of their railroad on part of the street in question, excluded the public therefrom; nor have they a right to exclude the public therefrom. The street still belongs to the people of the commonwealth and the public at large, including the plaintiffs' tenants, and the railroad company have the right to use the said street for passage to and fro, each one in such use accommodating himself to the other in a reasonable manner.

Answer: This point we affirm.

Previous to the constitution of 1874, there could be no recovery in cases of this character. Unless there was an actual taking of property, an actual going upon the property and laying down the railroad tracks upon it, there was no remedy. Corporations like a railroad company, possessing what is known as the right of eminent domain, could place their tracks upon the public highway, although such action might materially injure the market value of adjoining properties, and without any responsibility whatever in damages.

But the provisions of the constitution of 1874 require that just compensation should be made for property taken, injured, or destroyed, either in the construction or in the enlargement of such public works as railroad companies; and in this way the constitution remedied a great defect and hardship which existed under the old law. [And the courts now say that under the new constitution a man who is injured is entitled to compensation for all the damages, direct or consequential, which he suffered or might suffer in consequence of the building and operation of a railroad placed upon a street in the manner that this was placed upon the street.]

You will observe that the language of the constitution is "just compensation;" just compensation for the injury that may have been done. Compensation for the damages, direct or consequential, is the measure to be considered by a jury. In ascertaining what this just compensation is the courts have laid down some general rules, and they do not materially differ, in cases of this character, from what they were previous to the constitution, when applied to an actual taking of land.

If the plaintiffs were the owners in fee-simple, in possession, without having any portion of the land leased away, it would be the duty of the jury to inquire what was the fair market value of the property at and immediately before the location and construction of the railroad; then they would have to inquire what was the fair market value of the property at and immediately after the location and construction of the railroad as affected by it, with the railway upon the street, built as it is, properly operated as ordinarily railroads are. The difference between those two values would then be the just compensation which the constitution requires a jury to give a party who is injured.

In ascertaining this difference of market values there must always be a fair and just comparison of the advantages and disadvantages resulting from the location and construction of the road; but the...