Pittsburg, Va. & Ch. Railroad Co. v. Rose

• Decision Date: 10 November 1873
• Citation: 74 Pa. 362
• Parties: Pittsburg, Virginia and Charleston Railroad Co. <I>versus</I> Rose.
• Court: Pennsylvania Supreme Court

74 Pa. 362

Pittsburg, Virginia and Charleston Railroad Co. versus Rose.

Supreme Court of Pennsylvania.

November 5, 1873.

November 10, 1873.

November 5th 1873.

Before READ, C. J., AGNEW, SHARSWOOD, WILLIAMS and MERCUR, JJ.

Error to the Court of Common Pleas of Allegheny county: No. 68, to October and November Term 1873.

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J. Dalzell (with whom was J. H. Hampton), for plaintiffs in error.—The grade of Manor street was irregular before the railroad was constructed; grading it to a level, was not "embankment" and "excavation," for which damages can be assessed within the meaning of the Act of Assembly; it was as if the grading had been done by the borough authorities: Callender v. Marsh, 1 Pick. 430; O'Connor v. Pittsburg, 6 Harris 187. The borough map was evidence of the line of Manor street: 1 Phil. Ev. 236, 237: Commonwealth v. Alburger, 1 Whart. 473; Birmingham v. Anderson, 4 Wright 506. The house was a nuisance in the street and might be abated: Moyamensing Com. v. Long, 1 Parsons 145. Lapse of time furnishes no defence for an encroachment on a public right; such as the erection of an obstruction on a street or public square: Commonwealth v. Alburger, 1 Whart. 486; Commonwealth v. McDonald, 16 S. & R. 390; Rung v. Shoneberger, 2 Watts 23; Barter v. Commonwealth, 3 Penna. Rep. 253; Penny Pot Landing, 4 Harris 79; Philadelphia v. R. R. Company, 8 P. F. Smith 253; Harvey v. Lackawanna & B. R. R., 11 Wright 436.

The measure of damages in cases such as this, is the same as in cases where land is actually taken: Thoburn's Case, 7 S. & R. 411; Harvey's Case, 11 Wright 434; Hornstein v. R. R. Co., 1 P. F. Smith 90.

In arriving at the value of plaintiff's property the jury are to inquire simply what the property would sell for at a fair, open sale in the market, without reference to its being used for any particular purpose, and that the best evidence of market value is the price actually paid for land in the neighborhood, making due allowance for difference in position and improvement: Searle v. Lackawanna & Bloomsburg R. R. Co., 9 Casey 57; Schuylkill Nav. Co. v. Farr, 4 W. & S. 375; Furman Street, 17 Wendell 649; Watson v. Pitts. & C. R. R. 1 Wright 477; Worthen v. Wilmot, 30 Vermont 555.

D. T. Watson (with whom was D. H. Veech), for defendant in error.—Loss of rent is an element of damage: Railroad v. Stauffer, 10 P. F. Smith 387. The company was bound by the width of the street as opened: Furniss v. Furniss, 5 Casey 17; McMurtrie v. Stewart, 9 Harris 322; Schuylkill Co.'s Appeal, 2 Wright 459.

The opinion of the court was delivered, Nov. 10th 1873, by SHARSWOOD, J.

In the court below this was an appeal from a report of viewers appointed upon the petition of August Rose, to assess the damages to his property arising from the construction of their railroad by the plaintiffs in error. The road did not take any part of the petitioner's land, but was constructed along a public road or street in the (then) borough of Birmingham. The provision of the tenth section of the General Railroad Law, Act of February 19th 1849, Pamph. L. 83, which relates to this controversy, is, "that whenever any company shall locate its road in and upon any street or alley in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act." That such an embankment was made directly in front of the petitioner's property, is not a fact in dispute, and the jury were confined by the learned judge below to the damages sustained in consequence of such embankment, a ruling which could not be a subject of complaint upon this writ of error. We will proceed to consider the several errors which have been assigned.

The first assignment is to the admission of the learned judge of evidence to show, that since the construction of the road there had been difficulty in renting the plaintiff's property, and that for a portion of the time it had remained uninhabited, it being impossible to procure tenants for the same. The objection raised to this offer was that it tended to the allowance of consequential damages, and because the only true measure of damages in law is the difference between the market value of the property before and after the location of the railroad, and this without reference to the purpose to which the property was applied before the building of the railroad, or the intention of its owners as to its future enjoyment. A further objection was made because the plaintiff was not in law entitled to damages resulting from any excavations or embankments which did not change the established grade of the street, and no offer was made to show that the street in question had an established grade. These objections were overruled by the learned judge and the testimony admitted. In this we think there was no error. Admitting the rule for the measure of damages, as stated, to be the correct one, there are many different ways by which the market value of property may be ascertained. It may be by the opinion of witnesses derived from actual sales in the neighborhood, but this certainly is not the only way. There may be few or no such actual sales before and after the alleged injury upon which to found such opinion. Surely the decrease in the rental of the property, or the impossibility of procuring constant tenants, arising from the inconveniences to which such tenants are subjected from the injury complained of, is an element in determining the difference in the value, very proper to be submitted to the consideration of the jury. How far it had resulted from the embankment, and how far from the other inconveniences caused by the construction of...