Pittsburgh, Bradford & Buffalo Railway Co. v. McCloskey

• Decision Date: 09 November 1885
• Docket Number: 20
• Citation: 110 Pa. 436,1 A. 555
• Parties: Pittsburgh, Bradford and Buffalo Railway Company v. McCloskey
• Court: Pennsylvania Supreme Court

1 A. 555

110 Pa. 436

Pittsburgh, Bradford and Buffalo Railway Company v. McCloskey

No. 20

Supreme Court of Pennsylvania

November 9, 1885

Argued October 6, 1885

ERROR to the Court of Common Pleas of Clarion county: Of October and November Term 1885, No. 20.

This was, in the court below, an appeal by Robert McCloskey from an award of viewers appointed to assess damages for the taking of a portion of his property for the construction of the road of the Pittsburgh, Bradford and Buffalo Railway Company. The viewers awarded him $180 damages.

On the trial, before NEALE, P.J., of the thirty-third judicial district, the following facts appeared: McCloskey was the owner of a farm of about one hundred acres in the northern part of Clarion county, through the northwestern corner of which the line of the defendant company ran, taking about two acres of ground, part of which was cultivated and part timbered.

William Gilfillan, a witness on behalf of the plaintiff, was interrogated as follows: Q. "I want you to state, from your experience, if you have ever had any experience, what the effect of a railroad across a farm is as to the danger of fire and danger to stock -- inconvenience of that kind?" Objected to by defendant as incompetent. Objection overruled. Exception. (First assignment of error.) A. "My experience is, that if my family, one of them, was dying to-morrow, we daren't all leave home; yesterday it was on fire after I left there; there is never a week scarcely but I am on fire."

Q. "You are living on the same road?"

A. "On the same road."

J. C Emminger, another witness for plaintiff, was asked:

Q. "State, Mr. Emminger, what proportion of timber Mr McCloskey had, as compared with what a farm of that kind would require, whether more or less?" Objected to by defendant as incompetent. Objection overruled. (Second assignment of error.)

A. "In my own judgment I should think there was not any more than was necessary for a farm of that size to supply fencing occasionally, fuel and something of that kind, and repair buildings; I don't think there is any more on that farm than was necessary." This same witness was further interrogated as follows: Q. "What effect, in your judgment, has the railroad constructed across this land had upon the market value of the land?" A. "I do not know that it has had any effect, as far as my experience goes, in particular." Q. "In what way?" A. "From the fact that I do not know of any land being bought or sold immediately before or since the construction of the railroad." Q. "What I want to get at is this: From your knowledge of the land, and your judgment of the effect of the railroad on it, I want you to state whether it has or has not enhanced or depreciated the value of that farm." Objected to by defendant for the reason that "the witness has already stated that he had no knowledge of the effect of the road upon the market value of the property." Objection overruled. Exception. (Third assignment of error.) Q. "I want your estimate now, Mr Emminger, as near as you can judge, how the market value of that land has been affected one way or the other; what difference has the railroad made on it, in your judgment, if any?" A. "I would think it would depreciate the value of that farm, of that particular farm, by destroying the timber that would be held necessary for the use of the farm, and also for the occupying of the land."

Edward McLaughlin, also a witness for plaintiff, testified as follows: Q. "State from your experience what the danger, if any, would be from fire being communicated to fences, timber and crops in the vicinity of this road, as affecting the market value of the land?" Objected to by defendant as incompetent and irrelevant. Objection overruled and question allowed. (Fourth assignment of error.) A. "The fire has run over my piece and burned some fences last spring, not even the fence along the road, but the fences away from the road."

By the Court: Q. "But as affecting this piece of land -- taking this land the way it is, what would be the effect as to the market value -- what difference would it make?" A. "It would not take a very large fire to kill some timber in the woods, or to burn hay or grain there." Q. "State from your experience what the danger, if any, would be from fire being communicated to fences, timber and crops in the vicinity of this road?" A. "I could not answer without knowing how much damage it would do." Q. "I am not asking the amount of damage; I am asking from your experience what you know about the danger there that would affect the market value of the land." A. "It would certainly affect it if the fire would burn it." Q. "My question is, how does the danger of fire affect the market value of that land? Does it improve it, or depreciate it?" A. "It would depreciate it."

Plaintiff requested the court to charge, inter alia, as follows: "In estimating benefits to be set off against damages, the jury should allow only for special advantages, if any, peculiar to this farm, caused by the construction of the road; and should not allow for any benefits which this property may share in common with all others in the neighborhood resulting from the road." Answer: "This point is affirmed." (Seventh assignment of error.)

The defendant requested the court to charge, inter alia, as follows: 2 "That if the advantages accruing to the land of the plaintiff from the construction of the railroad equal or exceed the disadvantages, the verdict of the jury should be for the defendant." Answer: "That is affirmed, as we have explained to you that these advantages should be peculiar and applicable to this particular tract of land." (Eighth assignment of error.)

7. "The jury, in estimating the advantages, should consider any and everything connected with the general improvement resulting from the construction of the whole road which tend to increase the value or usefulness of plaintiff's property, taking into consideration the whole road, and not merely that part on plaintiff's property." Answer: "This point is affirmed, with the qualification that the advantages of the road to be considered are such as peculiarly affect the plaintiff's land." (Ninth assignment of error.)

The court charged the jury, inter alia, as follows: -- "We would say to you, to be a little more definite upon that subject, that there appears to have been ninety-five perches of ground taken by this railway company, that is, in length; the width varies from three to five perches. The entire length, possibly, would be required to be fenced, and estimating the fencing at nearly the highest estimate put upon it by the witnesses, would make it worth some two hundred and thirty-seven dollars and fifty cents, as we figure it. You, of course, will not be bound by any amount that we suggest; but at a dollar and a quarter a rod the fence would cost two hundred and thirty-seven dollars and fifty cents.

"Then there would be about two acres of land appropriated by the company, and the plaintiff would be entitled to be paid for that, unless he was compensated otherwise by the advantage of the railroad passing over and through that land.

"The value of the land has been estimated variously, from twenty dollars to as high as sixty-five dollars an acre. It will be for you to determine how much the actual value of it is under all of the evidence. If estimated at the rate of sixty dollars an acre, it would amount to one hundred and twenty dollars, and would make, altogether, the actual damages, simply by the appropriation of the land and the building of the fences, three hundred and fifty-seven dollars. We would make that as the actual damage sustained by the plaintiff, leaving out any question of the cutting up of his fields, in passing through, the obstruction of his roads over and through his farm, and any special mutilation or deterioration that there might be in that farm, by reason of the railroad going diagonally through it instead of going in a straight course. That will be another matter for you to consider as an element of damages.

"Then, under these facts, gentlemen, as you have been instructed from the evidence, or, at least, as you have been informed by the evidence that is before you, you will determine whatever the damages are. It is not for the court to suggest any special amount. We cannot, or it is not for the court to say, that the plaintiff has actually received or sustained any damage.

"On the part of the defendant it has been shown you that the plaintiff did not sustain damages -- at least that the damages did not exceed the amount of benefits derived -- that is, by some of the witnesses. Other witnesses on the part of the defendant have gone this far, and said that the only damage the plaintiff would be entitled to would be the value of the land taken and the amount that would be required to fence it. That is the evidence on the part of the defendant.

"On the part of the plaintiff they have shown you that the land is so seriously damaged that the deterioration would amount to a third or a fourth of its actual value. Those witnesses in estimating the actual value of the land, have placed it as high as sixty-five hundred dollars, and as low as four thousand dollars; and one of the plaintiff's witnesses said that eight hundred dollars would compensate, if in addition to the eight hundred dollars the value of the fencing and of the ground taken would be allowed. The value of the fencing we have fixed, as we have stated -- taking it at one dollar and a quarter a rod -- at two hundred and thirty-seven dollars and a half, and the ground, one hundred and twenty dollars, would be three hundred and fifty-seven dollars; that, added to the eight hundred dollars, would make something like between...