Setzler v. Pennsylvania Schuylkill Valley Railroad Co.

• Decision Date: 23 February 1886
• Docket Number: 376
• Citation: 4 A. 370,112 Pa. 56
• Parties: Setzler v. The Pennsylvania Schuylkill Valley Railroad Company
• Court: Pennsylvania Supreme Court

4 A. 370

112 Pa. 56

Setzler v. The Pennsylvania Schuylkill Valley Railroad Company

No. 376

Supreme Court of Pennsylvania

February 23, 1886

Argued February 9, 1886

As Corrected.

ERROR to the Court of Common Pleas of Chester county: Of January Term, 1885, No. 376.

This case was commenced by the appointment of a jury of viewers on the petition of Webster K. Setzler, to assess damages suffered by him by reason of the location by the Pennsylvania Schuylkill Valley Railroad Company of a right of way over his farm.

The viewers reported awarding to Setzler the sum of $3,800. From this award he appealed, and an issue was framed to determine the amount of damages to which he was entitled.

On the trial before FUTHEY, P.J., the following facts appeared Plaintiff owned a farm containing about seventy-six acres bordering on the Schuylkill river and canal, in East Vincent township, Chester county. The Pennsylvania Schuylkill Valley Railroad Company located its road through the premises of the plaintiff, occupying 2.18 acres of his land; passing through the kitchen of his dwelling house, taking the greater part of the hog house, a part of the barnyard, and running within ten feet of the barn. It also destroyed the garden and the fruit trees, etc., that were growing therein, and cut off a wedge-shaped strip of land containing two acres and one hundred and thirty-nine perches between the railroad and canal. This piece of land is bisected by a considerable gully and stream of water, and requires bridging in order to get the crops from the best portion of it, to and across the railroad at a farm crossing, which the company has established. It required 269 panels of new fence to be built by the plaintiff. A valuable spring of water near the southern limit of the property, which was much used, is rendered useless.

A jury was struck and they viewed the premises several days before the trial. This jury in court, rendered a verdict of $3,143.71, estimating, as they say, that it would be necessary to remove the dwelling house, barn and hog house. The plaintiff's witnesses, who are practical farmers, and well acquainted with the premises for many years, estimate his damages at from $6,500 to $7,500.

The plaintiff presented three points for charge to the court, which appear in the general charge with the answers thereto.

In the general charge the court instructed the jury as follows:

The plaintiff in this case, Webster K. Setzler, is the owner of a farm in Chester county containing seventy-six acres, and the railroad of the defendants, the Pennsylvania Schuylkill Valley Railroad Company, now in process of construction, passes through his property.

The issue you are trying was framed for the purpose of determining the amount of damages the plaintiff has sustained by the taking of a portion of his land for the purposes of the railroad, and the injury thereby occasioned to his dwelling house and other buildings.

You have examined the property and have seen the manner in which the railroad is constructed upon the land, its proximity to the buildings, and other matters to which your attention was directed at the time of your view.

The rule laid down by the Supreme Court for the determination of the question involved in this case, is that it is the duty of the jury to ascertain the value of the property before the railroad was projected through it, then the depreciation it has suffered in the market by reason of the construction of the railroad, and the difference between the two amounts constitutes the amount of damages to be awarded to the plaintiff.

In this case you will therefore ascertain what amount the plaintiff could have obtained for his property in a fair market, either at a private or public sale, before the construction of the railroad by the defendants, and what he can now obtain for it, the difference being the amount of the injury he has sustained.

The testimony of a large number of witnesses has been given relating to the value of the property, both before and after the construction of the railroad. It is your duty to ascertain these values from all the facts in the case, and not alone from the testimony of the witnesses, which is simply one species of evidence for your consideration.

Your attention has been called to the various disadvantages the plaintiff will suffer when the road is in active running operation, and among these are the shape in which his land has been left, by being cut off from the portion taken by the railroad, the necessity created for the erection of a bridge, the building and maintenance of fences, the addition of a tin roof to the spring house to guard against fire by sparks from passing locomotives, and the injury caused to a spring of water.

The witnesses have testified that 269 additional panels of fencing will be required, at a considerable cost to the plaintiff, and that the value of the garden and a portion of the orchard has been impaired to some extent. These are all matters to be considered by you in determining the question of damages.

The principal items of damage the plaintiff claims have relation to the close proximity of the railroad to his dwelling, barn and hog house. It appears that it runs within a short distance of the barn, the outer line of the track being about ten feet from the corner of the straw house, which projects outward from the barn, passing through the kitchen, taking away a portion of the yard and approaching within one foot of the corner of the main portion of his dwelling.

In this connection you will determine whether the railroad runs so close to the buildings of the plaintiff as to render them practically useless for the purposes of his property, and whether they should be permitted to remain in their present position.

If you are of the opinion that a prudent man can safely occupy the buildings, and that there is no occasion to remove them, then the cost of their removal will not be considered by you, although the inconvenience the plaintiff may suffer by reason of the proximity of the railroad is a proper matter for consideration in ascertaining the extent of the depreciation of the property in the market.

The law is clear, however, if you determine that ordinary prudence will render it safe for the buildings to remain in their present position, [that no damages can be given by way of anticipation of any injury the plaintiff may hereafter suffer by fire, either carelessly, occasioned through the negligence of the defendants, or inadvertently, in the proper management of their trains, and it is therefore not an element which you are to consider.] (Third assignment of error.)

[The only question you are to determine, if you decide that a prudent man can safely occupy the buildings as they are now located, is the damage the plaintiff has sustained by the construction of the railroad, the taking of his land and the expense he will incur in restoring his property to its former condition.] (Fourth assignment of error.)

If you reach the conclusion that the proximity of the railroad to the buildings places them in such a position as to render them unsafe for occupation by a prudent man, it is an element that enters into the question of the depreciation of the property in the market, and you will then take into consideration the expense the plaintiff will incur by removing them to another point on his property.

In determining this question, if you conclude that it will be safe for the buildings to remain as they now are, you will consider the testimony that has been given in relation to their possible alteration, and the expense of making the necessary alterations will form an item in the plaintiff's claim for damages.

If you find that it will be impracticable to make these alterations, and that the proximity of the railroad renders it unsafe for any prudent man to occupy the dwelling-house, or to use the other buildings as they are now located, you will consider the cost of their removal to other points, and allow him in your verdict such an amount as will represent the depreciation in the value of his property in that respect.

These are the principal matters involved in the determination of the case to which it is necessary I should particularly call your attention. You have heard the testimony given by the various witnesses as to the manner in which the railroad runs through the property, the estimates they have placed upon the quantity and value of the land taken, the cost of additional fencing, and the other items forming the plaintiff's claim for damages.

It is your duty to consider all the testimony relating to these items, in order to arrive at a proper conclusion as to the depreciation in the market value of the property, and, upon whatever amount you may determine is the damage he has sustained, you will compute interest from the date of the taking of his land, to wit, May 1st, 1883.

In conclusion, I desire to remind you that both the parties to this issue are equal before the law. You are a jury selected by both of them to determine the matter at issue, and you should not be influenced in rendering your verdict by the fact that the plaintiff is an individual and the defendants are a corporation, for both have their rights, and whatever those rights may be, it is you duty to accord them.

I have been requested by the counsel for the plaintiff to instruct you upon the following points, viz.:

1. "A land owner is obliged to run the risk of fire, necessarily following the proper and lawful use of locomotives, and in the event of such fire, no recovery can be had for losses resulting therefrom."

I have referred to the principle of law stated in this point, and have said that if you conclude it is safe for the buildings to remain...