Struthers v. Philadelphia & Delaware County Railroad Co.

• Decision Date: 09 March 1896
• Docket Number: 133
• Citation: 34 A. 443,174 Pa. 291
• Parties: William Struthers v. The Philadelphia & Delaware County Railroad Co., Appellant
• Court: Pennsylvania Supreme Court

34 A. 443

174 Pa. 291

William Struthers v. The Philadelphia & Delaware County Railroad Co., Appellant

No. 133

Supreme Court of Pennsylvania

March 9, 1896

Argued February 14, 1896

Appeal, No. 133, Jan. T., 1896, by defendant, from judgment of C.P. Delaware Co., Dec. T., 1893, No. 45, on verdict for plaintiff. Reversed.

Appeal from award of viewers. Before CLAYTON, P.J.

At the trial it appeared that in 1893, the defendant constructed a line of railroad through a farm of one hundred and twenty-one acres in Delaware county, owned by the plaintiff. The witnesses for the plaintiff fixed the damages at figures varying from $9,000 to $13,000, while the evidence for the defendant tended to show that the farm had increased in value by reason of the construction of the railroad through it.

George Ashbridge, a witness for plaintiff, testified that the value of the property before the taking by the railroad was $33,275 and after the taking it was $22,686; that the elements of damage were three and sixty-four one hundreths acres of land taken by the railroad company at $275 an acre and a depreciation of the entire tract of $75.00 an acre, a total of $8,750. Under objection and exception he was permitted to testify that in addition to the above there was a destruction of a right of way which he valued at $1,000. [1]

The witness further testified that he had been employed by the Girard Trust Co., by the estate of Eli K. Price, by the Pennsylvania Hospital, by the Phila. Trust Co., by the Real Estate Trust Co., by the United Security Co., and many individuals besides, to estimate the values of property and their depreciation under similar circumstances; that he had examined the property in question shortly after the railroad work began and that he had seen it again afterwards and that the result of his examination enabled him to state its value before the taking and its depreciation afterward; that he did not know of any land being sold in that neighborhood. He was then permitted under objection and exception to give his valuation of the land before and after the taking by the railroad company. [6]

The testimony of William Bradley a witness for plaintiff was also objected to because he was incompetent.

The Court: I am inclined to think the witness is competent to testify. You may examine him. He says he is in the real estate business. He says that has been his occupation for ten years. He also testifies that he is familiar with the values of the ground around here, and has known of one sale, and has visited the land as a real estate agent to see what it was bought and sold for. I think he can testify. Exceptions and bill sealed. [7]

Charles B. Sprogle, a witness called by the plaintiff as an expert testified that he had no special knowledge of the property until after the railroad was constructed; that he then went and examined it, and made inquiry as to sales in the neighborhood, and that what he found out about the sales was ascertained within two or three weeks of the trial.

His testimony then proceeded:

The Court: Q. You have been on the land, have you? A. Yes, sir and examined it.

Mr Pinkerton, for defendant: Q. When did you go on this land for the purpose of examining it? A. In the latter part of last December. Q. But you never have been on it at any other time? A. No, sir.

Objected to because the witness has not shown himself to be sufficiently acquainted with properties in the neighborhood.

The Court: I think he can testify as far as his testimony goes, and will give you an exception. Bull sealed. [8]

William Struthers, the plaintiff, was recalled to testify to the right of way.

Mr. Pinkerton: I object to this.

The Court: I will give you an exception.

The Court: I wish you would tell me one thing, Mr. Struthers. As I understand it you did not claim any right of way over this man's land? A. Judge, I had been using that for five years after I bought the property. I used that right of way continually during all that time. Q. But when you bought the property was it a part of your bargain that you had the right to go over this land? A. Yes, sir, it was understood when I bought it that I had the right of way.

The Court: Then I will let it go to the jury. Bill sealed. [9]

The court charged in part as follows:

[What other damages are there? It is said that they interfered with the right of way, and that he has lost the right of way over that road to go to mill, church and market. So far as that right of way is concerned, I instruct you that the evidence is very shadowy. There is barely enough evidence upon that point for the court to permit it to go to the jury.]

* * *

[An old deed has been produced showing that there was a right of way appurtenant to the old sawmill which belonged to a man named Barnes. The right of way appurtenant to a sawmill does not mean that it belongs to the whole one hundred and twenty-one acres. So far as the deed is concerned, it does not make out the title. The deed was subject to a lien of six pounds a year if the owner demanded it. It was a right, therefore, that could be determined or paid for by an annual payment. It was a right appurtenant to a sawmill and not to the one hundred and twenty-one acres. Yet, the plaintiff says that when he bought the land it was understood between him and the seller that he had the right of way over it, but he does not say that he went to see the owner of servient tenant. This right of way depended upon the demand of the servient tenant. The owner of the dominant tenant said you have the right of way. It was his duty to have then gone to the man whose land he was going over and ask if that was so. He should have told him that he had a right of way over his land, and if he admitted it, it would then have been established.]

* * *

[Still there is some evidence that there was a right of way there by immemorial usage, and if you come to the conclusion that there was a right of way then you may consider its value. The evidence is that it was abandoned. If you come to the conclusion that there was an element of damage there you can allow it.]

* * *

[Then you had the testimony of Mr. Ashbridge, who says that the land was worth $150 an acre, and has depreciated until its value is only $75.00 an acre, and the value of the old right of way that has been destroyed is fixed at $1,000. A verdict of $1,000 for the destruction of that right of way would not be sustained by the court under the evidence.]

Verdict and judgment for plaintiff for $5,500. Defendant appealed.

Errors assigned were (1, 6-9) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.

John J. Pinkerton, for appellant. -- If the plaintiff claims that he has the right of way over the lands of another, he must show that such right has been continued, and with the acquiescence of the owner of the land, for twenty-one years: Jones v. Crow, 32 Pa. 398; Arnold v. Cornman, 50 Pa. 361; Walton's App., 9 A. 923.

The court was in error in permitting testimony to be given that the loss of the right of way to the plaintiff was $1,000, and then saying to the jury that "a verdict of $1,000 for the destruction of that right of way would not be sustained by the court under the evidence:" Del. & Hudson Canal Co. v. Barnes, 31 Pa. 193; Erie & Wyoming Val. R.R. v. Smith, 23 W.N.C. 511; Penna. R.R. v. Butler, 57 Pa. 335.

It is the duty of the party offering a witness to show that he had ample means of forming an opinion of value. His own statement that he knew it is not sufficient: Flint v. Flint, 6 Allen, 34; Michael v. Crescent Pipe Line Co., 159 Pa. 104; R.R. v. Vance, 115 Pa. 331; Gas Light Co. v. R.R., 167 Pa. 6.

Whenever the circumstances can be fully and adequately described to a jury, and are such that their bearing on the issue can be estimated by all men, without special knowledge or training, opinions of witnesses, expert or otherwise, are not admissible: Graham v. P.R.R., 139 Pa. 149; R.R. v. Patterson, 107 Pa. 461; Pittsburg, Va. etc. R.R. v. Vance, 115 Pa. 331; R.R. v. Stocker, 128 Pa. 248; Michael v. Crescent Pipe Line Co., 159 Pa. 99; Gas Light Co. v. R.R., 167 Pa. 6.

William S. Ellis and V. Gilpin Robinson, E. G. Hamersly with them, for appellee. -- The appellant has nothing to complain of as to the disposition of the court of the evidence relating to the right of way. Upon the contrary, the view taken by the court was very greatly to its advantage, as it eliminated from the case almost entirely a very material element of damage to Mr. Struthers' property.

The court committed no error in submitting the evidence offered to the jury, because it was amply sufficient to submit to the jury to prove plaintiff's title to the lane by prescription: Thompson v. Phila. Coal & Iron Co., 133 Pa. 46; Garrett v. Jackson, 20 Pa. 335; Pierce v. Cloud, 42 Pa. 114; Carter v. Tinicum Fishing Co., 77 Pa. 310; Jones v. Crow, 32 Pa. 398; Arnold v. Cornman, 50 Pa. 361.

The witnesses called as experts by the plaintiff were properly qualified: Rogers on Expert Testimony, 2d ed. sec. 18; First Nat. Bank v. Wirebach, 106 Pa. 37; Steamboat Co. v. Starrs, 69 Pa. 36; Minnequa Spg. Impt. Co. v. Coon, 10 W.N.C. 502; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Leazure v. Hillegas, 7 S. & R. 313; Flinn v. McGonegle, 9 W. & S. 75; R.R. v. Robinson, 95 Pa. 426; Jones v. R.R., 151 Pa. 30.

Where there were no sales the...