Western Pennsylvania Railroad Co. v. Hill

• Decision Date: 26 January 1868
• Citation: 56 Pa. 460
• Court: Pennsylvania Supreme Court
• Parties: The Western Pennsylvania Railroad Company <I>versus</I> Hill.

56 Pa. 460

The Western Pennsylvania Railroad Company versus Hill.

Supreme Court of Pennsylvania.

January 8, 1868.

January 26, 1868.

January 8th 1868, at Philadelphia.

Before THOMPSON, C. J., READ, AGNEW and SHARSWOOD, JJ. STRONG, J., at Nisi Prius

Error to the Court of Common Pleas of Somerset county: No. 64, to May Term 1866. Middle District.

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H. C. Marchand, W. H. Koontz, and Stewart & Clark, for plaintiffs in error, referred to Searle v. Lackawanna Railroad, 9 Casey 57; East Penna. Railroad v. Hottenstine, 11 Wright 28; Monongahela Navigation Co. v. Coons, 6 W. & S. 112; Henry v. Pittsburg and Allegheny Bridge Co., 8 Id. 86; Watson v. Pittsburg and Connellsville Railroad, 1 Wright 479; Miflin v. Railroad, 4 Harris 190; New York & Erie Railroad v. Young, 9 Casey 180; Patten v. N. Centr. Railroad, Id. 435; Act of February 19th 1849, § 13, Pamph. L. 84, Purd. 840, pl. 18; Hornstein v. Atlantic and G. W. Railroad, 1 P. F. Smith 87.

Golden, Foster and Patterson, for defendants in error, cited Boston and Pr. Railway v. Midland Railway, 1 Gray 360; Drake v. Hudson River Railroad, 7 Barb. 552; Redfield on Railways 136, 143-5, 178-9; Sch. Nav. Co. v. Thoburn, 7 S. & R. 411; Railroad v. Yeiser, 8 Barr 366; Watson v. P. & L. Railroad; E. Penna. Railroad v. Hottenstein; Hornstein v. Atlantic and G. W. Railroad; Miflin v. Railroad; Patterson v. N. Centr. Railroad; Searle v. Lackawanna Railroad; Mon. Nav. Co. v. Coons, supra; E. Penna. Railroad v. Hiester, 4 Wright 53; Harvey v. Lack. and B. Railroad, 11 Id. 434; 1 Greenl. Ev. § 440; Lehigh Bridge v. Lehigh Nav. Co., 4 Rawle 23; Sch. Nav. Co. v. Loose, 7 Harris 16; Glover v. N. Staffords. Railway, 5 Eng. L. & Eq. 335; Concord Railway v. Greeley, 3 Foster 237; In re Cooling, 19 L. J. Q. B. 25; Lehigh Val. Railroad v. Trone, 4 Casey 206; Barclay v. Ingham, 12 Id. 194; Dorlan v. E. Brandywine Railroad, 10 Wright 520; Sunbury and Erie Railroad v. Hummel, 3 Casey 105; Tucker v. E. & N. E. Railroad, Id. 281.

The opinion of the court was delivered, January 26th 1868, by THOMPSON, C. J.

The court admitted evidence and submitted it as a ground of recovery in favor of the plaintiff below, whether the direct and immediate effect of the construction and use of the company's railroad over the plaintiffs' land, had the effect to destroy the business of their mill, and consequently to lessen its value. The testimony is full to this point, and leaves no doubt of the fact. If the taking of the plaintiffs' land directly resulted in this, in a way capable of being certainly ascertained, it is not easy to see why compensation should not result from one cause of injury as well as another. This I suppose would not be disputed as a general proposition; but it is denied that the occurrence of the injury in this particular case is a ground of damage.

What is it? Many witnesses testified that the plaintiffs owned an ancient custom mill; that after the railroad was built and begun to be operated, they ceased to carry their grain to be ground there, and that at least one-half of their custom had fallen off. The reason given for this was simply the danger in going to the mill with horses and teams, owing to the location of the railroad with reference to the mill.

The mill stands on a narrow strip of land, between the Kiskeminetas river, on the one side, and a high bluff or hill on the other. A township road starts at the mill, and after running along the narrow strip for some 15 or 20 rods, leaves the valley and passes into the open country. Side by side, with this township road is the railroad, elevated a few feet above it, and so passes the mill at a distance of some thirty feet from its door. There is no room for another road, it appears, between the township road and the river, and along this road teams and horses must pass to and from the mill; a precipitous bank and the river being on the one side, and the railroad on the other. In the opinion of the witnesses this presented a case of such peril and inconvenience in frightening teams and horses, as to compel them and others to carry their grain to be ground at other mills. If this resulted as an immediate and direct consequence of the taking of the plaintiffs' property, on which to build the railroad, and if the fear and danger in the circumstances of the case were reasonable, and prevented people from coming to the mill, the court advised the jury that the depreciation in the value of the property, therefore, ought to be compensated by the railroad company.

This view, in its application to the admission of testimony and to the charge of the learned judge, forms the principal assignments of error in the case.

I regard the testimony as but a mode of ascertaining a measure of damage, sanctioned by the court from Thoburn's Case, 7 S. & R. 411, down to Hornstein's Case, 1 P. F. Smith 87, namely, the difference between the value of the property after the construction of the railroad and before; the amount of deterioration, when ascertained by proper tests, being the amount the owner should be entitled to. This must almost always be arrived at through a variety of details in evidence, to...