Wilmington & Reading Railroad v. Stauffer

The opinion of the court was delivered, by Ag-nrw, J. In determining this case we must consider only the instructions given by the court. Looking at the sum of $700 for damages done to the barn, found in the statement of items returned [378] by the jury, it is possible they misunderstood or disobeyed the instructions. Eor this error the remedy was a new trial. But one question is involved in the assignments of error, and we may therefore follow the example of the plaintiff in error, and consider all together. The court told the- jury distinctly they could not compensate the plaintiff for the risk of fire to his barn or its contents, and could not hold the company responsible for anything-that might be burned, nor for the risk of such burning. They then said: “ But if from the proximity of the road to the building, the danger of fire is, necessarily, so imminent, that no man of common prudence would use it for the purpose of a barn, but would be driven from it and compelled to provide himself with a barn elsewhere, then the plaintiff is clearly injured in this respect, and the jury must consider it in estimating the effect of the road on his property.” They then proceed to explain, by stating that the property is depreciated to the extent that it is thus rendered unfit for its proper purpose and use; that the fairest test of the effect of a railroad on property, is a comparison of its value at the time the road was projected, with its value at the time of its completion ; that in consequence of this privation of use, the projoerty in the market as a farm would realize the owner just so much less in consequence of the road being there. This is the substance of the instructions, and it will be seen that the court did not authorize any compensation to be given for the burning of the barn, or for the risk of fire, hut submitted only the effect which the proximity of the road to the barn would produce upon the price or market value of the property, and this was left to be counterbalanced by the advantages which the property would derive by the construction and use of the road. Thus it will be noticed that it was the depreciation of the value of the property arising from the road, and not an anticipated injury to the premises by fire, which was held to he the subject of compensation. The case is therefore not governed by Railroad Co. v. Hummell, 3 Casey 99, and Railroad Co. v. Lazarus, 4 Id. 203. There is no difficulty in distinguishing it. The finding in Hummell’s Case was for $1000, damages that may be done to the buildings from fire by the ordinary use of locomotives, excluding fires arising from negligence or carelessness. That was an evident attempt of the jury to forecast the risk of fire by accident, and was rejected by this court as wholly uncertain and speculative, it being founded on an event that might never happen, and rested on a mere calculation of chances. But that actual depreciation of value which arises from the special circumstances of the location and construction of the road, stands upon a different footing. Thus injury arising from the location in relation to the peculiar features of the premises, proximity to buildings, interruption of their ordinary use, and of the avenues of passage, inconvenience caused by [379] embankments and deep cuts, and matters of this nature, have been always held to be proper subjects of consideration in estimating the depreciation of the value of the property as a whole. Therefore, it was said in Hummell’s case itself, that no one can examine our laws providing for public improvements, without seeing that, in almost every instance, the legislature intended to provide compensation for every injury usually recognised as such by the common law, if committed by a private individual. In Searle v. Lack. & Blooms. Railroad Co., 9 Casey 62, it was said, “ for all the actual damages arising from the manner in which the road went through the plaintiff’s land and affected his improvements.” In Patten v. North. Cent. Railroad, 9 Casey 432, “for injuries by cutting his land into portions that were inconvenient in shape, or inconveniently separated by deep cuts or embankments, and for any difficulty or diversion of a private road occasioned by the construction of the railroad above or below its grade.” In Watson v. Pitts. & Conn. Railroad Co., 1 Wright 480, “ it would be a narrow construction were we to hold that the legislature did not intend an assessment of all the damages which are the direct and immediate consequence of the construction of the railroad to the whole tract of land through which it may pass. It is upon the whole tract the road is located, though only a part of it is actually occupied;” and the construction given to such charters has been “ that they are intended to secure compensation for all such injuries as the common law recognises as fit subjects of compensationEast Penna. Railroad v. Hottenstine, 11 Wright 30; “ allow for the disadvantages to the farm for the manner in which it may be cut by the projected or constructed road.” See, also, Harvey v. Lack. & Bl. Railroad Co., 11 Wright 434, and Hornstein v. At. & Gr. West. Railroad Co., 1 P. F. Smith 90. But this question has lately undergone examination, and the views of this court expressed by the Chief Justice, in a well-considered opinion, in West. Pa. Railroad v. Hill, 6 P. F. Smith 460. The subject there was a mill, cut off from the main land by an intervening railroad, and subjected to a loss of its custom, by the danger and risk of crossing the track with horses and teams and of hitching them at the mill. It was held that a depreciation of property by agencies that destroy its value, would undoubtedly be a ground of recovery of damages at common law, and the law recognises such injuries as fit subjects of compensation. It was such a depreciation in value which we think the court left to the jury in the present case, to be found from a consideration of all the circumstances, and hence we think no real error was committed by the court below. Judgment affirmed.