Hays v. Briggs

The opinion of the court was delivered, January 5th 1874, by Agnew, J. — Without following the assignments of error seriatim we shall notice the important questions raised in this case. The viewers allowed Mr. Briggs a strip of ground on the margin of the Monongahela river, six hundred feet long by eighty feet wide, for a wharf or landing. To this allowance Briggs filed no exceptions involving the extent of the area, so far as we have discovered. Hays, however, took an appeal principally on the ground disclosed by the issue formed upon his appeal, that the viewers laid off too large an area, that he himself needed the ground for his own uses and purposes, and that it was not necessary to Briggs for public or private purposes. In his petition Briggs had claimed twelve hundred feet on the river, and on the trial asked to amend by disclaiming three hundred and sixty-seven feet in length, and claiming to appropriate the remainder, eight hundred and thirty-three feet. On the trial the court permitted Briggs to claim, and the jury to find, this remainder, the verdict returning it as eight hundred and thirty-five feet and 29-100 front on the river, and eighty feet back from the same. In this there was error. The appeal under the Act of 17th November 1871, 2 Bright. Dig. 1241, pi. 148, was confined to the assessment of damages, the necessity of the wharf or landing to the applicant, and the necessity of the owner of the ground to retain it for his own uses and purposes; and if the last be found the wharf or landing shall not be taken from him. The viewers, under the Act of 24th April 1843, 2 Bright. Dig. 1239, pi. 139, must go upon the ground, view it and mark off the portion of land to be allotted as a wharf or landing, and'fiK the compensation to the owner. The case of Horner v. Roberts’s Lateral Railroad, 1 Wright 333, held, that the appeal extended to the question of compensation only, and not to location, or necessity. This defect in the law was remedied by the Act of 1871, so far as to extend the appeal to the questions of necessity to the applicant and necessity to the owner; but not to, embrace that of location, which was left where it stood before, under the Act of 1843. The argument that this leaves the petitioner without remedy when the viewers allow him too little or no ground for his wharf or landing, is unfounded. The report of the viewers is subjected to the approval of the court, and this confers the right of exception upon either party. It is on this right of exception Judge Strong relies in basing the right of appeal in Horner v. Roberts’s Road, a right given beyond the privilege of exception, as the means of having the question of compensation tried by a jury. [385] If Mr. Briggs thought the six hundred feet laid off to him by the viewers were too little for his necessity, he could have filed exceptions, and if successful the court would have awardéd a new view. Possibly he also might have appealed, but as to this we give no opinion. But when Hays appealed on the ground that the viewers had allowed more ground to Briggs than his necessity required for his actual railroad, the issue was confined to the six hundred feet laid off. This issue involved the necessity of the whole and every part of it, and the jury might have allowed him less, but could not allow him more, upon this issue. What might have been proper in case both parties had appealed, we do not say. The question of a harbor for boats, is also important. The plaintiff’s fifth and sixth points asked a direct instruction against the right to take ground for a harbor, distinct from the land necessary for the wharf or landing. To this request no answer in distinct terms was given, but the court declined the points as too broad. The latter part of the fifth point presented only an alternative in case the answer was adverse to the former point. The sixth point presented the question squarely that the petitioner was not entitled to take ground for a harbor for either empty or loaded craft. The purpose of a wharf or landing for loading and unloading boats engaged in the coal trade, is different from that of a harbor or place to lay up boats empty or laden. This is especially true of the coal business on the Monongahela, in view of the magnitude of the barges used and the length of time often required to keep them in harbor before a boating stage of water arrives to take them out, and to carry them down the Ohio. It appears that often before such a stage or .flood occurs, these coal-barges and coal-boats are collected in large fleets and lie moored along the shore or in the river. Now, clearly the privilege of a wharf or landing to load these boats with coal from the mines was not intended to confer a right to harbor them all along the lands of others, to wait the coming freshets. The error of the court was not so much in what was said, as in what was left unsaid, when specially called to state to the; jury the difference between a right to take land for wharfage or landing, and land for harborage. The position of Mr. Hays’s counsel that the lateral railroad could not pass over the Virginia and Charleston Railway to reach the slackwater navigation of the Monongahela cannot be sustained. There is nothing in the language of the law necessarily requiring such an interpretation, and certainly nothing in the reason of the thing to'demand it. In going to the slackwater navigation the very words of the law are fulfilled, while the nature of the coal trade, its great magnitude and its market all demand a water transportation, and these require a reasonable interpretation of the law to make it beneficial and to accomplish its true intent in aid of trade. The question of crossing at grade, or how the crossing [386] shall be effected, concerns different parties. The point we decide is that the lateral railroad may pass beyond a carrying railroad to reach a canal or slackwater navigation. We discover no real error in the definition the court gave to the words in the act — “ his own uses and purposes.” The intention of the Act of 1871 was to protect the owner of the ground in the enjoyment of it, when he himself needed it. It is only when his uses and purposes do not require it to be retained, that another is permitted to divert it to his use. The owner of ground on the margin of a river, necessary for the loading of coal from his own immediately adjacent coal-lands, ought not to be deprived of its use, merely because he has not yet constructed his wharves and his railroad to them; if it be manifest that this is the very purpose for which he seeks to retain it. If it be necessary to bring his own products to market when he opens his mines, clearly he should not be deprived of his right to the enjoyment of his own property in a reasonable time and manner. He may not, perhaps, like the dog in the manger, keep others at bay, and yet intend to make no use of the thing itself. But if it be a bond fide intended use, the law should not be so construed as to trench upon his right to enjoy his own reasonably in his own way and at his own time. The want of capital, encumbrances and many other circumstances may compel him to defer present improvement. In regard to the exceptions to the offers of evidence relating to the damages, we think in. some of them the court opened the door to a wider range than the law permits. The rule laid down in East Penn. R. R. v. Heister, 4 Wright 53, and followed in Pittsburg, Virginia and Charleston Railroad Co. v. Rose, at this term, antea 362, is the value as estimated by witnesses in view of its location, productiveness or other uses not speculative, or as denoted by the market value or selling price of lands in the neighborhood ; and this selling price I understand to be the general selling price, and not that of a particular sale. It will not do to fix the market value by special, and it may be exceptional cases. Of such a test Thompson, J., said in Heister’s case, it will not do, for, if allowed, such special instance adduced on one side must be permitted to be assailed, and its merits investigated on the other ; and thus, there would be as many branching issues as instances, which, if numerous, would prolong the contest interminably. Such testimony does not disclose the public and general estimate. The offer to prove, by A. D. Smith, a sale in 1859, was incompetent, not only because of its repugnance to the rule as to special instances, but by reason of its long antecedent time, and the necessity of filling up the gap in time, by evidence to bring it down to the proper date. The proposed testimony of Alexander Love was objectionable as evidence of a special instance, and also because it was the case of an appraisement by viewers involving all [387] the circumstances of that case, and the benefits to be set off. The testimony of Joseph Walton was incompetent for similar reasons. The testimony of P. L. Devlin, so far as it bore on the question of the value of the three hundred acres as a measure of damages, was not competent; but as it had also a' bearing on the question of the necessity of James II. Hays to retain the landing for the benefit of his adjacent three hundred acres, it may have had some relevancy. In regard to the distances of the different landings from the locus in quo, we do not say they were too far off to assist the witnesses in forming their judgment of the general market value of grounds in the neighborhood for such uses. Wharves' and landings are confined to the river shore, and the business along the Monongahela is similar to that of Mr. Briggs. A witness estimating the general market value of such lands in the neighborhood may be permitted to range further from the lands in question than in a ease of ordinary neighborhood value of farms or lots. But his range of thought in estimating a general market value is a very different thing from his being permitted to testify to special instances of sales at any distance, near or remote. Judgment reversed, and a venire facias de novo awarded.