Pennsylvania Railroad v. Eby

Mr. Justice TruNKEY delivered the opinion of the court October 6th, 1884. Neither the Act of April 13th, 1846, nor the Act of March 17th, 1869, provides that the tender of a bond to and acceptance by the lessor, or the approval of a bond to the lessor by the proper court, authorizes the Pennsylvania Railroad Company to enter upon laud in possession of the lessee. By the former Act, before land can be taken the bond must be made “ to the party claiming the damages,” and by the latter to the “ owner or owners thereof or parties interested therein.” Eby [172] was in actual possession, and that was notice to the company of his interest in the land. A tenant is an owner or party interested, entitled to security as the statute provides, before entry can be lawfully made on bis leasehold without his assent: North Pa. R. Co. v. Davis, 26 Pa. St. 288. Where a company enters upon land without permission, and without payment of damages or security therefor, the person having the right of possession maj^ recover in ejectment whether he be the absolute owner, or owner of an estate for years. Upon like principle such owner may recover in trespass for an injury done to his estate under similar circumstances. The subsequent giving of security, in the mode authorized by statute, will not deprive the injured party of his appropriate remedy for the trespass. There is no error in the rulings complained of in the first three assignments of error. Nor can the fourth and fifth assignments be sustained. No evidence was admitted that before the trespass the defendant had given a bond to anybody. The offer of the record at No. 52, April Term, 1880, containing the bond that had been given to Harris, was for the purpose of showing that the defendant had the right to appropriate the property, not to show good faith for the purpose of repelling punitive damages. A corporation vested with the right to take private property for public use, after payment of damages or giving security therefor, has no right to touch it before. Where it enters upon property without right, if liable only for actual damages, it can evade the law with impunity. In this case there is no evidence of wantonness or malice beyond that implied from a taking and appropriation without right. Nor is there evidence that the plaintiff assented to the taking. At most the evidence shows that he was satisfied with the manner in which the work had been done, not with the act of taking his property. Had the defendant shown that a bond had been given to the landlord in the belief that it was security also for the tenant, and that the entry was accordingly in good faith, the jury ought not to impose punitive damages; yet the fact would be for the jury. We are not convinced that there is error in the instructions relative to damages. Had the record referred to in the sixth assignment been offered for the purpose of showing an outstanding title in a third party as a justification of the trespass, it would have been inadmissible. The purpose of the offer was not stated, and it was unnecessary to state it, unless asked by the opposite counsel or the court. Hence, if it was competent for any purpose it was error to reject it: Richardson v. Stewart, 4 Binn. 198; Benner v. Hauser, 11 S. & R. 352. As the cause was tried, a material question was the value of the leasehold [173] from tbe date of the trespass to tbe date of approval of the bond on September 1st, 1880. If Harris had no title to a part of the leased laud along the canal, as shown by the disclaimer filed in the ejectment at the suit of the Pennsylvania Canal Company, the offer was pertinent. There is testimony that if the Canal Company owned the strip, the leasehold was not worth very much. Though the trespass was on that part of the laud for which Harris had title, evidence was received and submitted tending to show that the whole leasehold was nearly destroyed, and Eby claims that because of the injury lie was compelled to abandon the property. The fact that a third party owned a valuable part of tbe land would likely affect tbe market value of tbe lease, and evidence of the outstanding title is material in arriving at the amount of actual damage. The Pennsylvania Canal Company commenced tbe suit against Harris before Eby obtained bis lease, and there is no apparent equity in the claim that either Harris or Eby could recover damages for what belonged to another party. Tbe court properly ruled that with respect to the measure of damages it was competent for the plaintiff to prove the value of the leasehold interest over the rent received. But immediately following that ruling the plaintiff was permitted to say, “ If I had stayed on there rather than moved away, it would have paid me one thousand dollars a year.” If the question was so framed as to elicit that answer it was improper ; and if not so framed, impertinent matter injected into the testimony by the plaintiff as a witness ought not to be submitted to the jury. The stenographic report shows promptness on the part of defendant in objecting to the answer, and it ought to have been as promptly stricken out. The principle which had just been ruled by the court did not involve the opinion of the witness as to the profits of his business bad he remained two years. It was competent to prove the market value of the leasehold by the opinion of witnesses in the same manner as it would be the value of other property. That value is what the leasehold was worth — it was worth to the plaintiff the same sum as it was worth for sale and transfer, and the mode of ascertaining the sum is by testimony of witnesses upon its market value. If by reason of the taking of the property or its destruction tbe plaintiff was specially injured he is entitled to compensation for such injury, as for the time necessarily required in removing and the expenses of such removal, and for other loss directly resulting from the defendant’s act. That does not include estimated profits of future trade or business, or other supposed consequential injury. And compensation will not be given for the mental suffering of a party who would rather have stayed on the premises than have moved away. [174] The reason for sending out a statement of claim with the jury in an action upon contract may apply with like force in an action of trespass, as when the damages claimed in trespass include the value of a number of things injured or destroyed. It was said by Justice G-ibsoít “that the court ought to see that what purports to be a mere statement of particulars be so in fact; that it be subservient only to purposes of calculation, and contain no item of which at least-evidence has not been given: ” Frazier v. Funk, 15 S. & R. 26. The statement in this case contained an item for “ damage by being deprived of a lease for two years from April, 1880, at |800 a year.” Explicitly the court had charged that if the plaintiff had any claim for loss accruing from the right to be tenant of the place after the 1st of September, 1880, he could recover in a different form, under the bond filed of that date, and not in this action. Then the claim in the statement was misleading instead of aiding. There was indeed evidence of the value for two years, and, therefore, the greater danger that the written statement would lead the jury from the oral charge. It seems from the opinion on the motion for new trial that the learned judge did not look at the calculation, and has never seen it, although it was objected to as not sustained by the evidence. Doubtless, had he looked at the paper it would not have gone out with the jury. An item which the jury shall not consider should be omitted as if not proved. It was the duty of the counsel who objected to the statement to point out the items to which he objected, if requested; but he was not so requested, and it does not appear that he had the opportunity. The sixth, eighth and ninth assignments must be sustained. Judgment reversed, and venire facias de novo awarded.