Rees v. Schuyl. R. R.

Opinion, Mr. Justice McCollum: There is no merit in the several specifications of error which relate to the admission of evidence of the value of the plaintiffs’ property in August, 1886. It was then that the defendant company entered upon the premises, and that the plaintiffs first learned of its determination to construct its railroad there. There was nothing upon the ground to indicate a prior permanent location of such road, and there was no act of the defendant company, within the knowledge of the plaintiffs, which amounted to an appropriation of their property. After the plaintiffs had closed their case, some evidence was given by the company of a location in 1883, a plan of which, so far as it related to the plaintiffs’property, was then delivered to them; but in this location changes were subsequently made, and municipal consent to the construction of the railroad was not obtained until July, 1885. It was shown by the plaintiffs, and not controverted by any evidence in the cause, that there was no change in the occupation, use or value of the property from 1881 to the entry for construction in August, 1886. It was purchased by the plaintiffs under an option secured bjr them in 1877, when there was great depreciation in the real-estate market, and, as it stood in 1881, it had cost them $46,500. Its market value after the railroad was constructed upon it did not exceed $40,000, and the defendant company’s evidence was to the effect that ifwas worth that sum before the alleged location, in 1883. The learned judge correctly said in his charge to the jury that there was no evidence showing “ any difference in value between the time of location and of actual occupation,” and he might have added that, upon the undisputed [644] evidence, there was no difference. In view of the facts recited, and distinctly appearing in the record, the question raised by the specifications mentioned is immaterial, and requires no further consideration in this case. It is claimed that there was error in the admission of the evidence, and in the charge of the court, relating to the ice-house constructed by the defendant company under the contract of August 10,' 1886. If the plaintiffs continued the business in which they were then engaged on the premises in question, they had an option, under this contract, to take the ice-house at its cost, to be allowed “ as an offset to the damages awarded to themand, if they believed the company’s bill for construction was excessive, they were at liberty to select an expert, who, with the expert to be named by the company in such case, should fix the just and proper cost of the building, and decide whether •the business could be conveniently carried on in the same. The plaintiffs did not believe or claim that the company’s bill was excessive, and there was therefore no occasion or authority for the appointment of experts. They conceded that the ice-house was well adapted to the business for which it was constructed, and that it was the best that could be devised for that purpose, with the railroad upon the premises. The evidence did not criticise or condemn any work done by the company under the contract, and it did not call in question the efficiency of any device or apparatus erected or paid for by the company, or used in carrying on the business. It did not relate to an inconvenience arising from defective or imperfect work or appliances, but to an inconvenience in the use of the property, ' caused by the construction of the railroad upon it. It had no ’ reference to matters which, in a certain contingency, -were to be passed upon by experts appointed by the parties. It was relevant to the issue, and properly admitted. The cost of the ice-house was made by the contract under which it was built an offset to the damages sustained by the plaintiffs by the location and construction of the railroad upon their property. It was so applied by the tribunal which ascertained and awarded them. The verdict represents the damages, less the cost of the new ice-house, and the company has the credit for which it stipulated. We are not prepared to say that it was substantial, or even technical, error to allow the jury [645] which assessed the damages to apply an admitted set-off in reduction of them. An exception was noted to the charge, not because of any inaccuracy of statement, but distinctly upon the ground that the set-off was not a proper matter to be considered by the jury. The specification of error, however, goes beyond the exception taken when the charge was delivered, and it is now contended that the instructions on this subject were incorrect. But, waiving this irregularity, we think the charge, fairly interpreted, was unobjectionable. It contained a positive direction to the jury to deduct from the damages the total amount expended for the new ice-house. This amount was fixed by the litigants, and the whole duty of the jury, in this particular, was to give the company credit for it. The defendant company did not dispute the claim of the plaintiffs to be reimbursed the additional outlay necessarily incurred in their business whilst the railroad was in process of construction, and it cannot justly complain of the form of the proofs on this subject, because that was finally adopted upon its own suggestion. P. Ashman Rees, one of the plaintiffs, testified to the nature of this outlay, and presented a memorandum, which he read, of the items of it, as they accrued from day to day, and ample opportunity was afforded for cross-examination as to them. We think P. Ashman Rees and John GJ-. Matsinger were qualified and competent to testify to the market value of the property, and that the question to Frederick Rees was harmless, because he answered that he did not know. We find nothing on this record which calls for a reversal of the judgment. The judgment is affirmed. On October 20,1890, a motion for a re-argument was refused.