Harris v. Schuylkill R.

Opinion, Mr. Justice Mitchell : It has been said too often and too recently to require repetition that the true test of damages for the taking of laud for railroad purposes is the difference between the value of the entire lot as it was just before the taking, and the value of what is left after the taking. Both parties to the present controversy admit this rule, but both sought at the trial to present evidence in violation of it. The appellee unfortunately succeeded. In estimating the value of the lot before the taking, its possible and probable uses are important elements, and may be [253] shown by the opinions of experts. But the details of improvements, the cost, probable rent afterwards, etc., require knowledge of the subject, to insure the proper weight to be given, and the inferences to be drawn from them. Henee thejr are not admissible as independent facts for the jury, and the appellant’s offers in that regard, as, e. g., to prove the cost of bulkheading this lot to make a wharf of it, were properly excluded. But such details ought to enter into the view of the expert in forming his judgment, and whether they have done so is a legitimate subject of cross-examination. Again; the value of the lot at the time of the taking is the value as it was, not as it might have been with improvements, though the availability for these is, as already said, an element in its value as it is. And the value of the rest of the lot after the taking is also its value as it then is, not as it is when improved. And both values, before and after the taking, are the general market values of the particular lot, considering such advantages or disadvantages as are special and peculiar to it, without reference to the general rise or fall common to it, with other property in the neighborhood, consequent upon the coming of the railroad. Without going into the details of the numerous assignments of error on this branch of the case, it is sufficient to say that appellant’s questions on cross-examination, as to the basis of the opinions of the appellee’s experts, should have been admitted, and also that his objections to the opinions of the same experts upon the value of the property after the taking, that they were based on the value as an improved wharf lot, and also included elements of the general appreciation of values in the neighborhood, should have been sustained. The main question, however, is upon the effect, as to damages, of the building of the bulkhead by the railroad company on the port-wardens’ line. As this was entirely outside of the strip of land taken for the right of way, the company were bound to show some authority for putting it there. Otherwise it was a trespass, for which they were not only not entitled to claim that it benefited the property, but were liable in damages. The claim made at the argument that good engineering required the bulkhead to be put where it is, only needs the obvious answer that, if so, the company should have condemned that part of plaintiff’s lot, and paid for it in the regular way. [254] Their acquisition of the sixty-feet-wide strip for railroad purposes gave them no right to put retaining walls or abutments or bulkhead upon any other part of plaintiff’s lot, and all contention to that effect must be dismissed from the case. The only authority that defendant did show was the agreement of Harris, as set forth in the letter from Ellis to him, dated October 27, 1885. It is true Harris wrote a letter in answer, in which he made a counter-proposition which he says was accepted, but which Ellis says was refused. For the purposes of this case, it is immaterial which is right. The counter-proposition stipulated, in a certain contingency, that the railroad company should keep the bulkhead in repair satisfactory to the port-wardens. No question, as to which this would be relevant, appears in the present case. The rest of Harris’s proposition is no more than putting in express terms, ex majore cautela, what was already in Ellis’s letter. The terms of this were that, in consideration of Harris, as owner, signing the application to the port-wardens, through which alone the necessary permission to build the bulkhead on the wardens’ line could be had, Ellis agreed that the bulkhead should be built “ without cost or expense to you (Harris) either for labor or material.” Harris’s answer added that “ any supposed benefit to me shall not be alleged in mitigation of any damages .... by reason of your taking your right of way over my property.” It was argued that the expression, “ cost or expense, either for labor or material,” meant- only that Harris should not be called upon to pay out cash for the work. But this is too narrow a construction. It may be a convenience to be relieved from the necessity of a present outlay of money, but what substantial advantage is it, if the amount can be immediately afterwards deducted from money which would otherwise come to the owner of the land ? If he has to pay for the bulkhead in either way, it is cost and expense to him which the company indemnified him against. The situation was this: The company had no authority to put the bulkhead outside of its own right of way; good engineering suggested that it should be put on the water line, and this could only be done by the owner’s consent; the owner did consent on the agreement that it should be done without cost or expense to him. The substance of the agreement is that permission was given to build the bulkhead where [255] it would be most useful, but it was to be done without expense, direct or indirect, to the owner of the land. The fair business sense of the words is the legal sense; and to hold that he should pay for it by diminution of the damages for taking his land would be a violation of both. All consideration of the location of the bulkhead at the wardens’ line must be omitted in the estimation of the damages. The same reasons require that the questions to the experts to direct their attention to the effect of the construction of the railroad, including the necessary bulkhead, within the right of way, should have been admitted. It is true that the questions assumed a condition of circumstances which never in fact existed, but the agreement under which the location of the bulkhead was changed requires that the case should be treated as if these circumstances did exist. The presence of the sewer, even though without right, was a fact affecting the condition and value of the lot at the time of the taking by the railroad, and the evidence relative thereto was properly admitted. Whether the sewer was removed by the railroad company as a necessary incident or result of the construction of the road, or by the city in cessation of its trespass, was also a question of fact for the consideration of the jury, if there was any evidence to show that it was done by the railroad company; but the bill of exceptions, as printed, does not disclose any such evidence. The record in ejectment against the city was a step in establishing a trespass which it would be bound to discontinue, and had some bearing, therefore, on the question whether the sewer was in fact removed by the city. For that purpose it should have been admitted Judgment reversed, and venire de novo awarded.