Comstock v. Clearfield & Mahoning Railway Co.

Opinion bv Mr. Justice Dean, Plaintiff was the owner of two adjoining lots in the borough of Curwensville, Clearfield county. Upon one lot, there was a dwelling house. In 1892, defendant located its railroad [588] through these lots; it passed along an adjoining alley on the south side of the lots and appropriated of her ground a strip about twenty-five feet at one end, increasing to forty-seven feet at the other; the quantity taken, was about 2200 square feet. The dwelling is about one hundred and twenty feet from the railroad. Viewers having been appointed, and damages assessed, the company appealed to the common pleas, and there was a trial by jury, who gave a verdict for a small amount more than the award of viewers. The defendant, being dissatisfied with the verdict, now appeals to this court, assigning eighteen errors to rulings on offers of evidence and charge of the court below. The thirteen assignments of error to the ruling of the court on admissions of evidence, can be best considered after a determination of the averments of error in the law. The defendant’s fifth prayer for instruction, is as follows : “ The true measure of damages in this case, is the difference in the market value of the property when the defendant appropriated the land, and the market value when the road was completed, and this cannot be increased, by taking into consideration annoyance from smoke, noise, dust, or jarring of the house by passing trains.” To this, the court answered: “We affirm those points, with this qualification. As we have already stated to you in our general charge, you must estimate these damages as of the time the property was taken. Estimating them at that time in the manner in which we explain to you in our general charge, you arrive at how the market value was affected by the construction of the railroad, the difference between its market value before and afterwards, and having arrived at the damage in that manner, you cannot increase that, by taking into consideration annoyance from smoke, noise, dust or passing trains in the operation of the road. What they may have done to carry on the operations of that road, are immaterial; the damages, — as before stated, — are to be ascertained as of the time of taking, and when the damages are thus assessed and ascertained, the railroad cannot thereafter be held liable for the ordinary and lawful operations of its road, even though it does work annoyance to the property owners along its line, including this plaintiff.” [589] In accord with the same idea, the court said to the jury in its general charge, they were not to consider any injury resulting from negligence on part of inefficient or negligent employees, or use of improper spark arresters, or smoke or dust arising from negligence, but: “You are to consider the damages which are likely to arise from the ordinary operations of the road in a proper manner. Among these, are the ordinary danger from fire, smoke, cinders, shaking of surface, and noise resulting from the running of engines and trains upon its sidings and tracks upon plaintiff’s property, including also the value of the land taken.” In applying the legal rules in the estimate of damages, the situation of the property in the particular case must be considered ; if defendant had located its road on a one hundred acre farm, and appropriated from the one corner of it 2200 square feet of land, while the farm dwelling and improvements were located half a mile distant on another part of the tract, the value of the farm, as affected by the construction of the railroad, would probably have been the same, less only the value of the land actually taken; the house would not have been jarred by moving trains; there would have been no appreciable diminution of value by reason of the ordinary operations of the railroad. But here, the road was located on the adjoining alley and diagonally across plaintiff’s town lots, one hundred and ten feet from her dwelling. The argument of appellant is, that because the jarring-, smoke, noise and dust of passing trains was incident to the ordinary operations of the railroad, therefore they could not be considered by the jury. But the act itself directs: — -1. That the quantity, quality and value of the land taken, shall be first considered, and 2. Then a fair and just comparison of the advantages and disadvantages shall be made. And we held in Hoffer v. Railroad Co., 87 Pa. 224, that this included damages purely consequential. The jury is not to estimate this class of injuries, item by item, as they estimate the quantity, quality and value of the land taken ; are not to estimate a certain sum in dollars for each, and add them all together, and thus reach the amount of damages from this source, but they have a right to consider from the proximity of the road to the building, that such disadvantages as these, arising from the ordinary and lawful operations of the road, [590] will necessarily affect unfavorably the value of the property. In Railroad Co. v. Hill, 56 Pa. 464, we held that loss of custom to a flour mill could be considered in the estimate of damage, because the location of the road with reference to the mill had rendered access to it dangerous to horses and teams. In Gilmore v. Railroad Co., 104 Pa. 275, we held, that while distinct injuries sustained after the completion of the road cannot be included in the estimate of damages, yet in making up their verdict the jury had a right to consider all the injuries which would probably and naturally result from the reasonable and usual operation of the road, and that evidence of the proximity of the buildings to the railroad and passing cars was admissible. In Railroad Co. v. McCutcheon, 18 W. N. C. 527, the court below instructed the jury thus: — “How much is the property worth, or how much would it have yielded during the term, without the railroad, and how much less will it yield, in all probability, so far as we can foresee, under the testimony, with the railroad there and operated in the ordinary way, locomotives running over it, shaking the buildings, making smoke and dirt, and affecting by this annojrance the value of the property ? ” This was held not to be error, and the judgment was affirmed. And so in numerous cases, the same principle is adopted. To so hold, is but to enforce the constitutional mandate, that “Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements.” If the necessary consequence of the construction of this railroad, and its operation upon this property, was the depreciation of value, then the plaintiff was injured, and was entitled to compensation in the amount of her injury. And this is the fair construction of the law, as declared by the court below; it eliminated from the estimate any consideration of damages not the necessary consequence of the construction and operation of the road in the particular place, that is, in proximity to the building. This was not permitting the jury to include in .their estimate distinct damages which would be sustained after the completion of the road. The injury had then been sus [591] tained, by the mere fact of construction, if the property was then worth less than before. It was not the ease of Gilmore v. Railroad Co., supra, where the offer was to prove distinct injuries by fire, after construction and operation of the road. We think, under the settled adjudications, the court correctly declared the law of the case. This, in substance, disposes of defendant’s last five assignments of error, which allege error in the charge and answers to points. From first to thirteenth, inclusive, error is assigned to the admission of evidence offered by plaintiff. These offers bore distinctly on how the property was affected by the location of the road upon it, and its depreciation in value by reason thereof ; the evidence tended to show, that by reason of the proximity of the road to the building, the annoyance from shaking by passing of heavy trains, and from dust, cinders and smoke, was very great, and as a consequence, the building was undesirable as a residence, and the value of the entire property thereby was greatly lessened. The evidence as to the construction of the water tank was offered, not as ground for damage by such construction, but that its location with reference to this property multiplied trains at that point, and a more frequent use of the roadbed on plaintiff’s property was the result. The water tank, located as it was, formed part of the construction and operation of the road through plaintiff’s land. We can imagine the lawful construction and operation of a railroad through a small property, which would absolutely destroy its value as a residence, and for most other purposes. Certainly, the owner in such case is not compensated by the price of the few square feet occupied as a roadbed ; nor is he compensated by a like small sum, if his property outside of the roadbed be seriously injured and lessened in value. We do not think any of the assignments of error can be sustained. The judgment is affirmed.