Allentown & Coopersburg Turnpike Co. v. Lehigh Valley Traction Co.

Opinión by Mr. Justice Fell, By virtue of authority conferred upon it by the seventeenth section of the act of May 14, 1889, the Lehigh Valley Traction Company entered upon and used a part of the road of the Allentown & Coopersburg Turnpike Company by laying a double track and running its cars thereon. This use was subject to the duty to make compensation therefor to the owners of the turnpike in the manner fixed by the fourteenth section of the act. The parties in interest being unable to agree, a jury was appointed to assess the damages. The case came to trial in the common pleas on an appeal from the award of the jury of view, and is here upon exceptions to the rulings of the court in relation to the measure of damages. The defendant’s contention is that it is liable only for the damage caused by the laying of the tracks, and not for the loss of profits resulting from the diminution of tolls, and that the full measure of damage is the additional expense which the plaintiff has .incurred or may hereafter incur in keeping its roadway in repair by reason of the tracks being laid upon it. The contention of the plaintiff is that it is entitled to recover compensation for all losses which are the direct and immediate result of the act of the defendant in taking possession of a portion of the road and laying its tracks and running its cars thereon, and that the measure of damages is the difference in value of the property of the turnpike company as a whole before and after the construction of the railway. The learned judge adopted substantially the plaintiff’s view, but he carefully excluded from the computation of damages any loss of revenue from tolls occasioned by the fact that new and improved facilities for travel were furnished, and that persons who would otherwise have driven over the turnpike rode in the cars to and from points on the line of the railway. Nor was the jury allowed to consider as an element of damage the loss of tolls-caused by the diversion of travel from the turnpike by reason of the increased danger on the city street with which it connected and with which it formed a continuous route for travel. The measure of damages was limited to the direct and immediate consequences of the occupation and use. The seventeenth section of the act by which the defendant [283] derives its authority to enter upon the turnpike provides “ that before such passenger railway company shall enter upon and use any such turnpike or turnpikes in the laying of tracks and the .use of the same it shall make compensation to the owner or owners thereof for such occupation and use of such turnpike or turnpikes in the mode provided by the fourteenth section hereof.” The fourteenth section provides that in the event of the parties being unable to agree as to the amount of compensation to be paid, the court of common pleas shall appoint a jury to assess the damages. The compensation secured by the act is compensation for the occupation and use of the property of the turnpike company by the railway company, and it includes all injury done to the property which is the immediate and direct consequence of the occupation and use. The damage is not measured by the additional cost of maintenance of the roadway only, but by the depreciation in value' of the property as a whole resulting from the occupation and use and caused by the presence of the tracks and cars. If these were such a menace to travel as to cause those who would otherwise have driven on the road to abandon its use in whole or in part they directly affected its earning capacity, diminished its revenue and depreciated its value as a property. The plaintiff was permitted to show the decrease in revenues and the depreciation in the market value of its capital stock as evidence of the damage sustained. The admission of this testimony was in harmony with the rulings in Montgomery County v. Schuylkill Bridge Co., 110 Pa. 54, in which it was said: “ The property taken was of a peculiar character, and can hardly be said to have a market value. It was a bridge and the corporate franchises of the company owning it. There are no sales by which it can be compared, and a market value in the fair sense of the term ascertained. . . . The property and the franchises of the bridge company are represented by its stock, and the market value of the stock may be said to represent the market value of the property taken, as nearly as it can be ascertained.” This is as true where there has been a partial taking as where the whole has been taken. The nature of the property made it difficult to apply the rule for the assessment of damages, and especially difficult as a part of the loss of income [284] was doubtless due to competition, and a part to the increased danger to travel within the city limits, but the rights of the parties were fully explained and guarded in the very clear and able charge of the learned judge before whom the case was tried. The judgment is affirmed.