H. C. Frick Coke Co. v. Painter

Opinion by' Mb. 'Justice Mbstbezat, This case was most carefully tried by the court below, and every point raised by the learned counsel was not only considered and determined, but elaborately discussed by the court. The charge was exceptionally clear and comprehensive, and reviewed at length all the questions arising in the case. The investigation of these questions by the court as well as by the learned counsel was painstaking and exhaustive, and none of the many cases on the subject in this court escaped their attention and consideration. In his answer to the points for charge submitted by the plaintiff, as well as in the charge itself, the trial judge followed the law as enunciated in the numerous cases on the subject decided by this court. We are satisfied with the result of the trial; and the elaborate discussion of the questions by the learned judge, being in line with our own dicisions,. relieves us of the necessity of referring specifically to the assignments of error. The necessity for the lateral railroad on the route selected by the petitioner was a question for the jury under proper instructions by the court. The nature and character of the necessity contemplated by the statutory provisions in order to .enable the petitioner to secure the benefit of the legislation was correctly and fully explained to the jury. This was done not only .in the general charge, but also in answer to the points for charge. The plaintiff’s contention, however, is that in submitting the question of the necessity for the road to the jury, the court erred in holding that they could not take into consideration ■that a better, cheaper and more convenient route might have been selected. But this position is clearly untenable. The ■Act of May 5,1832, P. L. 501, Purd. 1816, and its supplements, require the petitioner or petitioners for a lateral railroad 'to “ survey and mark such route as he or they shall think proper to adopt; ” and thereupon the viewers, and subsequently on [485] appeal, the court and jury shall determine the necessity for the road, and the damages sustained by the owner of the intervening lands by its construction and use. This undoubtedly excludes from the consideration of the viewers and the jury, any other route as bearing on the necessity of the location adopted by the petitioner. There may be a bettor and less expensive route; but that is a matter entirely with the petitioner and not with the landowner, and - cannot avail the latter in the determination of the necessity for the selected route. The learned counsel for the plaintiff concede that the ruling of the court below on this branch of the case is in harmony with the law as laid down by this court in Hays v. Risher, 32 Pa. 169, but they deny the soundness of that decision. The argument of the learned counsel, however, has not convinced us that the reasoning of the court is unsound as alleged ; on the contrary, we think it logical, and the conclusion fully warranted by a fair interpretation of the statute. Under the pleadings and evidence in the case, we are not convinced that the learned court erred in its rulings on the question of damages. The statement avers that the plaintiff is the owner in fee of a large tract of land over which the proposed railroad will pass for a distance of 250 rods; that a considerable portion of the land is underlaid with the Connellsville vein of coking coal, of especial value to the plaintiff company, which is engaged in mining and operating the same from several large works in the vicinity thereof; that the surface of the land is of good quality and productive; that a certain portion of it is especially adapted as a site for a reservoir for the collection and storage of water, and has been utilized for that purpose by the plaintiff. In the general charge the court called the attention of the jury to the manner in which the plaintiff claimed that its property would be changed and affected by the location and construction of the proposed road; that it was essential that they consider all the elements of depreciation, and then determine “ whether or not the property, as a whole, has been depreciated in the market.” The learned judge directed the jury’s attention to the reservoir, its present and prospective use and value to the plaintiff, and the alleged curtailment of its capacity, and thereby the depreciation of the value of the land by the construction of the road on the plaintiff’s property. [486] He also called attention to the alleged pollution of the water flowing into the reservoir, by the construction of the road, as an element of damage to be considered by the jury. The interference in the mode of using the land for mining purposes, the Cost of fencing and the division of the land, were likewise adverted to as proper elements of damage. In short, the charge required the jury, in ascertaining the damage sustained by the plaintiff, to consider everything that injuriously affected the plaintiff’s property. It will thus be observed that the trial judge’s instructions followed the well established rules in cases of this character that the measure of damages was the difference in the market value of the whole property immediately before and after the construction of the road as affected’ thereby. The land declared in the statement to be affected is “ a large tract of land .... traversed by the proposed road.” It seems that prior to its present ownership, this land was divided into two separate farms owned by different parties. The court below, however, very properly treated them as one tract in the hands of the plaintiff in assessing the damages occasioned by the construction of the defendant’s road. The contention of the plaintiff is that the benefits and damages should have been considered not upon this property only, but upon this and other property of the plaintiff, together known as the Mammoth plant. It is alleged that the plaintiff’s testimony shows that damages were claimed because of the injury to the Mammoth plant in its entirety and that such was the proper rule to be observed in assessing the damages in this case. The trial judge however rejected this view because it was not supported by the .pleadings, and the trial had proceeded upon the theory that the damages were to be assessed for the land formerly known as the two tracts. We cannot say that this was error. The statement does not show that the land claimed to be injured is connected with or a part of the Mammoth plant. The averment that the coal under the tract is mined and operated from works in the vicinity of the tract, and that the reservoir is the only available supply for several large works of the plaintiff, does not show that it has any connection with the Mammoth plant. The questions raised by the assignments of error having been ' satisfactorily disposed of in detail by the court below, we need [487] not discuss them further. We are of opinion that the appellant has failed to convict the court below of error, and the assignments are therefore overruled, and the judgment is affirmed.