Kossler v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Co.

Opinion by Mr. Justice Potter, This was a proceeding in the court below, to ascertain the amount of compensation to- which the plaintiffs were entitled, for certain property belonging to them, which had been appropriated by the defendant company, under the power of eminent domain. The land taken consisted of two tracts, the larger one, fronting on Steuben street, and having upon it an old [55] salt water well. The smaller tract was in the rear of the other, and consisted of a narrow lot, extending through to Main street; and, according to the testimony, it had been purchased for the purpose of affording access to the larger tract from the rear. The two pieces were, however, separated by a stream, Saw Mill run, with high, steep banks, requiring a bridge to admit of passage, and while such a bridge was contemplated, it was not built. So that the lots were not, at the time of entry upon the property, joined in such a way as to permit of connected use. The property was condemned for railroad purposes by the defendant company in July, 1900. A plant for the manufacture of salt was located upon the larger tract prior to 1891, but in that year it was burned down, and not rebuilt. No use was made of the salt water well after the fire, in 1891, although the plaintiffs claimed that they were about to rebuild the plant, and again operate the well, át the time their land was taken by the defendant company. Both parties to the present controversy thoroughly understand, and admit that the correct rule for measuring the damages, is to take the difference’ between the market value of the property as it was just before the entry, and the value of what was left afterwards. One of the elements alleged to contribute to the value of the property was the salt water well, and in estimating the value of the property at the time of the taking, this fact was, of course, to be taken into consideration. But the appellant alleges in the first assignment of error that the court below erred, in admitting against the objection of the defendant, evidence not merely as to the market value, or selling value of the well, at the time of the entry in 1900, but as to the production of salt water by the well in 1891, some nine years before. It was also shown that, in the opinion of the witnesses, the quantity and quality of salt water coming from the well was about the same in 1900. That it was sufficient to make 250 barrels of salt per day, if there had been a plant in operation for its manufacture. That; with coal at a certain price per bushel, and the water of a certain degree of strength, salt could be manufactured at a figure which would yield a good business profit; and that, ’ taking into account all these conditions, the well was of great value. [56] But the conditions upon which these estimates were based did not all exist. There was no manufacturing plant to convert the water into salt. Its establishment would have required the investment of a large amount of capital, and whether or not any profit could have been made in the business depended upon many contingencies. Obviously any estimate of the value of the well, based upon the possible profits arising out of the business of manufacturing its products into an article of merchandise, would require the consideration of elements altogether too remote and speculative to be admissible in the issue being tried in this case. The effect of such an estimate could only be to leave an erroneous impression upon the minds of the jury, and to give them an exaggerated idea of the value of the well. Its tendency was to emphasize unduly that which constituted only an element in the result they were seeking, which was, to ascertain the value of the property as a whole.j It is difficult at best in such cases to prevent the separate valuation of different items, and the making up of a verdict by means of adding them together. But the rule is well settled that the jury have no right to allow damages for distinct items, and reach a verdict in that way. This rule was clearly recognized by the learned trial judge, and was stated to the jury in the charge. But the zeal of counsel for the plaintiffs in the presentation of evidence led him to introduce testimony which went far beyond the line of competency in fixing the value of the property as it was at the time of its taking. ^That was the question in the case ; not its value as it might have been, improved as a manufacturing plant. In so far as the salt water well constituted an element of value, it was merely as contributing a certain volume of salt water. Whether or not this product, as such, had any market value, does not appear from the evidence. No use had been made of it for a period of some nine years, and there was nothing to show what its value was, except in connection with the erection of an evaporating plant, and its operation subject to the contingencies of business. It is suggested in the argument of appellee, that the proof of the value of the salt water well in this case is to be likened to that of an oil well. Be it so: the market [57] value of an oil well is not determined by evidence of tbe profits which can be made from the product of the well, by means of a refinery erected upon the spot, and operated with successful business skill. Its market value is its selling value as a well. In the present case, the market value of the salt water well, if it were shown to have had any, at the time of the taking, would be one of the elements entering into the value of the property as a whole. If the well was destroyed, its value would also be one of the elements of depreciation, to be considered in ascertaining the loss in the selling value of the whole property caused by the entry of the defendant company.j We are convinced that the first assignment of error should be sustained. The learned judge, in his charge; also instructed the jury as a matter of law, to consider the two pieces as a whole, in assessing the damages, and this instruction is, by the seventh assignment, alleged to be error. It does not appear from the evidence that the two lots have ever been used as a single tract. They were separated, for all practical purposes, at the rear by a stream with such high and steep banks as to forbid passage except by a bridge; and such a bridge was not built. The lot fronting upon Main street was not touched or interfered with in any physical way by the defendant. It would appear from the evidence that the possession of the Main street lot would, if the properties were connected by a bridge, add to the value of the Steuben street property ; but it is difficult to see how the Main street lot could, be affected by the taking of a part of the Steuhen street lot. Certainly such a result was not so clearly manifest as to justify the court in saying as a matter of law, that the two lots were to be regarded as one in the assessment; of the damages for the right of way, which passed over one only. The rule is as stated in Potts v. Penna. S. V. R. R. Co., 119 Pa. 278, and reiterated in Rudolph v. Penna. S. V. R. R. Co., 186 Pa. 541: “ In order that two properties having no physical connection may he regarded as one in the assessment of damages for right of way, they must be so inseparably connected in the use to which they are applied as that the injury or destruction of one must1 necessarily and permanently injure the other.” [58] As the evidence now stands, it is questionable whether there was sufficient even tó submit to the jury, within the rule just quoted. At any rate, there was not enough to support a binding instruction to regard the two lots as one property. The judgment is reversed and a venire facias de iiovo awarded: