Weinschenk v. Western Allegheny Railroad

Opinion by Mr. Justice Mestrezat, The assignments allege error in the admission of certain testimony. The first assignment cannot be sustained. It was clearly competent for the plaintiff to prove, as ruled by the trial judge, what uses other than those named by the witness the waters of the spring could reasonably be put to, considering the character of the land and the purposes for which it was used or adapted. The purposes for which the waters of the spring could be utilized on the land, as testified by the witness, were not “mere possibilities,” as claimed by the appellant, but, if the witness was credible, the waters could be used advantageously for the purposes for which the land was specially adapted. It was competent to show the volume and character of the water of the spring, that it was pure and fit for domestic use, and that it could be used by anyone occupying the premises for gardening, especially in view of the fact that it appeared the owner made such use of the land. The plaintiff was entitled to show any and every purpose for which the water could and would reasonably be utilized on the land by the owner as it would enhance the market value of the premises. It is not a question whether the spring had previously been used for any specific pur-r pose, but whether the owner could utilize it advanta [448] geouely for such purpose in using the land for what it was reasonably adapted. The contention of the appellant that the testimony complained of in the second assignment was not admissible because it did not appear that the plaintiff was previously compelled to procure water outside the premises for the purposes for which he had formerly used the waters of the destroyed spring cannot be sustained. Prior to the destruction of the spring by the defendant company the plaintiff had no occasion to obtain or use other water than the water on his own premises. It was therefore competent for him to show that in the construction of its road, the defendant company had interfered with or destroyed the spring, and how and where he was compelled to obtain water for the purposes for which he had previously used the waters of the spring. It is true, as argued by the appellant, that the measure of the plaintiff’s damages is the difference in the market price or value of the entire tract of land before and after the appropriation by the defendant as affected by the appropriation. In order, however, to ascertain the value of the land after the appropriation, all the elements of depreciation must be considered by the jury. We have held that the jury should consider any burden cast upon the land by the construction of the railroad, the manner in which the road cuts the land, diagonally or otherwise, the inconvenient shape resulting from the construction of the road, the depth of excavations and height of embankments, the obstruction or complete interruption of access to public or private ways, the inconvenience in crossing the railroad and interfering with crossings already established, the division of the tract into different parts so as to prevent the passage of persons or stock from one part to the other or, where the passage is possible, the danger in making the passage, and that the manner of the construction of the road diminished the business of the plaintiff’s mill. It is therefore apparent that the appellant’s objection, covered by the third assignment, that [449] the plaintiff could not show the manner in which the road was constructed through his land is not well taken. It is true, as argued by the appellant company, that the manner of constructing the road was to be determined by the company, but the plaintiff was entitled to compensation for the injury done his land by such construction and the amount of the damages was for the jury. We cannot sustain the fourth assignment. The witness had been examined in chief at some length and had clearly disclosed his competency and had estimated the difference between the market value of the land before and after the appropriation by the company. On cross-examination he disclosed the fact that in making his estimate he had taken into consideration certain elements of damage which he should not have considered. The learned court directed the witness to eliminate the improper matter from his estimate of the damages and said: “You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages.” The plaintiff’s counsel then asked the witness whether, after eliminating the objectionable item, he would reduce the damages on that account, and the witness replied that he would not. The defendant’s counsel did not further cross-examine the witness to ascertain his competency but moved to strike out his entire testimony. It would have been better possibly if, after the court had instructed the witness, the plaintiff’s counsel had renewed his question and permitted the witness to give the total damages which he regarded the plaintiff as having sustained by reason of the appropriation of the land. The witness having known the land for eighteen years, seeing it daily, and being familiar with the character of the soil, the improvements made by the plaintiff’s intestate and the use made by him of the premises, was so clearly competent to estimate the damages that we are not convinced that the case should be reversed because of the form of the question asked by the plaintiff’s counsel, especially in view of the fact that [450] considering all the witness’s testimony the answer would probably have been the same .had the form of the question been different. The judgment is affirmed.