Kersey v. Sch. River E. S. R.

Opinion, Mr. Justice McCollum: No complaint is made by the defendant company of the instructions to the jury on the question of damages, and our inquiry is limited to alleged error in the admission of evidence. The plaintiff was the lessee of a wharf property on the Schuylkill river, in Philadelphia, extending from the river to Twenty-fourth street. It was leased to him as a coal wharf and yard. Upon it he carried on the business of receiving, storing, and delivering coal for other parties, and of receiving, storing, and selling coal and sand on his own- account. The appliances used in the business, and necessary to carry it on, belonged to him. In January, 1886, the defendant company entered and located its road upon the demised premises, appropriating for that purpose a strip of land sixty feet in width, and dividing the property into two parts. The sheds, runs, and other appliances, indispensable to the business for which the property was leased, were partially destroyed by this action of the company, and the construction of new ones, adapted to the changed condition, became necessary in order to continue the business. A bridge, with a single span of sixty-eight feet, and an elevation of twenty-one feet above the railroad tracks, and a derrick, sheds, and runs of a corresponding height, were required. The company recognized the necessity for these appliances as the direct consequence of the location of its railroad, and admits that it promised the plaintiff to construct them, but excuses its nonperformance on the ground that it could not agree with him as to the details of the work. In other words, the plaintiff want [240] ed better structures than the company was willing to build, or considered necessary, in view of the probable duration of his leasehold. It was contemplated by the parties that the business should be continued by the plaintiff, and that he should have, as far as practicable, the same facilities for carrying it on that he had before enjoyed. It was the only business which his lease allowed him to establish there, and, if he abandoned it, his leasehold was worthless, because he could not sublet or sell it without the consent of his lessor. The company failing to provide the facilities it conceded he was entitled to, and had promised he should have, he constructed such appliances as were necessary for the continuance of the business, as it existed before the location of the railroad. The increased height of the structures increased the cost of raising the coal, and the breakage and waste in handling it. This additional expense and loss, together with the cost of the new appliances, he was allowed to prove on the trial of this issue. The company objected to this evidence, and now contends that the court erred in admitting it. It is well settled that the proper measure of damages is the depreciation in the market value of the property, caused by the location and construction of the railroad. But the elements to be considered in the ascertainment of this depreciation are as varied as the properties affected, and the uses to which they are applied. A specification of all these elements is impossible, because they cannot be anticipated, and many of them remain to be developed in the course of the litigation consequent upon the taking of property by eminent domain. In the ordinary case of the appropriation of land for railroad purposes, the opinions of witnesses who are conversant with the property, and the general selling price of land in the vicinity, are received on the question of its value unaffected by the road, and its value as affected by it. But this is not exclusive of other, and in some cases better, methods of proof. It may be stated as a general principle, applicable to cases of this sort, that whatever injuriously affects the property, as the direct and necessary result of the location of the road upon it, may be considered in the assessment of damages. In this case, the estate of the plaintiff was limited to a particular use. Its enjoyment, in accordance with the terms of [241] its creation, required that the appliances which bad been rendered useless by tbe entry oí the defendant company should be reconstructed at an elevation which increased the cost of raising and storing the coal, and increased the breakage and waste in handling it. We think these matters were properly received in evidence as descriptive of the injury inflicted, and tbe burden imposed on tbe property by the occupation of it for railroad purposes, and that they were for tbe consideration of the jury, not as specific items of claim, but as affecting market value. The specifications of error are dismissed, and The judgment is affirmed.