Birch v. Lake Roland Elevated Railway Co.

Roberts, J., delivered the opinion of the Court. This case, in almost every material respect, is identical with the decision of this Court in Webster’s case, reported in 81 Md. 529. There was a judgment in favor of the plaintiff below (appellant here) for nominal damages, and from that judgment this appeal is taken. There are two exceptions contained in the record, the first of which relates to [370] the admissibility of the proof offered by the plaintiff, the other, to the rejection by the Court of the plaintiff’s five prayers, and to the granting of the plaintiff’s first and third prayers, with certain modifications made by the Court, and to the granting of the defendant’s (now appellee’s) first, second and fourth prayers. The essential facts are, that the plaintiff is now and has been for a number of years past, the owner óf a leasehold estate, for the term of ninety-nine years renewable forever, in a lot of ground and premises in the city of Baltimore, which is subject to an annual ground-rent of three hundred dollars. The lot is improved by a building, which has been used as a livery stable for a number of years, and is not in its existing condition adapted to any other purpose. The plaintiff has been accustomed to derive a large yearly rental from said premises as a livery stable. The defendant has constructed, maintains and operates an elevated and surface railroad, which passes in front of the plaintiff’s lot. The elevated position of the railroad is not directly in front of the plaintiff’s premises, but begins about twelve feet distant from the northern boundary of the lot. The railroad has been in operation since the month of May, eighteen hundred and ninety-three. The plaintiff offered to prove by Webster who was the appellee in 81 Md. 529, that shortly after the cars began to run over the defendant’s road, he and Webster, who was his then tenant, had modified the terms of the lease between them by reducing the rent from $1,200 a year, to $900 a year; that this reduction was made in order to retain Webster as his tenant, and in view of what they both believed would be the injurious effect of the construction and use of defendant’s road upon the rental value of the property as a livery stable. This offer constitutes the plaintiff's first exception. We think the Court below was clearly in error in refusing to permit ■ the testimony to be given. ■ It was after all and at most nothing but an expression of the opinion of Webster, and of the plaintiff, as to the effect upon the plaintiff’s lease, produced by the construction of the defendant’s road. We [371] do not perceive where in any respect it violated any rule of evidence, and the fact that it may have been somewhat insignificant in its effect, its weight was for the jury, and not for the Court. Coming then to the consideration of the various prayers which constitute the second exception, we think there are but two propositions in the determination of this appeal now necessary to be decided. Separate consideration of the prayers contained in this exception will not therefore be requisite. The first proposition, which we think untenable, is the granting of the plaintiff’s first prayer as modified by the Court. Without this modification made, the prayers correctly stated the law of the case, and should have been granted. Mr. Chief Judge McSherry, in delivering the opinion of this Court, in Mackenzie's case, 74 Md. 50, says : “ The true measure of damages in such a case as this, is not what a particular individual would be willing to charge for having the pole put up or remain ; nor the amount some other person might consider the rental value was depreciated for the purposes of his business ; but where the land of the plaintiff is not taken nor his soil actually invaded, the measure of damages, as adjudged in many cases, is either first, the extent to which the rental or usable value of the particular property has been diminished by the trespass or injury complained of; Balto. and Ohio Railroad Co. v. Boyd et al., 67 Md. 41 ; Wood, &c.,v. State, use of White, 66 Md. 61 ; or, secondly, the difference in the value of the property before the construction of the pole, and its value afterwards, if the depreciation in value has been caused by the erection and maintenance of the pole. Shepherd v. Baltimore and Ohio Railroad Co., 130 U. S. 426.” And in Webster’s case, supra, Judge Bryan said, “The plaintiff’s prayer claims damages for the diminution of the rental value of his leasehold property. His testimony was that before the building of the road the annual value of the property was twelve hundred dollars, and the construction and use of the road reduced this value so much, that it was worth nothing. His [372] landlord remitted three hundred dollars of the rent, leaving him bound still to pay nine hundred dollars a year. If the jury found that the usable value of the property was destroyed or diminished by the cause alleged, they were justified in finding a verdict for damages done. Great exception is taken to the language of the prayer. But it seems to us that its fair meaning is that the jury are to find the damages which the plaintiff sustained as tenant of the premises by the diminution of. its rental value. It could not easily be construed as meaning that they were to find the damages which the landlord had suffered.” The rule of law applicable in Webster's case, who was the then tenant of the plaintiff here, finds equal force and pertinent application in this case, where the original lessee is suing to recover damages for the injury done to his possession. The second proposition as contained in the plaintiff’s prayers to the effect that the plaintiff was entitled to recover for the diminution in value of his property ¿w and for a livery stable is undoubtedly correct. The property was originally built for such purpose and in its existing condition was available for that purpose only. He was therefore entitled to claim such damages as the evidence showed he had sustained in the diminished value of his property for that purpose, occasioned by the construction and use of the road. For the reasons assigned, the judgment below must be reversed. (Decided June 16th, 1896). Judgment reversed with costs, and new trial awarded.