National Docks & New Jersey Junction Connecting Railway Co. v. Pennsylvania Railroad

Van Syckel, J. On the trial below, the plaintiffs in error offered evidence to show the cost of building abutments and bridges necessary to make the green strip available for [266] additional tracks or other uses. This evidence was excluded and an exception taken, upon which error is assigned. From the evidence and exhibit in the cause, the jury had a right to find that this strip of land could not be made available for beneficial use by the Pennsylvania company without filling it up to the grade of existing tracks. Before the crossing by the National Docks, earth-filling was only necessary. After the crossing is taken, it will be necessary to construct abutments and bridges to retain the earth-filling, which would otherwise fall upon the tracks to be constructed by the National Docks, and obstruct their use. In the judgment of this court, the evidence offered and overruled was competent and necessary to enable the jury to estimate the damages sustained by the Pennsylvania company by the crossing of that strip by the National Docks road. It was a question of fact for the jury to settle, what the value of that strip was to the Pennsylvania company for any purpose to which it might lawfully and reasonably appropriate it. If the jury should-find that the cost of constructing abutments and bridges, or the cost of any less expensive mode which might be devised in order to utilize the said strip after the taking, was in excess of the value of the strip after such redemption, then the jury should say that any such mode of attempting to redeem and. appropriate the said strip is unreasonable, and should not be resorted to. The consequence of such a finding would be that the said strip of laud would be rendered comparatively valueless when the crossing is completed, because it would cost more to make it available to the Pennsylvania company than it is worth. In that case the Pennsylvania company would be entitled to the value of the strip when redeemed, less the-cost of redeeming it, if the crossing was not taken. But if the-cost of abutments and bridges, or some other effective but less expensive mode of utilizing the strip after the taking, did not exceed the value of the scrip after it is redeemed, then the Pennsylvania company would be entitled to the difference between the cost of such mode of redeeming it as must be resorted to after the taking and the cost of redeeming it before the267 taking, if the former exceeds the latter. The least expensive-mode of effecting the redemption must be taken into account. In this view the evidence offered was competent, and it should have been received and submitted to the jury with proper-instructions. If the strip, provided no crossing was taken by the National Docks road, would be more valuable without filling up (taking into account the cost of filling), then the question would be what the value is, and whether by the taking that value was impaired, and to what extent. In such case the cost of filling and of abutments and bridges-would not enter into the computation. All these are questions of fact to be submitted to the jury. The rejection of the evidence offered was erroneous, and the judgment below" should therefore be reversed.