Galbraith v. Philadelphia Co. , 2 Pa. Super. 359 ( 1896 )

Opinion by

Willard, J.,

The appellee is the owner of a tract of land in the township of South Buffalo in the county of Armstrong. The appellant is a natural gas company engaged in the transportation and sale of natural gas. In 1894 the appellant constructed a twenty inch pipe line through the property of the appellee a distance of one thousand and sixty feet. Viewers were appointed to assess damages and on an appeal from their award the case was tried in the court of common pleas of Armstrong county, and under instructions from the court the jury rendered a verdict in favor of the appellee for $887.50.

The first eleven assignments of error are to the action of the court, in admitting and rejecting the testimony of witnesses on the question of damages. The correct rule, as often stated in estimating the damages to land taken under the right of eminent domain, is the difference in value of the entire property or tract, as a whole, unaffected as it was before the taking and as it is affected after the taking. The first ten assignments raise the question of the competency of the witnesses whose testimony was admitted under objections upon the question of damages. Before discussing the assignments, I propose to embody in this opinion the rules established by our Supreme Court in various decisions upon the question from Kellogg v. Krauser, 14 S. & R. 142, to Pennock v. Orescent Pipe Line Co., 170 Pa. 372.

“ Upon a scire facias sur mortgage, the witness acquainted with the premises was asked his opinion of the value of the mortgaged premises. The principal reason assigned by the plaintiff against this evidence was that an opinion of the value of land is not evidence, because it is not a fact. It is certain that such opinions are every day received as evidence, although it is true that an opinion is not strictly a fact; and it is difficult to conceive how the value of land can be proved without them. The witness may indeed prove the prices at which other lands in the neighborhood were sold; but that would not ascertain the value of the land in question, without a comparison between it and the land which was sold, as to quality; and quality is very much a matter of opinion. It is a kind of evidence so commonly admitted without dispute or objection that I have no doubt of its legality.” Tilgham, C. J., in Kellogg v. Krauser, 14 S. & R. 142.

“ The measure of damages is to be determined by a comparison of values immediately before and immediately after the taking. To enable a jury to determine this ‘ they are entitled to the benefit of the opinions of witnesses of skill and judgment, who have had opportunities to learn the value of the property in question.’” Woodward, J., in Brown v. Corey, 43 Pa. 495.

“ The market value of land is not a question of science and skill, upon which only an expert can give an opinion. Persons living in the neighborhood may be presumed to have a sufficient knowledge of the market value of the property with the location and character of the land in question. Whether their opinion has any proper ground to rest upon, or is mere conjecture, can be brought out upon cross-examination.” Sharswood, J., in Penna. & N. Y. R. R. Co. v. Bunnell, 81 Pa. 426.

“ Though the knowledge of a witness of the value of lands in the neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other sales or purchases in the real estate market, he has some knowledge upon which, to base an opinion, and the value of that opinion is for the jury.” Gordon, J., in Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426.

“ The estimate which a witness may make, it is true, is in some sense an opinion, but it is an opinion formed from actual personal knowledge of the facts affecting the subject-matter of the inquiry, and as a conclusion of fact, is admissible in evidence, from necessity, as the best evidence of which such a-question is ordinarily susceptible. In order therefore that a witness maybe competent to testify intelligently as to the market value of land, he should have some special opportunity for observation, he should in a general way and to a reasonable extent, have in his mind the data from which a proper estimate of value ought to be made ; if interrogated he should be able to disclose sufficient actual knowledge of the subject to indicate that he is in a condition to know what he proposes to state, and to enable the jury to judge of the probable proximate accuracy of his conclusions. He may hesitate in making an estimate of the value, he may say he does not know certainly, but, after due deliberation, may be able to express an opinion, or come to a conclusion, the accuracy of which, under all the evidence, is, of course, wholly for the jury.” Clark, J., in Pittsburg, Virginia & Charleston Railway Co. v. Vance, 115 Pa. 332.

“ A farmer living a few miles distant who has known a farm for forty years, seeing the greater part of it in passing and repassing upon the public road, has been upon it and at the buildings, and knows the general selling price of land in the neighborhood, is a competent witness as to the market value under the test laid down in Pittsburg, etc. Co. v. Vance, 115 Pa. 331: ” Curtin v. R. R. Co., 135 Pa. 20.

“ Expert testimony is not necessary to determine the value of the property. All persons familiar with the property, who have formed an opinion, are competent to testify as to its value.” Willlams, J., in Jones v. R. R. Co., 151 Pa. 31.

“In condemnation proceedings a witness who has known the property for ten or fifteen years and knew of sales of like property in the neighborhood is competent to testify to the market value of the property condemned.” McCollum, J., in McElheny v. Bridge Co., 153 Pa. 116.

“ An essential test of the competency of witnesses called to give an opinion in respect to the market value of the land in condemnation proceedings, is that they should affirmatively appear to have actual personal knowledge of the facts affecting the subject-matter of the inquiry. Such witnesses should have a sufficient knowledge of the market value of the land, estimated upon a fair consideration of the land, the extent and condition of its improvements, its quantity and productive qualities, and the uses to which it may reasonably be applied, taken with the general selling price of lands in the neighborhood at the time.” Stebbett, C. J., in Michael v. Crescent Pipe Line Co., 159 Pa. 99.

“ A witness is competent to testify as to the damage caused by the construction of a pipe line across a farm, where it appears that he lived upon an adjoining farm and knew the one in question for over fifty years, knew the character and productiveness of its soil, the kind and quality of the improvements on it, the extent and sources of its water supply, and the prices at which lands in the neighborhood were held and the prices at which they had been sold prior to the construction of the pipe line and up to within six months of the trial; but one who has never seen the property, nor even been in its neighborhood and knew of but one sale in the neighborhood, is not competent for that purpose.” Sterrett, J., in Mewes v. Crescent Pipe Line Co., 170 Pa. 864.

“ In an action to recover damages for injury caused by the location and construction of a pipe line across a farm, a witness is competent to testify as to the damage who has knowledge of the land, and has knowledge of the prices brought by other lands in the neighborhood which had pipe lines across them.

“ A witness who was not on the ground when the work was done is not competent to testify as to construction damages caused in the laying of a pipe line: ” Pennock v. Crescent Pipe Line Co., 170 Pa. 372.

A. W. Galbraith was the owner of the land and had lived on it for ten or eleven years. He was clearly a competent witness as to the extent and amount of the damage, and on the authority of Wilson v. Equitable Gas Co., 152 Pa. 566, it was not error for the witness to state that the land was ripe or right for building purposes.

Joseph Atkinson testified that he had lived within half a mile of the property for fifty-one years, was well acquainted, with the land, knew of the construction and knew of sales of land in the neighborhood. He was clearly competent under the ruling in Mewes v. Crescent Pipe Line Co., supra.

The testimony of David Wallace as to ridges and depressions left on the property in the construction of the pipe line, in connection with the testimony of the appellee, was admissible; it tended to prove the effect of the construction upon the property.

Robert Miller, a witness who was permitted to give his opinion on the question of damages, testified as to Iris knowledge of the premises as follows :

Q. Mr. Miller, where do you live ? A. I live at Freeport. Q. How long have you lived there ? A. A little over four years. Q. Do you know this property of Mr. Galbraith. A. Yes, sir. Q. How far do you live from it? A. Well, now I couldn’t tell you the distance it is, not half a mile, I don’t think. Q. Are you acquainted with the value of Mr. Galbraith’s property there, and the property in the neighborhood ? A. Property sells at various prices, as you sell to different parties ; it is pretty hard to come to a value of it until you close the bargain with the man. Q. Are you acquainted with the value of the land in the neighborhood of Freeport, in the neighborhood of Mr. Galbraith’s land? A. Well, no, there has not been much land sold there that I know of, neither do I know of any farms lately being sold close by. Q. Mr. Miller, will you state to the jury what damage was sustained by Mr. Galbraith by injury done to the surface and the construction of this line, including the injury to the fences and the depreciation of the value of the farm as a whole by the entry and appropriation by the gas company of this land ? What in your opinion was the damage done ?

Mr. Buffington : The question is objected to as incompetent and irrelevant for the reason that the witness has not shown sufficient knowledge.

The Court: If he is acquainted with the value of it, it will be all right.

Q. By Mr. Patton : Are you acquainted with the value of Mr. Galbraith’s property? A. I answered that question. Q. Are you acquainted with it? A. Well, I say some parties would value it at more than others; you cannot know until you get your purchaser; there has no farms been sold adjoining it that I know of. Q. Well, you know its value, do you, as well as other people would know it? A. Well, taking it as a piece as a whole I could not know what it was worth until I could know what it would sell for.

Mr. Buffington : We object.

Mr. Patton: Mr. Miller, what is the value of Mr. Galbraith’s property in your opinion ?

Mr. Buffington: That is objected to.

Mr. Patton: That is for the purpose and only for the purpose of showing that the witness knows the value of property.

Mr. Buffington: Objected to as incompetent and irrelevant, the witness not having testified to sufficient facts to show sufficient knowledge.

The Court: We will overrule the objection and give you an exception and seal a bill.

Mr. Patton: What, in your opinion, is the value of Mr. Galbraith’s property now?

Mr. Buffington: That is objected to as irrelevant.

A. It is a hard question. Q. I am asking just your opinion of it. A. My opinion of it is that it might be sold for 1150 an acre. From $100 to $150, just as you would get your buyef. Q. Now, Mr. Miller, will you answer my other question; whal was the actual damage done to the surface of Mr. Galbraith’fe land in the construction of this pipe line, including the injury to the fences and the depreciation of the farm as a whole by the entry and appropriation of this land by the gas company ?

Mr.. Buffington: We make the same objection as made tó the same question to the witness preceding the last witness.

The Court: We will make the same ruling and the same bill sealed. '

Q. What is the damage done to Mr. Galbraith ? A. I would suppose it was $1,000 damage and might be more.

The testimony of this witness should have been excluded. His opinion was formed on no sufficient knowledge of thé property or its value, as his answers clearly demonstrate.

L. W. Patterson testified that he was well acquainted with the property, had known it all his lifetime and knew the value of land in the immediate vicinity. His testimony was properly admitted.

Thomas Patterson was clearly a competent witness. He testified that he knew the land and had been acquainted with it from boyhood, knew it all over, knew its general value as well as any other property. No bill appears to have been sealed to the exception taken to the admission of the testimony of this witness, but the language of the judge might have misled the appellant’s counsel. In our view of the competency of the witness it is immaterial whether the answer of the judge was considered the sealing of a bill or not.

Thomas Montgomery, one of the witnesses, testified that he had as good an idea of land in Armstrong county as the general farmer. He examined the land as a viewer. We do not think the witness was incompetent to testify, but we do think his answer to the question as to the amount of damage was not responsive, and would have probably been stricken out had a motion to that effect been made.

To the testimony of James Douglass there was no objection or exception. The ninth assignment of error will therefore not be considered.

The testimony of Dr. T. H. Allison was not objected to on the ground of the incompetency of the witness; he was allowed to engage in a rambling conversation, and express his opinion on various irrelevant subjects, all of wlfich was improper and undoubtedly would have been eliminated from the record had a motion to that effect been made to the court.

The appellant offered to show by Phillip A. Lloyd (a person of eleven years’ experience in the natural gas business), the probable lasting qualities of the Armstrong county gas fields, for which the pipe line was constructed. Just how he proposed to show this was not stated, nor is it apparent from the record. The evidence was promptly and properly excluded.

In his charge to the jury the trial judge in commenting upon the testimony, told them that Joseph Atkinson had testified that he knew the value of land in the neighborhood and had stated on the witness stand that the damage to this property by reason of the pipe line going through it was $1,500. Unfortunately the testimony of Mr. Atkinson as reported did not warrant the judge in his statement. Mr. Atkinson did not so testify. In long trials the jurors are apt to forget the testimony of witnesses. They are not as apt however to forget the words of the judge delivered to them just before retiring to their room for con-' sultation, and it is to be regretted that the testimony of Mr. Atkinson was incorrectly stated to the jury. It was a serious error and will have to be corrected by another trial of this case. Equally erroneous was the statement of the judge in his charge to the jury as to the testimony of Robert Miller, Thomas Montgomery, James Douglass and Dr. T. H. Allison. These witnesses did not testify according to the reported testimony as stated by the judge in his charge. The statement tended to and doubtless did prejudice the appellant’s case in the court below.

Jurors not only take the law from the court, hut when the testimony of the witnesses is commented upon, as in this case,they naturally rely to a great extent upon every word uttered by the trial judge and take his version of the testimony. It is incumbent upon the judge to exercise the greatest care and arrive at substantial accuracy in his comments on the testimony before the jury. We do not think the general charge open to the objections contained in the last specification of error. The fifth, twelfth, thirteenth, fourteenth, fifteenth and sixteenth assignments of error are sustained. The others are all overruled.

The judgment is reversed and a venire fa ias de novo awarded.