City of Philadelphia v. Linnard , 97 Pa. 242 ( 1881 )

Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

In such case as this the rule for measurement of damages is settled by a uniform current of decisions, taking its rise in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 410. The damage is to be estimated as of the date when the injury was complete, and the land-owner had a right to receive compensation ; the property to be valued without reference to the owner, or the actual state of his business; the true measure of damages being the difference between the market value of the land as affected by the taking of part for the street, and such value as unaffected. What would Mrs. Linnard’s land have sold for at and immediately before the street was widened at its front ? What would it have then sold for as affected by widening the street? The difference is the sum to which she is entitled. Many things may bo considered as elements of damage, such as inconvenience to occupants of the property caused by recession of the front, and the difficulty of procuring constant tenants. These aid in fixing the value of the property. They are not to be considered with reference to a particular business. Though the property were ruined for its former use, if worth as much or more for another use, the owner suffered no damage for which she can recover. The pivotal inquiry is as to how much the property, as it was when injured, was diminished in value. The lot with its improvements was worth a certain sum; to estimate the loss by referring to more valuable improvements subsequently constructed would be error. For instance, if the new building would rent for more than the old, the new would be a false basis from which to estimate rents or value of the lot as affected by widening the street.

The learned referee appears to have clearly apprehended the rule for measuring damages. Wo do not think he intended to decide that any elements of damage such as inconvenience to occupants, and decrease in rents, should be considered in other light than as bearing on the question of value of the land at the' time of the injury. But he refused to regard “the conjectural appreciation in value by reason of a possible recession of either or both the adjoining buildings at some indefinite time in the future.” For this refusal, he rested on P., V. & C. R. R. Co. v. Rose, 24 P. F. F. Smith 362, and Watson v. P. & C. R. R. Co., 1 Wright 469. In the former case, the company had proposed to make improvements by grading and improving the street, unconnected with the finishing of their railway, and it was ruled that the case should be considered without reference to the proposal. To make such improvement, the company was not bound by law or contract. It was a naked proposition, worthless in itself, and to such as that the decision relates. In the other case, the point was upon an offer of testimony by the plaintiff respecting the value of the land as injured, and as it would be if uninjured. After repeating the rule as to damages, Strong, J., said, “ His attempted mode of proof of the difference between the two values was entirely inadmissible. His offers all had the same fault. They proposed to submit to the jury the conjecture of witnesses as to what the plaintiff’s lands would be worth, or what their market value would be, at some unknown future time, when the railroad shall have been constructed. Such testimony does not rise even to the standard of an opinion. It is a mere guess with no substantial foundation upon which to rest.” A glance reveals that the language applies to an absurd offer of evidence, and does not mean that testimony showing increased value of the land because of the railroad, or advantages arising from it, shall be excluded. The inquiry was as to the effect of the injury upon the value at the time, not how the value might be affected in the future. Any fact which affects the value of the land at the time of the injury is admissible. Thus, in the New-ville Road Case, 8 Watts 172, the court remark : “And the viewers are presumed to have taken into consideration, as it was their duty to do, as well the possibility of the road reverting back to the proprietors by being vacated at some'future time; as the rights left to him under and over the highway in subservience to the public passage.” Upon the vacation, a possible but uncertain event, the road reverts, and this is to be considered in appraising damages. Under the operation of the Act of April 28th 1870, Pamph. L. 1291, it is reasonably certain that between the two rivers all buildings will be removed from the old line of Chestnut street. When this shall be accomplished is uncertain. When done, the very inconveniences and difficulties arising from the recess of Mrs. Linnard’s property will cease. How can the value of the property be determined, or the amount of damages, without considering the fact that all buildings erected subsequent to the Act of 1870, must be as far from Market street as the one on the lot in question ? The first specification of error is sustained.

An act to provide for the submission of civil cases to the decision of the court, and to dispense with trial by jury, was enacted April 22d 1874, Pamph. L. 109. On the 14th of May following (Id. 166), an act was approved to provide for the submission of civil cases, by agreement of the parties, to a referee learned in the law, which can be readily understood by’ reference to the prior Act of 22d April. It enables the parties, by written agreement, to submit any civil case to the decision of a person learned in the law, in like manner as it could be submitted to the decision of the court. The referee derives his authority by said agreement, not by the court’s appointment, and “ so far as relates to the case and the duties he is to perform as referee, shall, after acceptance of his appointment, be subject to the same control by the Supreme Court as the court below would be in regard to a cause submitted to them in like manner.” In all things pertaining to the trial and decision of the case he shall have the powers and perform the duties that would belong to the court under a like submission.

The decision shall be filed of record, “ and in like manner and to the same extent shall be subject to exceptions and writ of error or appeal,” as in cases submitted to the court. The judgment entered upon his decision shall be considered the judgment of the court, and thereafter the referee’s power is ended, unless the case be referred back to him by the Supreme Court. On writ of error or appeal, the Supreme Court may remit the case for further hearing before the referee, or make such other order as may be proper to protect the rights of the parties. For certain causes, the court in which the suit is pending may set aside the agreement of submission ; and said court has power to settle the amount of the referee’s costs and direct its taxation. The respective power's and duties of the referee, of the court where the cause is pending and of the Supreme Court are well defined. No provision is made for the hearing of exceptions or otherwise reviewing or controlling the decision of the referee by the Court of Common Pleas. It is plain that no power is given to that court over the referee or his decision other than is expressed. The power of control and review is expressed to be in the Supreme Court. Moreover, this statute is similar to the prior local Acts of April 6th 1869, Pamph. L. 725, and January 20th 1870, Id. 85, under which it had been decided that the Common Pleas had no power whatever to re-examine and pass upon the report of the referee: Thornton v. Enterprise Ins. Co., 21 P. F. Smith 234; Butterfield v. Lathrop, Id. 225. The meaning of those statutes on the point in question had been judicially ascertained, and therefore the latter statute in similar terms, enacted in view of that adjudication, has the same intendment.»

It is urged that this statute is in conflict with art. V., sects. 26 and 27 of the Constitution. Sect. 26 prohibits the creating of other courts to exercise the powers vested in the judges of the Courts of Common Pleas and Orphans’ Court. A new court is not created. The statute only applies to causes pending in Courts of Common Pleas and Orphans’ Courts, and civil suits cannot be instituted elsewhere- till new courts are created. By agreement, the parties to a pending suit may waive jury trial, and submit the matters at variance between them to a referee; and judgment is entered on his decision. This no more violates the constitutional provision than would an agreement by the parties confessing judgment in vacation. Sect. 27 imposes the duty upon the court, when the parties file an agreement t'o that end, to hear and determine the cause. Prior to the Constitution of 1873, the legislature could authorize the parties to make an agreement of submission to a referee, and to that'is now added the power to compel the courts to hear and determine issues of fact as well as of law, where the parties so elect.

In a writ of error under the Act of May 14th 1874, this court can hear and determine only questions of law involved in the rulings of the referee relating to the evidence or the law of the case. His findings of fact are as conclusive as the verdict of a jury.- If the point were made before him that there was no evidence to warrant the plaintiff’s recovery, or no evidence to warrant the finding of a disputed fact, its disposition could be reviewed the same as when made in a jury trial: Lee v. Keys, 7 Norris 175.

It is claimed that “ the plaintiff below is not entitled to recovery because the injury of which she complains is due entirely to her own action.” This point is well answered *by the referee. By force of law, the instant the old building was torn down the city took part of the land for public use, and is liable to make compensation to the owner, the same as if it had been taken in any other mode.

None of the assignments of error can be sustained except the first. With reference to the second, there was no request for the ruling therein stated. Had it been desired, the point could have been made in like manner as if the trial were before a court and jury. The referee may have acted in accord with the principle, though it is not stated in his opinion.

Judgment reversed, and it is ordered that the record be remitted to the court below for a re-hearing before the referee