Downey Bros. v. Pennsylvania Railroad , 219 Pa. 32 ( 1907 )

Opinion by

Mr. Justice Potter,

The plaintiff corporation, as the owner and occupant of certain real estate in the city of Lancaster, situated on the east side of North Mulberry street, sought in this action to recover damages from the defendant company, for injuries resulting from an unauthorized and illegal change of the grade of its railway tracks upon the street in front of the plaintiff’s premises. The statement of claim is not very clear, in this respect, but we understand it to be for temporary injuries, although it does include interference with access to the premises, which would seem to be of a permanent nature. However, the interference with the access is alleged to be for certain specified months, and for a period subsequent thereto, and the language of the statement as a whole seems to indicate that the claim is for injuries of a temporary nature, or to personal property. If the injuries were of a permanent nature, and were caused by an act of defendant company, committed before the plaintiff acquired title to the property, the right to recover for the permanent injuries would belong to the former owner. This question was not argued, and it only arises incidentally in com nection with the first assignment of error, in which complaint is made of the answer to defendant’s first point. In this, the court was asked to charge that plaintiff could not recover unless the injuries were caused by some act of the defendant occurring after April 19, 1901, the date of the incorporation of the plaintiff. As a matter of fact, April 19 was not the date of the incorporation, but it was the date of the deed.

The point was not accurately framed in that it made no distinction between tbe act of the defendant, and the injurious consequences resulting from the act. It did not follow that the injuries resulting from the overflow of water, especially those to the personal property, would be felt immediately. The court affirmed the point as presented by counsel for defendant, upon the assumption that it meant that the injuries were suffered after April 19, even though the act causing them had occurred before that date. This was correct as regarded injuries of a temporary nature or those to personal property. Damages to land are a personal claim to the owner at the time the injury occurs. They do not run with the land, or pass by deed: McFadden v. Johnson, 72 Pa. 335; Warrell v. Wheeling, etc., R. R. Co., 130 Pa. 600. But, as we have already said, the issue in this case seems to have been made up and tried by both sides, upon the theory that the claim was not for injuries of a permanent nature, but was confined to those of a temporary character, and to personal property. Under that assumption, the rights of the defendant were duly guarded by the court.

In affirming the defendant’s second point for charge, the trial judge limited the jury expressly to such damages as occurred after the plaintiff acquired the property. So also in answering the third and fourth points, the jury were limited in the amount of the verdict, to such a sum as would if properly expended have prevented the water from flowing into the property. There was no error in making this conditional upon the finding by the jury that the plans suggested, or some one of them, should be effective. If not, they should of course have been ignored. In his general charge, the trial judge instructed the jury at length on the questions raised by the third and fourth points, and substantially as therein requested. We see no merit in the fourth assignment of error. The witness there referred to whose evidence was admitted against objection, testified that he saw the work of raising the tracks being done, and he gave the height as near as he could tell. He gave an estimate only, and it was accepted as such, and it was within the limits fixed by other witnesses who had made accurate measurements.

The fifth and sixth assignments, which are to the exclusion of certain evidence offered by defendant, are bad because neither of the assignments refers to the place where the matter referred to appears in its regular order in the printed evidence, as required by rule 31. They will not therefore be considered: Cameron v. Traction Co., 216 Pa. 191; Hallock v. Lebanon, 215 Pa. 1.

We see no merit in any of the questions which are raised in this appeal by the assignment's of error, and the judgment is affirmed.