Pittsburgh, Virginia & Charleston Railway Co. v. Vance , 115 Pa. 325 ( 1887 )

Mr. Justice Clark

delivered the opinion of the court February 21st, 1887.

The market value of land is not necessarily, as would sometimes seem to be supposed, the price which it would command in a forced sale by public auction ; it is estimated upon a fair consideration of the location 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. The price which, upon full consideration of the matters stated, the judgment of well informed and reasonable men will approve may be regarded as the market value: Railroad Co. v. Patterson, 11 Outerbridge, 464. The general selling price of lands in the neighborhood cannot be shown by evidence of particular sales of alleged similar properties; it is a price fixed in the mind of the witness from a knowledge of what lands are generally held at for sale, and at which they are sometimes actually sold, Iona fide, in the neighborhood.

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 facts affecting the subject matter of 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 may be competent to testify intelligently as to the market value of laud, 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 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 that 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.

In the case now under consideration, John Brownfield was called as a witness on part of the plaintiff; he stated, in the most unequivocal manner, that lie was not much acquainted with the land in question; that he had been on the lower part of it, but that he knew nothing at all about the upper part; that he had seen the lower part a couple of times, seven or eight years ago, but had not seen it for four or five years before the railroad was built; that he knew nothing whatever of the quality of the upper part, which was the greater part of the tract, and that his estimate was made with reference solely to the lower part, which he knew. It certainly does not require much argument to show that Brownfield was an incompetent witness to testify on this question ; he had not sufficient knowledge of the requisite facts upon which to base an opinion. In the assessment of damages, regard was to be had to the tract of land, taken as a whole, and yet the greater part of it, he freely confessed, he knew nothing about. He did not pretend to know the general selling price of land in the neighborhood, and admits that he did not know enough about the premises injured to make any estimate whatever.

The first assignment of error is, therefore, sustained.

It is unnecessary to refer, in detail, to the testimony of the witnesses mentioned in the second and third assignments; what has been said with reference to the testimony of Brownfield, indicates the course of examination which should be pursued, and, as the cause must go back for a second trial, the same rule of examination will be applicable to all the witnessés named. *

Nor can we see any good reason for excluding tbe evidence proposed, on cross-examination, referred to in the fourth and fifth assignments. It was certainly competent, although the advantages to be considered must be special and the disadvantages actual, for the defendant, on cross-examination, to test the knowledge and judgment, or the bias of tbe plaintiff’s witnesses, in the form proposed. The force of the evidence was perhaps slight, but it was a legitimate form of examination for the puipose stated.

The court was clearly correct, however, in admitting evidence to show how the trade or custom of the mill was affected by the construction of the railroad; that, by reason of the proximity of the railroad to the mill, it was inconvenient and dangerous for persons with teams and wagons, going to and from it, and that the effect of this was to decrease or destroy the business and custom of the mill, and consequently to lessen its value. If the peril and inconvenience to customers from this cause was such that they were thereby induced to carry their grain to be ground to other mills, and the plaintiff’s land was thereby depreciated, the taking of the plaintiff’s property, and the construction of the railroad thereon, were the direct and immediate cause of this injury. The testimony, therefore, in regard to the loss of custom and the (as we said in W. P. R. R. Co. v. Hill, 56 Penn., 469) reason for it “ were properly received, and submitted to the jury as grounds of compensation to be made to the plaintiff for the deterioration of the property.”

But the testimony was relevant only as it might tend to show that the loss of custom detracted from the value of the land, and to what extent; for, if the plaintiff might recover for the loss of custom as a specific item of claim, he might, under a certain condition of the proofs, recover beyond the value of the land, and this would be at variance with all the cases. In tbe third point submitted by the plaintiff, the court was requested to instruct the jury as follows: “ If the jury find from the evidence that the construction of the railroad tended to decrease the business of the flouring mill and saw mill, or either of them, by making it unsafe to drive horses near them, and dangerous and inconvenient for persons going to and from them, then these would be legitimate items of damage.’-’ To which the court answered: “ This point is correct, and is affirmed, as we have already so instructed you.” The absolute affirmance of this point is certainly clear error. Throughout the whole course of the trial, and even in the charge, the learned court would seem to have assumed the law® to be as we have stated it; yet, notwithstanding the reference in the answer of this point to the general charge, we think it is good ground for reversal. The law is, we think, very correctly laid down in the very recent ease of the Pittsburgh, Bradford & Buffalo Railway Co. v. McCloskey, 16 W. N. C., 561, where the general principle is thus stated: “The inconvenience, arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the ordinary danger from accidental fires to the fences, fields, or farm buildings, not resulting from negligence, and, generally, all such matters as, owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are proper matters for consideration; but they are to be considered in comparison with the advantages, only as they affect the value of the land/’ It is true, this paragraph, from the- opinion in the case just cited, was read to the jury as part of the charge, but the general statement of the rule therein contained might well be supposed to yield to the more specific one, embodied in the point; the answer to which had a manifest tendency to mislead the jurju

We agree with the plaintiff in error that, since the case of Railroad Co. v. Hill, supra, it is well settled that, in the computation of damages for right of way, the loss of custom to a mill may be proven for the sole purpose of showing how, and to what extent, the market value of the land has been depreciated by the construction of the road. In the comparison of the advantages and the disadvantages, the loss of custom, like the cost of fencing, is to be considered by the jury, as it may affect the market value of the mill and the land, but not as a distinct or “ legitimate item of damages.”

The judgment is reversed, and a venire facias de novo awarded.