Pittsburgh, Bradford & Buffalo Railway Co. v. McCloskey , 110 Pa. 436 ( 1885 )

Mr. Justice Clark

delivered the opinion of the court November 9th, 1885.

In estimating the damages to a land-owner, caused by the construction of a railroad, the rule as to the measure of damages, declared by Judge Gibson in the Schuylkill Navigation Company v. Thoburn, 7 S. & R., 411, has ever since been recognized and followed: — “The jurors are to consider the matter just as if they were called on to value the injury, at the moment when compensation could first be demanded; they are to value the injury to the property, without reference to the person of the owner, or the actual state of his business, ánd, in doing that, the only safe rule is to inquire what would the property, unaffected by the obstruction, have sold for at the time the injury was committed. What would it have sold for, as affected by the injury ? The difference is the true measure of compensation.” The adjustment of this difference involves, in all cases, a fair and just comparison of the advantages and disadvantages resulting from the opening and operation of the road, and the construction of its works; but the advantages to be considered are such only as are special, and the disadvantages such as are actual. The general appreciation of property in the neighborhood, consequent to the projected construction of the road, cannot enter into the calculation; to this the landowner whose lands have been taken is as fairly entitled as is his neighbor, whose possession and enjoyment have not been disturbed. The general increase of values, resulting from the growth of public improvements, railroads, canals and highways, accrues to the public benefit, and in the computation of damages, the landowner cannot be charged therewith. The question, in each case, is whether or not the special facilities afforded by the improvement have advanced the market value of the property, beyond the mere general appreciation of property in the neighborhood : Pittsburgh & Lake Erie Co. v. Robinson, 14 Norris, 426.

So, also, on the other hand the disadvantages must be actual, not speculative; they must be'such as substantially affect the present market value of the land. As we said in Hornstein v. Atlantic &. G. W. Railroad Co., 1 P. F. S., 90, “ it is the business of the viewers,, in the first instance, and on appeal, of the jury, to balance the advantages- that are special, against the disadvantages that are actual, and with the aid of whatever testimony is laid before them, to find out, as well as they can, how much less the land would fetch in market by reason of,the road; and that sum, which will represent what has really been taken away from the owner, should be given back in damages.’^Merely speculative damages cannot be allowed. 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 sucb 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 market value of the land. The jury cannot include in the verdict a fund to cover the costs of fencing, or to provide an indemnity against losses by fire, or casualties to the cattle and stock upon the farm. Such an assessment must necessarily be purely speculative, as the matters thus sought to be provided against, are in their nature altogether ideal and fanciful. A re-arrangement of the farm may obviate the necessity for any increased fencing; its future occupancy may be such as to require none; casualties, by fire or otherwise, may never occur, and therefore the injury from these causes can only be computed, as they affect the market value of the land. For damages, occasioned by negligent or unskilful management of the road, the company is not liable in this form of proceeding, and there is no remedy in any form for merely accidental injuries, especially for accidents which are only anticipated and may never occur. The introduction of steam and'electricity into the various pursuits and industries of the people, doubtless increases the risks of individual injuries, but, as was said in Railroad v. Hummell, 27 Pa. St., 99: —“ It is a simple law of nature that lie who lives in society must take the risk of those social accidents which society knows not how to prevent; the incidental hazard must stand as balanced by the incidental benefit of the social state.” The estimate of a merely prospective injury can be founded in no rational or correct legal principle, and cannot therefore be allowed. If injuries, such as are anticipated, occur through the negligent conduct of the defendants, they may be afterwards redressed in another form of action ; if they occur by accidental means, they must be borne without complaint. The theory of the charge of the learned judge to the jury, as to the rules of law governing the assessment, is therefore in the main correct, and the seventh, eighth and ninth assignments of error cannot be sustained.

In the practical application of those principles, however, in the determination of questions raised at the trial, upon the admissibility of certain portions of the evidence, and in illustration to the jury of the method by which the damages were to be computed, we think the learned judge erred.

The testimony of William Giliillan was clearly inadmissible, and was, without doubt, damaging to the defendant’s case ; his testimony was as follows :— *

Q. I want you to state, from your experience, if you have had any experience, what the effect of a railroad across a farm is, as to the danger of fire, and danger to stock — inconvenience of that kind. Give us your experience about that if you have had experience. A. My experience is, that if my family, one of them was dying to-morrow, we daren’t all leave home; yesterday it was on fire after I left there; there is never a weelt scarcely but I am on fire.

Q. You are living on the same road? A. On the same road.

This was clearly incompetent; it had no possible connection with the case under consideration; and the tendency of such an extraordinary statement undoubtedly was to swell the damages to an excessive sum. It was a matter of no consequence whatever, what the experience of this witness was, as to fires occurring on his own farm. Whether from any cause fires were more likely to occur there, whether the fires that did occur were the result of negligence or not, whether, indeed, his statements were true or not, were collateral issues which could not be tried in this case.

The testimony of Edward McLaughlin is almost equally objectionable; it is as follows :

Q. State from your experience what the danger, if any, would be from fire being communicated to fences, timber and crops, in the vicinity of the road, as affecting the market value of the laud. A. The fire has rún over my place and burned some fences last spring; not even the fences along the road, but the fences away from the road.

Q. By the court: But as affecting this piece of land, the way it* is, what would be the effect as to the market value, what difference would it make? A. It would not take a very large fire to kill some timber in the woods, or to burn hay or grain there.

Q. State from your experience what the danger, if any, would be from fire being communicated to fences, timber and crops, in the vicinity of this road.. A. I could not answer, without knowing how much damage it would do.

Q. I am not asking the amount of damages; I am asking, from your experience, what you know about the danger there, that would affect the value of the land. A. It would certainly affect it if the fire would burn it.

Q. My question is, how does the danger of fire affect the market value of the land? Does it improve it, or depreciate it? A. It would depreciate it.

The form of examination here pursued was well calculated to elicit the answers given. The question was as to the market value of the land, and in fixing that, the ordinary danger from fires, for which .there w7as no redress against the. compan}', was with the other disadvantages a proper subject of consideration ; but it was incompetent for the witness to state his experience as to his own property to furnish data, from which the jury might anticipate the extent of the prospective injuries of the plaintiff.

Nor do we regard that portion of the evidence of J. C. Emmiuger, set forth in the second assignment, as material to the issue. Whether there was much or little timber land embraced in the plaintiff’s lines was totally irrelevant. The question was as to the value of the land taken, with the timber upon it, and it makes no difference whatever whether the timber land was proportionate or disproportionate to the cleared land; the value of the land with the timber upon it was the test in any event. The company could not be charged at a fanciful or excessive rate for the timber because there was not more than was reasonably required for fire-wood and fencing on the farm. It was clear also-that the witness knew nothing as to the market value of the land; he said that he did not, and it was improper to extort from him the expression of a mere opinion on the subject.

The cost of fencing, as we have already said, cannot be recovered as a distinct item of damages, but the question how much the burden of fencing will detract from the value of the land, may be considered by the jury: Del., Lack. & W. R. R. Co. v. Burson, 11 P. F. S., 369; Montour Railroad Co. v. Scott, 11 W. N. C., 51. We think the charge of the court is fairly open to the criticism that it is .misleading on this question. The computation made by the learned judge, by way of illustrating the method to be pursued by the jury, it will be readily observed, was not in conformity with the principles settled by the cases adjudged in this court, and repeated in this opinion.

It was urged in the argument that the court instructed the jury to disregard the evidence of damages of a merely speculative character, but this was not done until after the argument of counsel was concluded and that was too- late.

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