Somerton Turnpike , 16 Pa. Super. 400 ( 1901 )

Opinion by

Orlady, J.,

These proceedings were instituted upon a petition of resident taxpayers of the county of Philadelphia, under an Act of June 2, 1887, P. L. 306, to condemn for public use, free from tolls and tollgates, a section of the turnpike road, within the limits of the said county, belonging to the Bustleton and Somerton turnpike road company, a corporation which had been duly incorporated under an act of April 14, 1840, P. L. 324. A jury of viewers and a master were appointed by the court of quarter sessions, before whom a number of witnesses were examined, and who made a report by which a portion of the turnpike road within the county was condemned for public use, free from tolls and tollgates, and the damages to the company were assessed at §24,000.

To this report exceptions were filed, and after a hearing thereon, the exceptions were overruled, and the report of the viewers was confirmed by the court. From this action of the quarter sessions this appeal is taken, and the assignments of error all relate to alleged errors of the master in his charge or instructions to the jury of viewers. The act of 1887 prescribes an unequivocal mode of procedure to effectuate the condemnation of turnpike roads for public use, and the decisions of the Supreme Court as clearly define how “ the damages to which the owner or owners thereof may be entitled therefor ” are to be ascertained.

The statute declares that the master, “ shall not vote on any question of fact or value,” and directs that he is to “ instruct the viewers upon matters of law.” These provisions of the act were disregarded in this case by the master in minimizing the testimony of witnesses called by the company, and in giving his opinion of the effect of such testimony, as well as the measure of credence to be given to it. Some parts of the charge present the case more in the language of advocacy than of dispassionate legal instruction. To tabulate and compile the annual statements of gain and loss, to prove that the part of the road outside of the county had been run at a loss, to urge that the company’s calculation “must be read with great allowances, and in the exercise of an active judgment,” to argue to the jury that “ I cannot believe that the figures which have been given to you by the company as the basis of their claim would have made more than the slightest impression upon your minds as a proper basis, nor do I believe that the company could be regarded as sincere in making a claim for damages,” to say of the statement submitted from the books of the company, that it, “ gives a greater sum as the earnings of the road within the city limits than is warranted by a correct view of the facts,” and similar suggestions of like import, were indicative of a positive opinion in the mind of the master, and must of necessity have had a determining influence on the jury. The objection is not to the statements, but to their source. It was not intended by the statute that such a presentation of the case, while legitimate if urged by counsel, or considered by the jury, should be made by the master, and it was improper, for the reason that the damages were to be assessed by the jury, unaided by the opinion of the master as to any “ question of fact or value.” . The master further instructed the jury, as matter of law, that, “ the road is a highway, and if in any sense the road as a road can be considered property, that property is in the commonwealth of Pennsylvania. What you are condemning, if you condemn anything, is not land and stone and bridges, but a franchise, a privilege. The privilege which the company has to collect toll from travelers.” The condemnation proceedings were intended to, and would for all purposes, take from the company all and every kind of its property within the section of the turnpike which the jury would condemn for public use, as part of, or as appurtenant to, its corporate rights. The measure of damages in such a case is the value of a property to the owner, not to the county taking it: Montgomery County v. Schuylkill Bridge Company, 110 Pa. 54. In a similar case, the Supreme Court held that, “ It is just compensation for the loss suffered in consequence of the taking of the property, being the substructure, superstructure, and approaches to the bridge, together with the right to take tolls, and the jury have no right to find less: ” Clarion Turnpike & Bridge Company v. Clarion County, 172 Pa. 243.

The rule has but recently been stated. to be “ the measure of damages is the value of the. property at the time of taking to the owners, not only by the mere value of the road itself, the mere structure or physical turnpike, its tollhouses and gates, but plaintiffs’ entire property rights with the value of its franchises in connection with those property rights under and. by virtue of which they are used and enjoyed:” West Chester & Wilmington Plank Road Co. v. Chester County, 182 Pa. 40. The master in effect instructed the jury to ignore the roadbed proper in estimating the damages, because as he states, “ the company’s interest in the roadbed and bridges is but a use interest, therefore the only consideration you are to give them is of the use they are to the company in the exercise of its franchises.” It is true that the turnpike company is not the absolute owner in fee of the roadbed, but it may have expended large sums of money in constructing a roadway, bridges, culverts and drains within its right of way, which are necessary parts of its corporate property taken as a whole, and without which improvements the property would be of little value. As was said in In re Kensington and Oxford Turnpike Company, 97 Pa. 260, “ The roadway of the turnpike company was a visible, tangible thing. It was property which necessarily cost the company a large amount of money. It was worth to the company just what a jury would give them in this proceeding. It was worth to the city the amount it would cost the latter to have graded and macadamized the road as it was when taken.” If condemned for public use, such turnpikes, road or highway, free from tolls and tollgates, in this section of the turnpike, and its franchise in connection with those property rights, under and by virtue of which they are used and enjoyed, is taken from the company, and thereafter, that portion belongs to the public and shall be repaired and maintained at the expense of the county as other public roads are by law repaired and maintained. All that is taken from the company should be paid for, no less and no more, and all that is taken — not may but must be — considered by the jury of viewers in determining the reasonable damages the county should pay for taking the property of this turnpike company for public use.

The first, second and third assignments of error are sustained. The points submitted by the turnpike company as represented by the other assignments of error were not entitled to an unqualified affirmance. On a rehearing all danger of error can be averted by adopting the measure of damages laid down in the cases above cited.

The judgment of the court below is reversed and record remitted with a procedendo.