236 Pa. 479 | Pa. | 1912
Opinion by
On account of refusing to admit offers of testimony relating to certain elements of damage, and in striking out all testimony admitted in which the witnesses fixed the amount of damages in dollars and cents, this judgment must be reversed and a new venire awarded. It will, therefore, only be necessary to indicate what elements of damages may be considered, and what may not, when the case is again tried. This is an action to recover compensation, commonly called damages, for land belonging to appellant and actually appropriated by the railroad company under the right of eminent domain. One of the controverted questions is whether in such a case smoke, noise, dust and dirt, resulting from the operation of trains, over the land taken, may be considered as elements of damage tending to depreciate the value of the remaining portion of the tract not appropriated. That such elements of damage may be
The first assignment of error, if we properly understand its import, must be sustained. The plaintiff was entitled to show the close proximity of the coal wharves and water tanks to his property, and the use made of them, so far as that use multiplied trains upon the land actually taken, and increased the noise, dirt and dust, resulting from the ordinary operation of the railroad thereon. These were proper elements of damage to be considered in estimating the depreciation in market value of the remaining portion of the tract not appropriated. This is what we understand the first point to mean, and when so understood, it should have been affirmed. Noise, smoke, dirt and dust, can only be considered as elements of damage when they come
Then, again, it is proper to remark that damages resulting from the operation of trains over the land formerly appropriated cannot be considered in this pro
We also are of opinion that the learned trial judge erred in striking out the testimony of all witnesses who estimated the value of the land in dollars and cents before and after the taking. With that testimony stricken out there was no basis upon which the jury could estimate the damages, and it is difficult to see how any proper verdict could have been returned fixing the compensation to which the plaintiff was entitled for the property taken and injured. But, as the case is again to be tried, it will not be necessary to discuss more in detail the effect of striking out this testimony. We have indicated what elements of damage can be considered at the new trial, and what cannot be, and this is all that is deemed necessary for present purposes.
We cannot agree with the contention of the learned counsel for appellee, that the depreciation in value to the entire tract cannot be shown because the turnpike cuts off the land taken from the main portion of the tract. The title to the farm is held as an entirety, and it has always been cultivated as one single tract. The location of the turnpike as a convenience to the public, did not affect the right of the land owner to use and enjoy his farm as an entirety. The fact that the land taken was separated by the public road from the remaining portion of the tract, if the testimony warranted such an inference, might very properly be considered by the jury in estimating the extent of the injury to the land not taken, but this at best would only
Judgment reversed and a venire facias de novo awarded.