93 Pa. Super. 555 | Pa. Super. Ct. | 1928
Argued April 11, 1928. In 1926 plaintiff filed four petitions for viewers to assess compensation for damage to four tracts of land in Upper and Lower Turkeyfoot Townships, Somerset County, over which appellant in 1911 had constructed and thereafter operated a railroad. She obtained awards, which were appealed to the Common Pleas. The cases were put at issue by statements of claim and affidavits of defense. They were tried together and, from the judgment's on verdicts for plaintiff, these appeals were taken and presented in one argument.
We review the cases of course on the theory on which they were tried and, therefore, pass over the contention that the entry on the land and the construction of the railroad were tortious, for the fact appears by admission in the affidavits of defense of an averment in the statements of claim duly put in evidence, that "defendant ...... has appropriated, taken, used and *558
occupied, and continues to use and occupy for railroad purposes across the lands herein described," the right of way giving rise to the proceedings. As the words of the averment have a well recognized technical meaning, (Davis v. Titusville, etc., R.R. Co.,
But in the two appeals first to be considered, we cannot accept the contention that plaintiff has shown no title to receive compensation. Appellant was incorporated in March, 1911, under the general railroad law. In May, 1911, when it entered and constructed the railroad, the land (a tract of 27 acres in the first appeal and about 50 acres in the second) was not owned by plaintiff but by a corporation engaged in lumbering. As landowner, it then became entitled to compensation. In 1926 it conveyed the land to DeLong with an assignment to him of damages resulting from the railroad appropriation, and DeLong conveyed the land with assignment of the damages to the plaintiff before she applied for viewers. Appellant contends that the right to the compensation was not assignable, citing Marsh v. R.R. Co.,
The plaintiff and a witness, King, testified concerning damages. Plaintiff, as owner, was a competent witness: Chauvin v. Fire Insurance Co.,
The other witness on damages was Mr. King, called by plaintiff. The evidence shows that he was competent to testify: White v. R.R. Co., supra, Curtin *560
v. R.R. Co.,
Two errors in permitting such evidence to go to the jury are obvious: (1) The market value of the tract of land after the construction of the railroad as affected by it should be ascertained as of the time of its completion for operation and not as of a date several years later; in Hamilton v. R.R. Co.,
Appellant also complains of a portion of the charge in which the following appears: "Now in determining these damages you will inquire what advantages accrued to this plaintiff by that railroad that were not common to everybody, but that were special to her...... Did it bring her coals and fire clay, if any, into market that was special to her land that other people didn't benefit in the same way? Were there disadvantages by that railroad in that community to all the land through which it passes? She is not entitled to complain to you and get compensation for such damages, but if there was a disadvantage that was special to her tract; if there was room to get but one railroad track through there and this defendant took that ground, and then operated a railroad that was of no account to her, and shut out a more useful corporation, that would be a special disadvantage." We cannot sustain that instruction. There was no harm in calling attention to any elements in the evidence which would detract from the market value of the land after the taking (Parry v. R.R. Co.,
In the other two appeals plaintiff proved no assignment of damages from the parties who owned the lands in 1911 when the appropriation took place; they were the parties entitled and not the plaintiff: Quade v. R.R. Co.,
In No. 1481 (88 below) and No. 1482 (89 below) the judgments are reversed and a new trial is granted.
In No. 1483 (90 below) and No. 1484 (91 below) the judgments are reversed and are here entered for defendant.