151 Pa. 158 | Pa. | 1892
Opinion by
In September, 1886, the plaintiffs were in possession of a lot at southeast corner of Filbert street and Schuylkill river—part of the city gas works property—fronting about one hundred and fifty feet on said river and extending back about sixty feet, on which valuable machinery was erected for the purpose of distilling crude tar made by the gas works. They were then engaged in the prosecution of that business.
The railroad company defendant, having previously located its road on the lot, entered thereon by virtue of its right of eminent domain, and, as alleged by plaintiffs, took down all the machinery, removed some of it to points on the river bank in the southern section of the city, and some of it to Wilmington, Delaware; and, in consequence of removal and exposure to the weather, etc., said machinery became so worthless that it was afterwards disposed of by defendant company at very little more than the price of old iron.
Part of the machinery referred to was purchased from Warren, Lober & Co. in April, 1883, for $17,523. Other machinery was afterwards purchased by plaintiffs for the purpose of improving and enlarging the capacity of the plant.
Shortly before that, Michael Ehret, Jr., one of the plaintiffs, contracted with the city to purchase all the tar made at its Ninth Ward gas works, during the period of five years commencing July 1, 1883. He bound himself, his executors, administrators and assigns to furnish suitable receptacles for all the tar that would be produced daily, during said period, and thus prevent any overflow of the wells in said works, to
It was claimed that a vital part of Ehret’s contract with the city was that he should have the use of the adjoining premises in the way specified. The tar, as produced, was to be run from the gas works into plaintiffs’ tanks and other reservoirs so that they would incur no expense in its removal. The central situation of the Schuylkill wharf front enabled them to secure a full supply of barrels, without expense of hauling, and also enabled them to conveniently supply their customers with the products of their refinery. These and other facilities for handling materials as well as the manufactured products, etc., were of great advantage.
In their petition, filed November, 1886, for the appointment of viewers to assess their damages, plaintiffs averred their ownership of said machinery, and of the leasehold of the premises on which the same had been erected and used in their business. In December, 1889, the viewers awarded $43,153.53 damages in favor of plaintiffs, and both parties appealed. The court ordered that the cause should be put at issue for trial, etc., “ to determine what legal damage, if any, the plaintiffs may have sustained in consequence of the location of defendant’s railroad and the consequent taking and occupying by the defendant of the strip of ground .... described in the report of the viewers, and the construction of a railroad thereon, subject to the ruling of the court . , as to the date when the right of action accrued to plaintiffs, with the right of appeal by either party to the Supreme Court.”
This was the issue on which the case was tried. It does not appear that any question of title in plaintiffs to the lease, machinery, etc., or want of proper parties to the proceeding arose until a motion for nonsuit was made.
The cause was carefully and ably tried, and in a clear and comprehensive charge, calling attention of the jury to the facts and circumstances presented by the evidence and questions of law applicable thereto, etc., it was fairly submitted to the jury. Several points for charge were presented by defendant company, all of which, except the two recited in the 8th
Several of the remaining specifications relate to the admission of testimony tending to show the additional cost entailed upon plaintiffs in receiving and handling the tar and other materials, etc., offered for the purpose of showing the value of plaintiffs’ lease of the lot appropriated by defendant, etc.
An examination of these specifications has failed to convince us that there was any error in admitting the evidence complained of. The circumstances of the case were somewhat peculiar—quite out of the ordinary course. We have already referred to the contract to take all the tar made by the gas works, etc. The location of the leased lot adjoining the works from which plaintiffs were bound to receive their supply of tar, at least to the extent of the production of those works, afforded facilities for economically handling supplies and disposing of products, that could not be had elsewhere. They were bound by Mr. Ehret’s contract with the city to take and pay for all the tar made at those works. These and other matters that might be mentioned were elements which evidently and properly entered into the consideration and determination of the value of the lease. It was part of the property taken by defendant company as locum tenens of the common
Railroad Co. v. Getz, 113 Pa. 214, recognizes the right of owners of a leasehold to recover, as damages, the cost of removing their machinery.
In Kersey v. Railroad Co., 133 Pa. 234, plaintiff was lessee of a coal wharf, etc., on which machinery for handling coal was erected. The defendant constructed its railroad across the property, dividing it into two parts and so interfering with plaintiff’s sheds, runs and other appliances, that it became necessary for him to construct new ones, involving also the erection of a high single span bridge, etc. The operation of these new appliances involved considerable breakage of and increased cost of handling the coal. For the purpose of showing the value of his leasehold as it was before part of it was taken by the railroad company, the plaintiff was permitted to prove the cost of the substituted appliances, the extent of waste necessarily resulting from their operation and the increased costs of such operation. In that case our Brother McCollum speaking for this Court said: “ It is well settled that the proper measure of damages is the depreciation in the market value of the property caused by the location and construction of the railroad. But the elements to be considered in the ascertainment of this depreciation are as varied as the properties affected
These well considered and clearly expressed views apply forcibly to several features of the case before us, and serve to enforce the position that the evidence complained of was not only competent but perhaps the best that some features of the case were susceptible of.
Without referring more specifically to the 1st, 2d, 4th, 5th and 6th specifications we think neither of them can be sustained.
There was no error in sustaining plaintiffs’ objections to the offers recited in the 3rd, and 7th specifications.
An examination of the record with reference to each of the specifications, respectively, has led us to the conclusion that there is nothing in either of them that requires a reversal of the judgment.
Judgment affirmed.