Hanover Water Co. v. Ashland Iron Co.

84 Pa. 279 | Pa. | 1877

Mr. Justice Sharswood

delivered the opinion of the court,

The rule for the measure of damages was correctly stated by the learned judge below, that it was the difference in the market value of the property of the Ashland Iron Company as a farm and ore-bank immediately before the water company appropriated the stream and immediately afterwards as affected thereby. It is true that the first point of the plaintiff below was inaccurately worded, and the unqualified affirmance of it might have misled the jury if it had stood alone to think that the measure of damages was the value of all the water that would pass through the pipe even to the extent of the whole stream. But the meaning evidently was that as the iron company might have the whole stream taken from them at any future period and their damages were now to be ascertained and found once for all, the jury had a right to consider that fact in its legitimate bearing upon the market value of the land and ore-bank. If this stream of water added greatly to the value of the property, as the jury might well find, certainly the fact that it might at any future period be exhausted by means of the pipe laid to convey it to the Borough of Hanover, would necessarily operate to depreciate its market value. Upon another trial this apparent error can and ought to be avoided.

It appears to have been apprehended that the water company would insist that the ore-bank had been abandoned and the stream therefore of no use for the purpose of washing the ore, and such ground they did in point of fact take. Now it was entirely competent for the iron company to prove that though it' had not been worked for a number of years it was not exhausted, and the working of it might be resumed with profit whenever they determined to do so. But why they had abandoned it, if it was still unexhausted and workable, was entirely irrelevant; not calculated to enlighten the jury upon the only true issue, but on the contrary to turn aside their attention to side issues. What the intention of the owners in the future might be could have no legitimate bearing upon the question of the value of the land and ore-bank in the market immediately before or after the appropriation of Gift’s run by the water company. We think, therefore, that the first, second and third assignments of error must be sustained.

The rejection of the evidence as complained of in the fourth assignment may be supported. The witness Becker had stated generally that he owned land in the neighborhood and was acquainted with its market value. When asked the value of this land it was objected that the greater portion of the claim of the iron company was for an alleged deprivation of their ore land of the water for washing, and the witness therefore could not speak of the value of this land from the bare knowledge of the value of farm land in the vicinity. But the witness then testified that he knew the general value of ore lands in the neighborhood; that he knew this tract and that it had on it an ore-bank. Why then should he not have been allowed to give his opinion ? It is true he said in answer to questions by the court that his knowledge of sales of ore land was derived only from hearsay, and that he had no practical knowledge of ore lands never mined. The knowledge -that the best experts possess upon this subject is derived from hearsay. It is not necessary that they should be actually present and personally know the sale. Indeed it was held by this court in East Pennsylvania Railroad Co. v. Hiester, 4 Wright 53, that after a witness has given his opinion of the value of land, it was improper for him to give particular instances, because there might thereby be introduced into the cause as many issues as there were instances. We think, therefore, the fifth assignment of error must be sustained.

We find no error in the rejection of the assessments. It is true the assessors and public officers are sworn to do their duty. But the assessment is nothing but their ex parte statement, and their opinion was not subjected to the test of a cross-examination. The sixth and seventh assignments, therefore, are not sustained.

Nor do we think that the declaration of Philip A. Small was admissible. It was testified, indeed, that he was acting for the iron company in carrying on the work at the bank, and the offer was to prove a statement by him to one of the miners, “ that every ton of ore they got out there cost a little over five dollars a ton to mine it.” This was certainly not within the scope of his authority as .superintendent, and it would be very unjust to allow such loose declarations of a mere agent to affect his principal. It was no part of the res gestee upon the broadest construction of the rule which admits the acts and declarations of an agent. Such acts and declarations must be in the course of his duty.

The ninth assignment has been already adverted to and needs no further examination. As to the tenth, the answer to the third point of the defendant below was in part erroneous in introducing the element of the intention of the iron comjnany to remove the ore-bank, the evidence as to which was, as we have seen, irrelevant and ought not to have been admitted; but it would have been correct to say that the fact that the mine was not worked ought not of itself to prejudice the iron company if it was still an unexhausted mine and added to the market value of the property.

Judgment reversed and a venire facias de novo awarded.