Lake Roland Elevated Ry. Co. v. Frick, 86 Md. 259

Lake Roland Elevated Ry. Co. v. Frick

86 Md. 259 | Md. | 1897

Bryan, J.,

delivered the opinion of the Court.

The present is one of the many actions which have been brought to recover damages caused by the construction of the elevated railway structure belonging to the appellant. Robert Garrett brought the action in his lifetime; and after his death his executors became parties plaintiff. The j udgment having been rendered in favor of the plaintiffs, an appeal was taken by the defendant.

Garrett was the owner of a lot of ground fronting on the west side of North street. The elevated structure of the defendant was in front of a portion of this lot, and was alleged to injure the property and diminish its value. A particular description of the lot and the structure is not considered necessary, as they are fully described in the opinions deliv*269ered in the equity suit brought by Garrett against the defendant, and reported in 79 Maryland. At the trial a demurrer was filed to the declaration as it was amended after the executors were made parties. It was contended that the executors had no right of action for injuries done to the real estate in the lifetime of the testator. We think that if this question were ever debatable, it must be considered as settled in this State. Kennerly's case, 1st Maryland, 107; Same case, 2 Maryland, 245; Barton Coal Company's case, 39 Maryland, 1.

Testimony was offered by the plaintiffs tending to show that the lot was damaged by the construction of the elevated crossing. Albert L. Gorter testified that he knew the market value of the lot before the railroad was built, and its market value after it was built; and that before the building of the road it was worth more than fifty-two thousand dollars ; and that after it was built the value was fifteen thousand less ; that the lot was damaged to this extent by the railroad. He was then asked the following question : “ Q. Assuming the value of the lot after the construction of the railway, the value of the property to have been $37,066.67, what, in your opinion, would have been its value in 1894, if there were no elevated structure in front of it? A. $15,000 more.” Defendant objected, and its objection being overruled, took an exception. The evidence seems to be merely the statement in another form of the estimate which the witness had already made.

The plaintiffs offered other evidence tending to show that the lot had been greatly injured by the construction of the elevated crossing in front of it; and that a general rise in the value of property in the neighborhood had taken place since the building of the road; that it was not owing to the existence of the road, but to other causes operating at the same time. The defendant produced certified copies of certain deeds, and tendered them in evidence for the purpose of showing for what price the property was sold which was therein described. On objection by the plaintiffs the Court *270rejected the evidence and the defendant excepted. These certified copies are evidence that the grantors validly conveyed to the grantees the property therein described. In other words there are evidence of every circumstance necessary to make the deeds valid conveyances. As between the parties the acknowledgements of the payment of the considerations are evidence that they were actually paid. And if the deeds should be attacked for fraud in a suit at law or in equity we may concede (for the sake of the argument) that the parties alleging that the considerations were not paid would be obliged to sustain the charge by proof. And that the presumption of innocence would apply in favor of the party charged with fraud, and that the onus of proof would rest upon his assailant. But as between parties in no way connected with the deed, the statement by the grantor that he had received so much money would be res inter alios acta; it would be hearsay pure and simple. A statement made by a stranger that he had concluded a transaction with another stranger can have no binding effect upon third persons ; it .is certainly not entitled to be received as evidence without the sanction of an oath made by some witness acquainted with the fact. In Lloyd v. Lynch, 28 Pennsylvania State R. 424, the Court, speaking of an acknowledgement of the payment of the consideration contained in a deed, as it affected strangers to the instrument, said : “ Against them, it is nothing but hearsay. It is a mere ex parte declaration not under oath, taken without any opportunity to cross-examine. It has long been settled that such declarations are not evidence against strangers.”

Mr. A. R. White was called by defendant as a witness to prove the character and condition of the neighborhood and property on North street between Centre and Saratoga, now facing the main structure of the defendant, as they existed before the structure was built and its present character and condition ; and also to show the character and condition of the improvements between Saratoga and Lexington street's opposite the southern inclined approach to the elevated struc*271ture ; the defendant offering to follow up this testimony by proof that the southern inclined approach is practically a counterpart of the northern approach. The testimony was rejected and the defendant took an exception. We will consider these questions, although the exception is not taken in such manner as to present both of them. We presume that it was the intention of the defendant to follow the evidence by testimony showing the effect of the building of the elevated road. The distances are not shown in feet; but Saratoga street is distant four blocks from Centre; and Centre is distant four blocks from Eager. The witness testified that in the space between Saratoga and Eager there was but one lot which was not occupied by buildings and that one was used as a marble yard ; that there were only two houses used as dwellings, and their occupants kept bar-rooms ; that most of the property was used for business purposes and large warehouses ; and that the streets were “ honeycombed." with the tracks of steam railroads ; that there was no vacant land between Saratoga and Lexington ; and that opposite the structure there is a church, and the Hibernian school-house, and that there are stables, the express company and a paint shop. Evidence had been given that the Garrett property was vacant land, and before the construction of the railroad was suitable for dwelling-houses. As the property in regard to which the evidence was proposed was extremely different from the Garrett lot, we think that the effect upon its value caused by the construction of the railroad would furnish no aid in ascertaining the effect on the Garrett lot.

The defendant offered evidence that the value of the Garrett property had not been diminished by the building of the road ; and also evidence that it had been increased by it. Both parties offered prayers for the instruction of the jury. The question to be decided was whether the lot had been diminished in value by reason of the elevated structure in front of it; and if so, what was the extent of the injury. Ordinarily the question would be settled by a comparison *272of values before and after the erection of the structure ; but in case there were a general advance in the value of property in the neighborhood from the growth and progress ot the city or from any other cause, this test would not be sufficient. To state a hypothetical case: Suppose that a lot is worth thirty thousand dollars, and that it is injured by the railroad to the extent of ten thousand dollars, thus reducing its value to twenty thousand dollars ; and 'that after the building of the railroad there is a general rise in the value of property in the neighborhood, and that participating in this improvement, the value of the lot at the time of the trial reaches forty thousand dollars, which is more than it was worth before the road was built. The railroad cannot be exempted from liability for the damage which it has done, by the circumstances that the injured property has received the benefit of the general prosperity. The railroad has inflicted an injury and the property still suffers from the effect of it. If the damage had not been done, the value of the lot would have been greater; and this increase in reasonable probability would be at least equal to the extent of the injury. It has been argued by the counsel for the appellant that “the building and use of the structure” has increased the value of the lot. We do not suppose that he means obstructing access to the lot, and reducing the width of the open street in front of it, has increased its value; but that the existence of the railroad by increasing' and improving the facilities of travel, and in other ways has conferred benefits upon the property. It is insisted that these should be taken into consideration by the jury, and if they are found to equal the injury, that the verdict ought to be for the defendant. There has been some conflict of opinion in the Courts on this question. We cannot do better than to quote a passage from a recent work of great value, where the result of the weight of authority is stated. We refer to Elliott on Railroads, and we make an extract from volume 3, section 989: “ Where the construction of a railroad adds increased value to the land of an individual different in its nature from *273the benefit to the general community, he receives a special benefit which lessens his injury or loss, so that he really sustains no injury or loss except that which is above and beyond the amount of the peculiar benefit which the construction of the railroad confers upon him by enhancing the value of that part of his land which is not appropriated. But where the land-owner reaps no advantage peculiar to himself, but only such as is shared by the community at large, there is reason for excluding the benefits from consideration. Special benefits may be said to be such as are direct and peculiar to the land. General benefits such as are bestowed upon other lands of similar character and situation in the same vicinity.” This is the doctrine in this State. Shipley v. Baltimore and Potomac R. R. Co., 34 Maryland, 343; Friedenwald v. Mayor, &c., 74 Maryland, 126. We suppose that we have shown our approval of the ruling of the trial Court on the prayers. We think, however, the Court might properly have rejected the defendant’s third prayer. It seems to have been drawn on the theory that the running of the passenger cars conferred benefits on the lot. There was no evidence of any special benefits; and we have already given our opinion in reference to general benefits.

(Decided June 23rd, 1897).

Judgment affirmed.