| Pa. | Mar 13, 1882
delivered the opinion of the court, March 13th 1882.
It is not open to debate that, prior to the Constitution of 1874, neither the Commonwealth nor its locum tenens was liable for consequential damages resulting from the exercise of the right of eminent domain. It is, however, just as well settled, that the legislature, in its grant of this right to a corporation, might so limit the exercise of that right as to make it subject to the payment of such damages.
The grant to the company defendant is made subject to the condition, “ that if, in the location of said works, an injury shall be done to private property, and the parties cannot agree upon the amount of compensation to be made to the owner,” viewers are to be appointed for the purpose of ascertaining and assessing the damages. The words here used ax-e of the most genex’al charactex'. “ Private pi’operty ” necessaxily includes everything that can be held or owned by pi’ivate pex-sons, and “injury” any, aixd every, damage to which it can or may be subjected. Now, that Moyer had property in the watex’s of Mosquito creek, though of an incorporeal nature, is certain: City of Reading v. Althouse, 12 Nor. 400.
This action was, therefore, well brought against the Lycoming Gas and Water Company, which had disturbed the plaintiff’s right. But caix the shexiff’s vexxdee, which sxxcceeded to the propex’ty rights and fraxxchises of the corporation just named, be held for the' damages resulting fx’om the oi’iginal taking of this water? We answei’, yes ; for Moyer’s xight could not be extinguished until it was paid fox’, or security given for payment, neither of which was done by the former company; hence, the plaintiff’s claim was a continuing lien upon the corpoi’ate property, like the lien for purchase money ixx articles of agreement for the sale of laud, dower, or a covenant ruxxning with land; aixd that this right is pax-amount to all othex’s is expx-essly ruled in the case of Western Railroad Co. v. Johnston, 9 P. F. Smith 290. In this case it was held, that the sale of a railroad under a moi’tgage, befox’e the damages to a land-owner are paid, or secux-ed to be paid, will not divest sxxch owner’s right to recover compensation from the purchaser.
It would, indeed, be utterly unreasonable and unjust, as well as unconstitutional, that any one shoxild be thus deprived of his property without compensation. What is the Citizens’ Water and Gas Company but the sxxccessor of the Lycoming Gas and Water Compaxxy? And if Moyer was to pux’sue the proceedings already commenced, which he had an undoubted right to do, what other coui’se could he adopt than to substitute the latter company for the former ? When the Lycoming Conxpaixy was dead and gone, who claimed to hold Moyer’s property, and to
The remaining exceptions require but little discussion.
The only one of them that has been seriously urged upon our attention, .is that involving the offer to show, by the records in the case, the recovery by Moyer of damages against the Philadelphia and Erie Railroad Company, for injury done to his mill and water-power in the construction of its road. We think this offer was properly rejected. The railroad company was liable for whatever damage it caused to the plaintiff’s property, and for that alone. The Lycoming Gas and Water Company had, before this, tapped Mosquito creek with its sixteen-inch pipe, and had to this extent, injured the power of the plaintiff’s mill, but for this the railroad company could not be held, and for this it certainly did not pay. It could be held only for the deterioration which it caused to a property already damaged by the act of the defendant.
Suppose the railroad company had wholly destroyed the plaintiff’s mill; what would have been the damages to which he would have been entitled ? The whole value thereof, with its original water-power ? By no means: but its value with the power as diminished by the act of the Gas and Water Company. In other words, the inquiry must be limited to the value of the property after the time of the alleged damage as contrasted, with its value immediately before that time.
It does, therefore, seem to us out of all character to insist that the defendant is to be excused for its spoliation of the plaintiff’s property, because the railroad company was obliged to pay him for an injury to that which remained after the defendant’s abstraction of a material part of its value. Again, as we understand the matter, the railroad company appropriated none of the water; it but daused an obstruction; hence, the claims for damages in the two cases are entirely dissimilar. In the one case they result from a taking of the property of the plaintiff, and in the other, from an obstruction preventing its proper and convenient use.
There is, therefore, no likeness between this case and that of Converse v. Colton, 13 Wr. 346. But if we put the supposition that the railroad had taken all the water that had been left to Moyer by the defendant, it would not alter the case, for, nevertheless, the railroad company must have been held only for what it got, and not for what was previously taken by some
It follows, that the action of the court below in refusing the proposed evidence, must be sustained, for, however viewed, it could in no particular affect the matter in controversy.
The judgment is affirmed.