Montgomery County v. Schuylkill Bridge Co.

| Pa. | May 25, 1885

Mr. Justice Paxson

delivered the opinion of the court May 25th, 1885.

There are twenty assignments of error in this case, yet they involve but a simple question, viz: the measure of damages for the taking of the bridge. All the minor questions presented are subsidiary to this one general proposition. In view of this we regard a discussion of the case in detail unnecessary.

No question arises as to the power of the county of Montgomery to take the bridge for public use and to declare it a county bridge free from tolls, under the Act of Assembly of May 8th, 1876, P. L., 131, and the supplement thereto of May 3d, 1878, P, L., 41. Such taking, however, involved the ne-. cessity of making compensation to the owners, and it was as to the proper measure of damages that all the difficulty occurred in the court below.

The defendant contended, as appears by their eleventh point, “ the measure of damages is the cost of the construction of a new bridge at the time of the taking by the county, similar to the present one,- diminished by an amount in proportion to such cost equal to the depreciation of the old bridge from wear and decay.”

The learned judge very properly declined to- affirm this point. The vice of it consists in the fact that it substituted one of the elements of damages for the measure of damages itself. The bridge structure, the stone, iron and wood, was but a portion of the property owned by the bridge company,' and taken bj^ the county. There were the franchises of the company, including the right to take toll, and these were as effectually taken as was the bridge itself. Hence, to measure the damages by the mere cost of building the bridge would be to deprive the company of any compensation for the destruction of its franchises. The latter can no more be taken without compensation than can 'its tangible, corporeal property. Their value necessarily depends upon their productiveness. If they yield no money return over expenditures, they would possess little if any present value. If, however, they yield a revenue over and above expenses, they possess a present value, the amount of which depends in a measure upon the excess of revenue. Hence it is manifest, that the income from the bridge was a necessary and proper subject of inquiry before the jury. The court permitted' the plaintiff to prove the receipts for, say, five years before the taking, but denied the defendants permission to extend the inquiry back to the time of the organization of the company. We perceive no error in this ruling. It was competent to go into this investigation for a few years immediately preceding the taking, but I am unable to see what light it would have thrown upon the matter to show the receipts forty or fifty year's ago, when Norristown and Bridgeport were comparatively small villages. Had the bridge been non-productive at remote periods, it would in no sense affect its value now. Its value at the time of the taking is the rule. Nor is the value of the bridge to the county a material inquiry. The county may have made a mistake; the bridge may not be worth to the county what the'jury have fixed as the damages. The county might perhaps have built a new bridge at another street for half the money, but it did not do so ; it elected to take the property of the bridge company, and the inquiry under such circumstances is not what it is worth to the party taking, but its value to the company that is deprived of its property.

In this view we have no doubt the toll-house and canal bridge were proper subjects for the consideration of the jury in estimating the damages. They were built by the company for the convenience and proper use of the bridge and the travelling public who used it. Hence it was not error to instruct the jury that if they found the canal bridge and toll-house as now there are a necessary part and parcel of the main bridge as a convenient and necessary approach to it, the plaintiffs were entitled to be compensated for the taking thereof. The jury allowed damages for both, and could not well have done otherwise.

¡■The principle was invoked by the defendant that the true measure of damages was the market value at the time of the taking, and that to arrive at this value the jury cannot take into consideration the past annual net profits derived from a particular use of such property.

The principle is well enough, but it has no application to the facts of this case. The property taken was of a peculiar character, and can hardly be said to have a market value. It .was a bridge and the corporate franchise of the company owning it. There are no sales of such property by which it can be compared, and a market value, in the fair sense of the .term, ascertained. One bridge may be of little value, because unproductive; another, of no greater size and cost, by reason of its location may be extremely valuable. ; The property and ■franchises of the bridge company are represented by its stock, and the market value-of the stock maybe said to represent the market value of the property taken, as nearly as it can be ascertained. If the market value of this company’s stock had been the test, the probability is that the defendants would have been more dissatisfied with the verdict than they are at present, and would have been invoking some other rule to relieve them therefrom. As to the particular use of this bridge, it is sufficient to say that the use referred to is the only one of .of which the bridge is capable, and if the damages cannot be measured by that use, they can be measured by no other. In this respect it differs from ordinary property taken under the right of eminent domain.

It was not error to exclude the evidence offered to show that the company had declared larger dividends than were authorized by law. That was h matter of which the county •had no standing to complain in this proceeding, especially as it was the holder of a considerable amount of the stock, and .participated in the dividends.

We find no error in this record.

Judgment affirmed.