Orr v. Carnegie Natural Gas Co.

2 Pa. Super. 401 | Pa. Super. Ct. | 1896

Opinion by

Smith, J.,

It is a general rule of evidence that everything said or done by a party to a suit, touching the matter in issue, may be presented in evidence against him. One exception to this rule is, that statements and propositions of either party made by way of compromise are excluded, because the policy of the law favors an amicable adjustment of controversies, and, therefore, it protects bona fide negotiations for that purpose. A party may, if he chooses, buy his peace at a sacrifice. But in order to be entitled to the benefit of this exception it must reasonably appear that what is sought to be proven, was said during an attempt at settlement. When the facts are unquestioned, the court may decide whether the offer comes within the exception ; when disputed, the jury are to determine this under instructions from the court, and, thereupon, they must consider, or disregard, the subject of the offer, in accordance with their finding, when passing upon the main question: Hart v. Heilner, 3 Rawle, 407; Gordon v. Bowers, 16 Pa. 226; Haynes v. Hunsicker, 26 Pa. 58; De France v. De France, 34 Pa. 385.

If the question put to the plaintiff (the ruling upon which forms the first assignment of error) was directed to what occurred during negotiations for a settlement of damages for the right of way over the plaintiff’s property, its exclusion was entirely proper. The act of May 29, 1885, section 10, P. L. 34, provides that: “Prior to any appropriation, the corporation shall attempt to agree with the owner as to the damage properly payable for an easement in his or her property,” etc. This enjoins on the corporation the duty of attempting to agree with the owner upon the damages, and extends to the owner an opportunity of adjusting his claim without litigation. While thus engaged both parties should be free to discuss the matter, without restraint, or fear that what then takes place may thereafter be used to their prejudice upon the trial. It seems clear that these negotiations come within the spirit and purpose of the exception, excluding offers of compromise, and are within its protection.

But while it may be that the offer to take a certain sum, as implied in the rejected question, was made by the plaintiff during an effort to settle upon the amount of damages as required by the act of assembly, the fact that this was so nowhere appears; nor does it arise by implication so as to warrant its deduction by a jury. Though not lucidly stated, it reasonably appears from the offers, that they had reference to a price which was demanded by the plaintiff, apart from any purpose of compromise. Whether that were true or not, was a fact which could not be negatively found by the court in advance, without any testimony on the point. The question was put to the plaintiff himself, and he knew and could have stated Avhether the price he demanded was asked during an effort to adjust the damages arising from the proposed easement. The fact that the defendant desired a right of way over the plaintiff’s land, was not of itself sufficient to bring the offer within the exception referred to. While the law requires that the application for a charter for a natural gas company shall state the general route of its intended line, its location at any given point need not be specified; and it nowhere appears in the evidence that at the time of the alleged offer, or demand, the company had fixed its route over the plaintiff’s land, or had projected any definite line for that purpose; nor was it alleged that the statement of the plaintiff took place during an effort to settle the damages as called for by the statute, or was made by way of compromise, or that the plaintiff so understood it. There is nothing disclosed in the circumstances which would justify the exclusion of the question under the established rules of evidence. The mere objection to that effect by counsel, is not sufficient. For the present therefore we must take the offer as true, and hold that it comes Avithin the general rule admitting the statements of parties, and that it was error to reject it: Railroad Company v. Ranck, 78 Pa. 454.

The rules of evidence governing the admission of opinions as to the value of property have been frequently stated by the Supreme Court; they are plain and not difficult of application. In Michael v. Crescent Pipe Line Co., 159 Pa. 104, it was said: “ An essential test of the competency of witnesses, called to give an opinion in respect of the market value of land, is that they should affirmatively appear to have actual personal knowledge of the facts affecting the subject-matter of the inquiry: Railway Co. v. Vance, 115 Pa. 325. They cannot intelligently testify without such knowledge; its possession is a necessary element in the value of such testimony, but cannot be assumed: the court cannot pass on the question of competency until it be made to appear. Hence the possession and sufficiency of such knowledge should be made to appear and be passed upon by the court before the witness should be permitted to express any opinion. What constitutes sufficient knowledge was thus stated by Mr. Justice Clark in Railway Co. v. Vance, supra: ‘ The market value .... is estimated upon a fair considerar tion of the land, the extent and condition of its improvements, its quantity and productive qualities, and the uses to which it may reasonably be applied, taken with the general selling price of lands in the neighborhood at the time. The prices which, upon full consideration of the matters stated, the judgment of well informed and reasonable men will approve, may be regarded as the market value: Railroad Co. v. Patterson, 107 Pa. 464. The general selling price of lands in the neighborhood cannot be shown by evidence of particular sales of alleged similar properties; it is a price fixed in the mind of the witness from a knowledge of what lands are generally held at for sale, and at which they are sometimes sold, bona fide, in the neighborhood.’ ” See, to the same effect, McElheny v. Bridge Co., 153 Pa. 108; Mewes v. Pipe Line Co., 170 Pa. 364.

If there have been no sales from which the general selling price might be ascertained, the market value may be determined from the testimony of persons who are acquainted with the property and are able to speak, from their knowledge and experience, as to its value: Curtin v. Railroad Co., 135 Pa. 20.

The basic requirements are personal knowledge of the property and of its value at the time it is taken.

Measured by these rules the second, third and fourth assignments of error cannot be sustained. Each of the witnesses testified that he knew the property for many years, and his judgment of its value was based on his knowledge of its condition, quality and utility, and of such sales as were made of similar properties in the neighborhood. Nor was there any error in excluding the testimony set out in the sixth assignment. The witness himself stated, and his testimony showed, that he was not acquainted with the value of land in the neighborhood of the Orr farm.

The testimony upon which the seventh assignment is based, shows that the witness had no knowledge of the value of the Orr farm, or of any part of it, which would warrant the admission of his opinion upon that subject; and it would be novel indeed, to allow a witness, without knowledge of the subject-matter, to testify, hypothetically, concerning it. That would be in direct violation of the principle upon which such testimony is permitted.

The witness, Higgle, had been called and examined in the case. On the next day he was recalled, and it was proposed to re-examine him on matters which he had gone over in his testimony the day before. No reason was given in the offer, or stated by the witness, why he should be again examined on the same subject, and the court refused to permit it. We fail to see any abuse of discretion in this matter, or that any error was committed in disallowing a repetition; the eighth and ninth assignments are therefore overruled.

The fifth assignment of error is based on an objection to a statement by counsel of the plaintiff, made during the examination of a witness. The witness was asked: Q. “ What’s the difference in your estimate between the value of this farm before the pipe line was laid and the right of way taken, and since?” Instead of replying to this question the witness said: A. “Well, I would like to know what your right of way includes, whether it is just up to the present time ? ” To which the counsel of the plaintiff replied, “Right of way includes sixteen feet wide, the right to use it for the laying of gas lines, and the time is indefinite; it may run on forever, or it may be restored at the pleasure of the person taking it.” Whereupon the witness further inquired, “ When they take the width of the pipe out, is it going to be refilled, or left an open ditch ? ” To which the counsel replied, “We do not know.” The witness then said, “ That would make it quite a difference of price of it, either with an open ditch, or a well filled ditch.” And the counsel said, “ They have a right to occupy it forever, if they wish to, or as long as their charter exists, or to abandon it if they please; there is nothing definite on that; and when they abandon it, they can leave it as they please.”

At this point counsel of the defendant said: “We object to the last statement made by the counsel, because the bond contemplates leaving the ground in good condition; if there was any negligent condition, that would be a separate remedy.” The court then said: “ Let the question be read to the witness, and let him answer as indicated by the question there. We will give you an exception and sealed bill.”

In pursuance of this direction by the court, the following question was put to the witness, which is substantially the first question above quoted: Q. “Mr. Culp, what would be the difference in the market value, a fair market value of the land before this pipe line was laid and after? ” A. “Well, I would say there would be a difference of anywhere from 900 to a 1,000 dollars.”

We are not inclined to sustain this assignment, because the question that was actually put to the witness and answered by him was, in itself, entirely proper, and according to our understanding of what the court said, the witness was directed to “answer as indicated by the question,” which, inferentially, would exclude from the answer anything else indicated by the counsel of the plaintiff. We are not to be understood, however, as approving of what took place preceding the answer of the witness; and especially of that which forms the subject of the objection. It was the right of the plaintiff to elicit from the witness, by questions, his knowledge of the matters which might properly form the basis for an estimate of damages; and, under cross-examination, it might be readily ascertained whether, in forming that estimate, the witness had included in it anything improper for consideration in that particular; but the judgment of the witness, as to the damage done, should be based upon his own observation and knowledge of the premises, and not on irrelevant suggestions made to him by counsel while in the witness box. Although it does not appear that what was said influenced the answer of the witness, yet in view of its having been mentioned for that purpose, the court might very properly have cautioned the witness to base his answer on his own knowledge rather than upon the suggestions by counsel of matters not proper for consideration. The damages recoverable in an action of this kind, are based upon, and have reference to, the conditions existing at the time of the location and construction of the pipe line, and its effect on the plaintiff’s property, and not upon an apprehension of injury from subsequent occurrences. Whether a pipe line company may afterward damage tbe property in removing tbe pipe, is wholly beyond tbe present inquiry. Tbe fifth assignment is overruled.

All tbe assignments of error, except tbe first, are overruled; for tbe reasons given that assignment is sustained, tbe judgment is reversed, and a venire facias de novo awarded.