Pennsylvania & New York Railroad & Canal Co. v. Bunnell

81 Pa. 414 | Pa. | 1871

Mr. Justice Sharswood

delivered the opinion of the court,

This was a proceeding in the court below to assess damages for land taken by the Pennsylvania and New York Canal and Railroad Company, under the eleventh section of the Act of Assembly of February 19th 1849, Pamph. L. 84. Exceptions were filed to th'e report of the viewers, the dismissal of which has been assigned here for error. It will not be necessary to consider them seriatim— a few general principles will dispose of them all.

The idea that all amendment must depend upon statute is essentially erroneous. Every court of record has at common law a power of amendment, the difference between which and that which depends upon the statutes of amendment and jeofails, is that it is a matter within the legal discretion of the court, while the latter is of right. All mistakes originally were amendable the same term, because the record is a roll of that term, and so in the breast of the court during the whole term, and then a new roll might be brought in the cause, and consequently the same roll may be amended: Bacon’s Abr., title Amendment A. But this limitation, that it must be in the same term, was not very strictly adhered to, for as long as the cause was in paper, that is, at any time before final judgment was entered and the roll made up, amendment might be made, although the term had gone by: 1 Tidd’s Practice 697. Hence, in Bondfield v. Milner, 2 Burr. 1098, a qui tam action for usury, and therefore not within the statutes of amendment, it was allowed, Lord Mansfield saying: “ The rule is, that whilst all is in paper you may amend.” It has been accordingly laid down as a general principle, well supported by the decided cases, that every court of record has power over its own records and proceedings as long as they remain incomplete, and until final judgment is rendered, and until that time it is the established practice in such courts to regard all actions, whether on the docket of the existing or a former term, as within the jurisdiction and control of the court: 1 Tidd’s Practice 161, note JB, and cases there cited. Any such distinctions, however, have been entirely repudiated in this state,.and the general power of amendment asserted to exist in the court whether before or after judgment. “ The old notion,” says Chief Justice GrlBSON, “ that the record remains in the breast of the court only till the end of the term, has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books and those of our neighbors.' The power of the court to amend being established, the conclusiveness of the record as amended follows of course. Even were the amendment erroneous, the regularity of it could not be inquired of collaterally ; and not being under the Act of 1806, it could not be inquired of even directly on a writ of error:” Rhoads v. The Commonwealth, 3 Harris 276. This disposes of the first exception.

The second and third exceptions complain of the insufficiency of the amended petition, but do not specify wherein. It seems from the printed argument that it was considered that the amended petition was to be taken by itself and not in connection with the original petition. It is plain, howmver, that although styled an amended petition, it was, in reality, an amendment to the petition, and taking both together we consider , them as sufficient. The fourth, fifth, sixth and seventh exceptions are satisfactorily disposed of in the opinion of the learned judge below; and the eighth, that the damages awarded are excessive, is clearly not a matter of review here. Proceedings affirmed.

On .the 30 th of August 1871, the cause was removed by the defendants to the Court of Common Pleas of Susquehanna county, where the issue on the appeal was tried, October 13th 1874, before Streeter, P. J.

The testimony of the plaintiff was that he was the owner of a farm-of 270 acres of land, through which the railroad was completed in the spring of 1869; before the road was built the farm was worth $28,000.

1. It was proposed to ask: “ What was the fair market value of this farm immediately after the construction and successful operation of this road upon it only as affected by such construction.

The offer was objected to, because

“1. It leaves the* witness to allow in his estimate of value depreciation from consequential and speculative causes.

“ 2. It does not limit him to purely legal subjects of depreciation, or injury from the road.

“ 3. It is incompetent for him to speak of market value without first showing whether he had any means of knowing such value,

i. e., legal knowledge on that subject.”

The offer was admitted and a bill of exceptions sealed.

He said after the road was completed his farm was worth but |21,000. It was injured by its being cut into two parts, leaving two narrow strips between the canal of the defendants and their railroad; the land between the railroad and canal was about seven acres, there were about three acres of the land taken by the railroad ; the land was very productive.

2. The plaintiff offered to prove that the canal was at the time of the completion of .this road in successful operation, and also the means of transportation of the products from his farm, for the purpose of showing how the farm was situated when the injury was done, and also as a means of assisting the jury in arriving at its value.

Objected to, because,

“ 1. This subject of inquiry is incompetent.

“ 2. It opens -a collateral question that is irrelevant in this issue.

“ 3. The canal being owned by defendants, the damages, if any, caused by it, have been already paid by defendant.

“4. The defendants had a right to abandon the canal and put this other improvement in its place, and their doing so is not now to be complained of. They are not to claim, as ground of damage, benefits of the canal (which they made defendants pay for), so making double profit out of defendants.”

The offer was admitted, and a bill of exceptions sealed.

Plaintiff said that the canal was in operation at the time the railroad was constructed, about 25 rods from his house; he transported his crops and received coal by it much cheaper than by the railroad; the construction of the railroad injured his farm by taking away a large number of apple trees also.

3. It was proposed to ask “how much, if any, does the burden of fencing the railroad detract from the value of the farm ?”

This was objected to by the defendant.

' “1. The question, in order properly, to guard the answer of the plaintiff (witness), should be, ‘ how much less would the whole farm sell for in market, on account of additional fencing made necessary by the road ?’

“ 2. The witness has no right to estimate a sum, the interest of which will keep up the fence.”

The offer was admitted, and a bill of exceptions sealed.

The plaintiff said the additional burden of fencing resulting from the construction of the railroad would be about $2136. The amount of fencing would be about 240 rods. No fence would be safe but a stone fence, which would have to be quarried a mile and a quarter aw'ay, and drawn there. It would cost $8 per rod. Keeping up the fence would be another item. There was a board fence put up by defendants, but it was not sufficient to protect the cattle from the railroad.

4. Defendants, on cross-examination, proposed to prove by the plaintiff that the defendants owned the canal; that witness opposed its construction, claiming it as a damage to him ; that it overflowed a part of the said seven acres; and that he received of this defendant $3400 damages on account of said canal.

Plaintiff objected to the offer: that it is irrelevant and incompetent ; nothing is claimed in this suit for any damage done by the canal.

5. Also, to ask him if he had not stated that the canal was a great damage to his farm; if he did not say so to the agents of the company, and demand of them $10,000 on account of that injury.

Roth offers were objected to and rejected, and bills of exceptions sealed.

6. Plaintiff called W. B. Harding, and proposed, to ask him “ what was the fair market value of the farm in 1866 or 1867, before the railroad was projected and laid upon it.”

This was objected to by defendants, on the ground that “ the witness is not competent to speak of value until the ground is laid, by showing that he had some legal knowledge of value that qualifies him to speak.”

The offer was admitted, and a bill of exceptions sealed.

He fixed the value of the farm at about $27,000 before the road was made. He testified to many particulars in which it was injured by the construction of the railroad, and fixed its value after the construction of the road at $21,000.

On cross-examination, the defendants proposed to ask him,

7. “ If, before the road was made, the nearest post-office to Bunnell’s was not at Russell Hill, four miles off, and if it was not now at Vosburg Station, and if that was no benefit to the place?”

This was objected to' by the plaintiff, rejected by the court, and a bill of exceptions sealed.

A number of witnesses for the plaintiff testified as to the value of the farm before and after the construction of the railroad, fixing it at about the sum the plaintiff and Harding had given, and stating, about the same particulars as making up the damage. Amongst others,

8. Plaintiff called J. Lee, and proposed to ask him “ whether the location and the construction of this railroad upon the farm of plaintiff was an advantage or disadvantage to it, and in what way.”

This was objected to by defendants, because:

“ 1. This question draws out an answer that allows for remote and speculative injuries.

“ 2. The witness is not to judge what are legal damages and what not.

“ 3. Nor is he to judge and swear what is advantage and what is disadvantage.”

The offer was admitted, and a bill of exceptions sealed.

Defendants examined a number of witnesses, in answer to the plaintiff’s case. Some of them fixed the damages at a very much smaller sum than the plaintiff’s witnesses, and the others thought no damages at all had been sustained by the plaintiff.

They gave evidence of the prices which had been offered for other farms in the neighborhood, and for which some of them had been sold.

On motion of plaintiff’s attorney the court struck out all the evidence relating to the prices offered for other farms in the neighborhood, and for which some had been sold.

The following are points of defendants with their answers :—

“ 1. Plaintiff’s sworn petition and claim, which was the origin and foundation of the present proceedings and trial, limiting his claim to $3000, it should stand as the limit here.”

“ This point is answered in the negative. The fact stated in this point is persuasive evidence against the plaintiff, and1 should be considered by the jury ; but we cannot say, as matter of law, that the plaintiff is limited to the amount set out in his petition.

“ 4. The cost of making the railroad fences .should not be allowed, for the company made them ; nor should the cost of stone Avail (Avhere the stone is one and a half miles off) be reckoned by the jury at $8 per rod, or at any price ; nor should a sum be set aside and allowed, the interest of which would keep it in repair. Put it should be, how much less would the farm bring in market, by reason of the burden of keeping it up ?”

“ This point is affirmed, with this qualification : If the fence built by the company was a poor fence, and not an ordinary and reasonably good one, the jury may take into consi deration the expense of making it such ; as well as the expense of keeping it in repair ; and say how much this burden of repairing and keeping in repair will detract from the market value of the whole property.”

The court further charged:—

“ Was the land of the plaintiff injured in its market value or benefited by this improvement ? This is the simple inquiry. . If injured, to what extent? Compensation is to be allowed to the amount of damage sustained by the owner of the property. [In arriving at a conclusion you may properly inquire what the property would have sold for immediately before and after the road was constructed and in successful operation; being particular to consider whether the increase in value, if any, arises from the improvement in question, or from some other cause.]

M. B. Little and J. B. G-owen, for plaintiffs in error. —

Direct injuries only are to be regarded; those consequential are to be rejected : Cleveland & Pittsburg Railroad Co. v. Speer, 6 P. F. Smith 326 ; Watson v. Pittsburg & Connellsville Railroad Co., 1 Wright 469. The opinion of witnesses must be preceded by evidence that they are persons of skill, &c.: Carr v. Northern Liberties, 11 Casey 324; Searle v. Lackawanna & B. Railroad Co., 9 Id. 63; Railroad Co. v. Hiester, 8 Barr 450; White Deer Creek Imp. Co. v. Sassaman, 17 P. F. Smith 421.

“ If you find from the evidence that the plaintiff’s land was increased in value by the construction of the road, that increase in value may .be set off against the damages inflicted upon the property by its construction. Consider, then, the real damages done to the property, which are direct and tangible, not consequential, speculative, and contingent; and then inquire whether the whole property was increased or diminished in value by means of the construction of the railroad. In other words, what was the market value of the land just before the road was projected; and what was its market value when the road was completed and in successful operation, as affected by the construction of the road ? The difference, if there were any, in favor of the plaintiff, is the amount he is entitled to recover, with the interest from the time the company entered upon and took possession of his land.”

The verdict was for the plaintiff for $4080.

The defendants removed the record to the Supreme Court, by writ of error No. 104, to January Term 1875.

They assigned for error:—

1. Admitting the evidence mentioned in the first bill of exceptions.

2. That mentioned in the sixth bill of exceptions.

3. That mentioned in the eighth bill of exceptions.

4. That mentioned in the second bill of exceptions.

5. 6. Bejecting the offers of defendant mentioned in fifth and sixth bills of exceptions.

7. Admitting the evidence mentioned in the third bill of exceptions.

8. Bejecting the offer of defendant mentioned in the seventh bill of exceptions.

9. Striking out the evidence of defendant in relation to prices which had been offered for other farms in the neighborhood, and for which some of them had been sold.

10. The answer to defendants’ first point.

11. The qualification of the answer to the defendants’ fourth point.

12. The part of the charge in brackets.

This writ of error was argued in the Supreme Court, March 17th 1876,

before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Mr. Justice Mercur, having been of counsel in the case, did not sit.

As to the fencing, the question should have been, “ How much less would the whole farm sell for in the market on account of additional fencing made necessary by the road:” Delaware Railroad Co. v. Burson, 11 P. F. Smith 380.

The first point should have been affirmed. No declaration is necessary after an appeal: Lehigh Valley Railroad Co. v. Lazarus, 4 Casey 203. The sum mentioned in the petition is the amount claimed, and the issue is to try its validity. The amount claimed in a declaration binds the plaintiff, even in a common-law action.

W. JET. Jessup, for defendant in error. —

The market value of property must depend on the opinion of witnesses : Brown v. Corey, 7 Wright 506. The true measure of damages is the difference of the market value before and after the construction of the road; Watson v. Pittsburgh & Conn. Railroad, 1 Wright 481; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411.

The cost of additional necessary fencing issto be taken into consideration, as being the direct result of the construction of1 the road: Watson v. Pittsburgh & Conn. Railroad Co., 1 Wright 480 ; Brown v. Corey, 7 Id. 505 ; Western Penna. Railroad v. Hill, 6 P. F. Smith 460; Patten v. Northern Central Railroad, 9 Casey 426. Evidence of the price obtained for neighboring property was properly stricken out: E. Penna. Railroad v. Hiester, 4 Wright 53; Chapin v. Boston & Portland Railroad, 6 Cushing 422; Upton v. S. Reading Railroad, 8 Id. 600 ; Wyman v. Lee and Cambr. Railroad, 13 Metc. 327.

Mr. Justice Sharswood

delivered the opinion of the court, May 8th 1876.

The first two assignments of error are to the admission of an offer by the plaintiff below, to ask a witness what was the fair market value of the plaintiff’s farm before and after the construction of the road upon it, only as affected by such construction. The objection was that it left the witness to allow speculative and consequential causes of depreciation, instead of purely legal ones, in his estimate. That the true measure of damages is the differerence between the market value of the property before and after the construction of the road, so far as that difference, was caused by the construction, is not denied. It is not easy to see how the question could have been more accurately framed. Market value is what the property would sell for. As was said by the court, in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411, “ The only safe rule is to inquire what would the property, unaffected by the obstruction, have sold for at the time the injury was committed? What would it have sold for as affected by the injury ? The difference is the true measure of compensation.” This accords with all that has been held in subsequent cases, of which it will be enough to refer to Brown v. Corey, 7 Wright 495; Delaware, Lackawanna & Western Railroad Co. v. Burson, 11 P. F. Smith 369; East Pennsylvania Railroad Co. v. Hottenstine, 11 Wright 28. Another objection was, that it did not appear that the witnesses had competent knowledge to speak upon the subject. The market value of land is not a question of science and skill, upon which only an expert can give an opinion. Persons living in the neighborhood may be presumed to have a sufficient knowledge of the market value of property with the location and character of the land in question. Whether their opinion has any proper ground to rest upon, or is mere, conjecture, can be brought out upon cross-examination. Such opinions have always been received. “ It is a kind of evidence,” said Chief Justice Tilghman, in Kellogg v. Krauser, 14 S. & R. 142, “ so commonly admitted, without dispute or objection, that I have no doubt of its legality:” Brown v. Corey, 7 Wright 506; Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith, 321.

The 3d assignment is, that the plaintiff was allowed to ask a witness whether the location and construction of this railroad upon the plaintiff’s farm was an advantage or disadvantage to it, and in what way. It seems to be considered that this question calls for an opinion which would embrace law as well as fact. It may be that there are consequential damages for which the law allows no recovery. But when the witness is asked in what way the road was an advantage or disadvantage, surely the answer must show whether it would fall within the rule. It would be hard to frame a question that would not either be open to this objection or to a more decisive one, of being leading : White Deer Creek Improvement Co. v. Sassaman, 17 P. F. Smith 421.

The 4th, 5th and 6th errors assigned may be considered together. There was no inconsistency in the rulings of the court. The fact that before the railroad was constructed the canal afforded the plaintiff a cheap and sufficient means of conveying his products to market,, was surely material; and the fact that it belonged to the defendants and might , be abandoned by them, did not vary the aspect of the case. In the damages which the plaintiff originally received for the construction of the canal, it is to be presumed that the advantage he derived from it as a highway to market was duly considered. It may be that the abandonment of the canal by the defendants was damnum absque injuria. But the fact that it was there was an element in the assessment of the damages which was important. Nor was it material how much the plaintiff had demanded or received for the construction of the canal.

As to the 7th assignment, the question “ how much (if any] does the burden of fencing the railroad detract from the value of the farm ?” was entirely proper-. Value meant market value. That was what the attention of the witness had been called to just before. The question then was the same as that which the learned counsel for the defendants thought ought to have been put: “ How much less would the whole farm sell for in market on account of additional fencing made necessary by the road?” The question was in the very words used in the charge of the judge below, and afterwards in this court, in Delaware Railroad Co. v. Burson, 11 P. F. Smith 380.

We find no error in the rejection of the evidence that after the construction of the railroad the post-office was moved to a point nearer to the farm. That could not have affected the market value, or if it did, it is not easy to see how it was brought about by the construction of the railroad. It might be removed by the government at any time.

As to the 9th error, which relates to the striking out of the defendant’s evidence in relation to the prices offered and paid for other properties in the neighborhood, it is sufficient to say that this ruling of the learned judge below is fully supported by the determination of this court in East Pennsylvania v. Hiester, 4 Wright 53, in which it was held that in such a proceeding as this evidence of the price paid or amount received for land in the neighborhood in particular is inadmissible. The only proper test is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value, or the general selling price of land in the neighborhood.

We are of opinion that the answer of the court to the defendants’ first point was correct. The plaintiff was not concluded by the amount claimed in his first petition, which the court granted him leave to amend. That the court had power to allow the amendment is clear: Pennsylvania Railroad Co. v. German Lutheran Congregation, 3 P. F. Smith 445. The learned judge properly admitted it as persuasive evidence to the. jury of the estimate the plaintiff had himself put upon his damages.

The qualification of the affirmance of the defendants’ fourth point was entirely right, in view of the evidence in regard to the fence erected by the defendants as not sufficient for the purpose.

We do" not fully understand the criticism made in the I3th assignment to that part of the charge in which the court instructed the jury to be' “ particular to inquire whether the increase in value came from the railroad or some other cause.” It is not objected that it was wrong, but that it was emphatic. That rather involves a question of taste as to style, which we do not sit here to consider. But the clause thus extracted and objected to forms but part of the sentence, and the whole, taken together, is not even subject to the objection of being too emphatic. It was but a very proper caution-to the jury. The judge said: “In arriving at a conclusion you may properly inquire what the property would have sold for immediately before and after the r.oad was constructed and in successful operation, being particular to consider whether the increase in value, if any, arises from the improvement in question, or-from some other cause.”

On the whole we find no error in the record.

Judgment affirmed.