107 Pa. 166 | Pa. | 1884
delivered the opinion of the court October 6th, 1884.
Neither the Act of April 13th, 1846, nor the Act of March 17th, 1869, provides that the tender of a bond to and acceptance by the lessor, or the approval of a bond to the lessor by the proper court, authorizes the Pennsylvania Railroad Company to enter upon laud in possession of the lessee. By the former Act, before land can be taken the bond must be made “ to the party claiming the damages,” and by the latter to the “ owner or owners thereof or parties interested therein.” Eby
Nor can the fourth and fifth assignments be sustained. No evidence was admitted that before the trespass the defendant had given a bond to anybody. The offer of the record at No. 52, April Term, 1880, containing the bond that had been given to Harris, was for the purpose of showing that the defendant had the right to appropriate the property, not to show good faith for the purpose of repelling punitive damages. A corporation vested with the right to take private property for public use, after payment of damages or giving security therefor, has no right to touch it before. Where it enters upon property without right, if liable only for actual damages, it can evade the law with impunity. In this case there is no evidence of wantonness or malice beyond that implied from a taking and appropriation without right. Nor is there evidence that the plaintiff assented to the taking. At most the evidence shows that he was satisfied with the manner in which the work had been done, not with the act of taking his property. Had the defendant shown that a bond had been given to the landlord in the belief that it was security also for the tenant, and that the entry was accordingly in good faith, the jury ought not to impose punitive damages; yet the fact would be for the jury. We are not convinced that there is error in the instructions relative to damages.
Had the record referred to in the sixth assignment been offered for the purpose of showing an outstanding title in a third party as a justification of the trespass, it would have been inadmissible. The purpose of the offer was not stated, and it was unnecessary to state it, unless asked by the opposite counsel or the court. Hence, if it was competent for any purpose it was error to reject it: Richardson v. Stewart, 4 Binn. 198; Benner v. Hauser, 11 S. & R. 352. As the cause was tried, a material question was the value of the leasehold
Tbe court properly ruled that with respect to the measure of damages it was competent for the plaintiff to prove the value of the leasehold interest over the rent received. But immediately following that ruling the plaintiff was permitted to say, “ If I had stayed on there rather than moved away, it would have paid me one thousand dollars a year.” If the question was so framed as to elicit that answer it was improper ; and if not so framed, impertinent matter injected into the testimony by the plaintiff as a witness ought not to be submitted to the jury. The stenographic report shows promptness on the part of defendant in objecting to the answer, and it ought to have been as promptly stricken out. The principle which had just been ruled by the court did not involve the opinion of the witness as to the profits of his business bad he remained two years. It was competent to prove the market value of the leasehold by the opinion of witnesses in the same manner as it would be the value of other property. That value is what the leasehold was worth — it was worth to the plaintiff the same sum as it was worth for sale and transfer, and the mode of ascertaining the sum is by testimony of witnesses upon its market value. If by reason of the taking of the property or its destruction tbe plaintiff was specially injured he is entitled to compensation for such injury, as for the time necessarily required in removing and the expenses of such removal, and for other loss directly resulting from the defendant’s act. That does not include estimated profits of future trade or business, or other supposed consequential injury. And compensation will not be given for the mental suffering of a party who would rather have stayed on the premises than have moved away.
The sixth, eighth and ninth assignments must be sustained.
Judgment reversed, and venire facias de novo awarded.