166 Pa. 21 | Pa. | 1895
Opinion by
The complicated facts and proceedings in the cases included in this contest, unfortunately led to the trial on an erroneous view. There were but two ways in which the claim of the owners of the land taken by the incline plane company could be considered in estimating the damages.. First, the land might be treated as in fact what it appeared to be when the appellant located its road, a single, undivided and unimproved tract of seventeen acres, and the damages for taking part of it assessed with reference to the whole. The joint owners, by virtue of the uncompleted partition and the continuing joint interest in the proposed streets in the plan, might have maintained a joint
The owners, however, having in fact agreed upon the partition according to the plan, though nothing was yet of record in regard to it, were not bound to unite, but might proceed separately. But if they did so the right of each was as owner of a number of separate and disconnected pieces of land. There were no streets, nor in the ordinary meaning of the word were there any lots. All these were inchoate, existing only in intention, and subject to change or destruction at any time at the volition of the parties: Phillips v. Incline Plane Co., 153 Pa. 230. No damages therefore could be claimed directlj' on account of any of the land which was not on the line of the appellant’s road and of which no .part was taken. Any indirect damage that might accrue to such lots was recoverable if at all only for interference with rights of way possessed b}r the owner of them, over the land actually taken. Whether such damages could be recovered at all, under the rule laid down in Penna. Co. v. Penn. Schuylkill Valley R. R. Co., 151 Pa. 334, we do not decide at present, as it is not directly raised in the case, and apparently was not before the learned court below.
We cannot say therefore that the amendment allowed to the appellees was erroneous as matter of law, but it is plain that the evidence under it must be very carefully guarded. The case appears to have been tried on the view that the streets laid down on the plan were to be treated as actual streets, and the separate pieces of land in each case, as lots fronting on streets. This was erroneous. There were no streets except potentially, as parts of a contemplated use of the land, interference with which was not the subject of damage per se. The plan was evidence of the capacity of the land for improvement in a certain way: Wilson v. Gas. Co., 152 Pa. 566. And on the other hand it was competent for appellant to give evidence of equally advantageous use in a different way with which the incline would not interfere, or which it might aid. Such evidence on both sides was admissible because of its bearing on the damages to the plaintiff as owner of land taken, or of rights of way over such land, and not as owner of remote lots. It should be strictly confined to that aspect.
Judgment reversed and venire de novo awarded.
