West Chester & Wilmington Plank Road Co. v. County of Chester, 182 Pa. 40

West Chester & Wilmington Plank Road Co. v. County of Chester

182 Pa. 40 | Pa. | 1897

Opinion by

Mr. Justice Green,

The learned court below very carefully and correctly charged the jury in the following words : “ The measure of damages is the value of the property at the time of taking, to the owners, not only by the mere value of the road itself, the mere structure or physical turnpike, its tollhouses and gates, but plaintiff’s entire property rights with the value of its franchise in connection with those property rights, under and by virtue of which they are used and enjoyed. The jury will readily understand *48that the mere possession of a roadbed without the privileges of exacting toll would be of but little account. Yarious elements enter into the determination of this question. The value of the company’s franchises, its rights and privileges, depends largely upon its earning capacity. The value of its roads, its toll-houses and gates, the amount of net tolls, the market value of its capital stock, are all elements to be considered in ascertaining the money value of the turnpike and its corporate franchise. . . . But you as jurors are required to consider this property just as it lay there, in the condition in which it was when it was taken, and its value then and there, with its accompanying franchises, under the conditions existing at and immediately prior to the time of its being taken.” There was much more to the same effect in the general charge, and in the answers to points, and it is beyond all question that in all that, was said by the court on the measure of damages there was absolute correctness and no error whatever. Thus in Montgomery Co. v. Bridge Co., 110 Pa. 54, we said: “ The bridge structure, the stone, iron and wood, was but a portion of the property owned by the bridge company and taken by the county. There were tbe 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.” In Mifflin Bridge Co. v. Juniata County, 144 Pa. 365, Paxson, C. J., said: “ It was held in Montgomery Co. v. Bridge Co., 110 Pa. 54, that where a bridge is taken by a county for public use under the Act of May 8, 1876, P. L. 131, the measure of damages is the value of the property to the owners, not to the county taking it, and that such value is to be ascertained, not only by the cost of the structure, but also by the value of its franchises. The value of its franchises depends largely upon its earning capacity.”

This was repeated in a turnpike case, viz, Turnpike Co. v. Clarion County, 172 Pa. 243, together with the following citation from the charge of the court below, viz, “ That the true measure of damages is just compensation for the loss suffered *49by plaintiff in consequence of the taking by defendant of plaintiff’s property, being tbe substructure, superstructure and approaches of the bridge together with the franchise or right to take tolls, and the jury have no right to take less.” To which our Brother Dean, delivering the opinion of this court, said, “ There could have been no more correct statement of the law.”

The learned court below followed these cases in the charge and answers, and yet the principal complaint in a number of the assignments of error is that the franchise was ignored, and that only the materials that composed the road were considered, both in the testimony and charge. We do not so understand the rulings, either on offers of testimony, or in answers to points.

As to the evidence received under the first assignment, it was offered and received manifestly for the purpose of showing the condition of the road at the time the turnpike was taken. Most assuredly this was entirely ■ competent. Undoubtedly it was proper for the defendant or the plaintiff to show precisely what was the condition, in a physical sense, of the property to be taken. If this turnpike was out of repair, having but a thin and irregular supply of hard material on its surface, if it had ruts and inequalities through the whole, or a portion of its length, would not the property be worth less as a whole, and in connection with the franchise, on that account ? It would be a strange proposition, and one which we cannot possibly sanction, that such evidence cannot be given, because the property must be valued as a whole, including the franchise, and that no other testimony can be received except such valuation in the aggregate. The value of such a property as a whole depends largely upon its physical condition for the purposes for which it is intended, and proof of the condition, therefore, is proof as to value. In no event can it be said that such testimony is irrelevant or incompetent. In Mifflin Bridge Company v. Juniata County, supra, the court below said to the jury, “I therefore charge you that in estimating the damages you are to take into consideration the value of the physical structure at the time of the taking; and this value must be arrived at by taking into consideration the length and width of the structure and ■ number of piers, the value of the masonry, the value of the fill and abutments, as well as the superstructure, and to that you add the value of the franchises.” We said upon this subject,

*50“ The witness, L. G. Brown, was asked as to the value of the bridge, by which I understand to be meant the superstructure only. This was objected to on the ground that Brown, having contracted for the erection of the bridge, should have been asked as to the contract price. We do not think this objection well taken. The true question was the value of the bridge, not what it cost. The contractor may have taken it at too low a figure or the owner may have paid too much. The county is entitled to pay for it at its actual value at the time of the taking.”

These considerations dispose of the first three assignments of error.

The fourth and fifth assignments cannot be sustained. The court did not state to the jury that the evidence did not show what the property cost. The affirmance of the third point of the defendant was correct. There was no evidence of the actual cost of the property. Not one of the witnesses whose testimony is referred to in support of these assignments gave any testimony whatever as to the actual cost o£ the property. They were not examined upon that subject. They were called and testified as to the value of the shares of capital stock. They argued that because the dividends were five and one half per cent on the capital stock of $14,250 the shares were worth par, and that is the whole effect of their testimony. Not one of them testified that the property of the plaintiff had cost $14,250. While if there had been evidence of the actual cost of the property, that subject would have been one of the elements to be taken into consideration, with the other matters mentioned, in determining what was the value of the property, including the franchise, at the time of the taking; in the absence of such testimony there was no error in the answer to the point. What the court did say upon the subject of the cost was entirely correct, thus, “ In passing upon the value of the turnpike road, toll-houses, tollgates, the property of the plaintiff, you are not to be controlled by the cost of the original construction. It is not a question of original cost but of value at the time of taking.” •The court then proceeded to illustrate the matter fully and with absolute correctness, so there could be no question of misunderstanding on the part of the jury. Of course the jury was not to be controlled by the element of cost, but were to consider all *51the elements affecting the question of value at the time of the taking.

The introduction of proof of the returns made by the officers of the company to the state authorities, as to the value of the plaintiff’s capital stock, was certainly legitimate. Those returns were the acts of the plaintiff’s officers. They were made under oath and constituted important official documents. They were evidence, therefore, on the subject of the value of the stock at the time of the taldng, and hence were proper for the consideration of the jury. The very question was ruled in the case of Mifflin Bridge Co. v. Juniata County, supra. We there say, “ It was clearly competent therefore for the defendant to show the value placed by the company upon its own stock, a valuation made upon oath by its own officers. It is no answer to this to say that the return was made by the officers and not by the stockholders. The officers were the duly constituted agents or representatives of the latter, and their act was the act of the corporation itself. The return was made in pursuance of the act of assembly, and was the official act of the corporation. Hence we need not discuss the cases cited as to the power of an agent to bind his principal by his declarations. They are not relevant. While its return does not conclude the bridge company upon the question of value, it is nevertheless competent evidence for the consideration of the jury, and is moreover important.” We do not think there is any force in the contention that all or none of the returns should have been offered and received. Each return is independent of the others and speaks for itself. If it was an admission against interest it was admissible for that reason, and its competency would not be destroyed or affected because there were other returns for other years.

The sixth and seventh assignments are not sustained.

We do not consider that there was any error in the parts of the charge complained of in the eighth and ninth assignments. The circumstance that unless the road was completed by March 16, 1899, the franchise was subject to forfeiture under the law, certainly was an element affecting value. If the franchise 'might by any possibility be subject to termination and forfeiture in so short a time, it would certainly be much less valuable than if it continued for a long period. And if in order *52to avoid that penalty it was necessary to double tbe length of tbe road by additional construction to that extent, most certainly that obligation would be of very great consequence in determining tbe present value of tbe franchise, and consequently of tbe property. If tbe business of tbe road was profitable and prosperous it would probably enhance tbe value of tbe property, but if tbe contrary was true, it would simply increase tbe burdens of tbe company, and might seriously impair the marketable value of the property. The assignments are not sustained.

Judgment affirmed.