Opinion,
Mr. Justice Clark:
In the assessment of damages for land taken or injured by a railroad company, the rule is now well settled in Pennsylvania that the market value before and after the injury cannot be ascertained by evidence of particular sales, under special circumstances, of other properties alleged to be situated similarly to the property in question: Pittsburgh etc. R. Co. v. Patterson, 107 Pa. 461. In the case cited, we said: “ The selling price of lands in the neighborhood, at the time, is undoubtedly a test of value, but it is the general selling price, not the price paid for particular property. The location of the land, its uses and products, and the. general selling price in the vicinity are the data from which a jury may determine the market value. The price which, upon a consideration of the matters stated, the judgment of well-informed and reasonable men will approve, is the market value. A particular sale may be a sacrifice compelled by necessity, or it may be the result of mere caprice or folly; if it be given in evidence, it raises an issue collateral to the subject of inquiry, and these collateral issues are as numerous as the sales.” To the same effect is Pittsburgh etc. Ry. Co. v. Vance, 115 Pa. 331. It is competent to adduce evidence upon all matters bearing upon the location, condition', and quality of the land in question, and evidence of the general selling price of land in the neighborhood, but evidence of particular sales is not admissible.
But we do not understand the learned judge of the court below, in his charge to the jury, to have impinged upon this rule. He says: “ Before calling your attention to the rule given by the Supreme Court, let me say to you, that the first important inquiry is to ascertain the market value of the property, immediately before the injury was inflicted upon it or before the location and construction of the road. Wherever it can be ascertained by sales of lands adjoining, the market [31]*31value may be ascertained in that manner; when there have been no public sales, the market value must be ascertained from the knowledge and judgment of men who are acquainted with the property, and who, by their experience and judgment, can give the jury a fair, honest, and impartial opinion as to the real value of the property.”
The plaintiffs introduced no evidence of any particular sales; the defendants themselves, in their cross-examinations, did develop the fact that the Bernhart farm, adjoining these lands in question, had been sold at a forced sale, for $50 per acre, and that a small part of the McAllister farm, along the borough line of Bellefonte, had been sold at $200 per acre. For the introduction of this evidence the defendants are solely responsible, and apart from this, there was no evidence to which the remarks of the learned judge could apply. But it is plain, we think, not only from that portion we have quoted, but from the general tenor of the whole charge, that the reference of the court was to sales generally of adjoining properties, or, rather, to the general selling price in the neighborhood, and not to any particular sales. The language of this particular clause of the charge is fairly susceptible of this construction, and, taken in connection with the whole charge, we think is susceptible of no other. The learned judge, therefore, was quite right in saying to the jury that if there were no sales, that is to say, no sales from which the general selling price might be ascertained, the market value would be ascertained from the testimony of persons acquainted with the property, and who were able to speak from their knowledge and experience on this subject.
The only other assignment of error to the charge is to that part of it which relates to the alleged deterioration of the market value of the property, by reason of the increased burden of fencing. As to this the learned judge charged the jury with great clearness and accuracy, as follows: “ Another element of damages which the plaintiffs claim in this case is that of fencing ; not, as we understand the plaintiffs’ claim, for any particular sum of money to be expended for fencing that part of the road, but the plaintiffs allege that by reason of the peculiar location of this road over the plaintiffs’ land, there is an absolute necessity to fence the road, in order to conveniently faim [32]*32the place, and protect the stock and property on the place; that this is a burden cast upon the farm, which detracts from its market value. It is only in the sense that it may detract from the market value of the property that you may consider it. You do not consider it as so much money for so many panels of fence, but you consider whether or not additional fencing is made necessary by this location of the road, and whether or not this casts a burden on the farm which detracts from its market value, and, just to the extent it detracts from its market value, to that extent only you consider it in estimating the damages.”
But the defendants have offered in evidence a special act of assembly, applying to the county of Centre, approved April 9, 1868, P. L. 779, which provides that it shall be the duty of each company, owning or operating a railroad within that county, to erect and maintain a suitable fence, five feet high on each side of their tracks, except where their road passes through a village, borough, or city, or at public road crossings, and to build, erect, and maintain such cattle guards, at such crossings, as will prevent horses, cattle, etc., from going upon the tracks; and, in case of the failure of any company to comply with this act, they are held “ answerable to the owner or owners of any horses, cattle, sheep, or swine ” for any injury inflicted in consequence of such neglect, to the full value of the property injured ; and, if the fences so built are suffered to be destroyed or broken down, for a penalty of fifty dollars for each place where they are suffered so to remain for a period of ten days, etc.
The defendant’s contention is that, inasmuch ás by this act it is made the duty of the defendant company, under the pen-1 alties prescribed, to fence their tracks, erect cattle guards, etc., the burden of increased fencing was not a proper matter for the consideration of the jury in the adjustment of damages. To raise this question the defendants submitted a point substantially as follows: “ That inasmuch as the special act of assembly for Centre county, approved April 9, 1868, provides, [reciting the act in extenso,] the jury cannot allow, as an element of the damages suffered by the plaintiffs, the cost of erecting a fence on both sides of said railroad, for the purpose of keeping the cattle of the owners, tenants, or other parties from ■straying upon the railroad, and preventing such cattle from being injured or killed.”
[33]*33The defendant was certainly entitled to an affirmative answer to this point, for in no aspect of the case, and under no circumstances, were the plaintiffs entitled to recover “the cost of erecting a fence on both sides of the railroad.” Whilst the answer of the court is not affirmative in form, it contains, we think, a correct statement of the law. “ The cost of fencing,” says the learned judge, “ cannot be recovered as a distinct item of damages; but the question of how much the burden of fencing will detract from the value of the land, may be considered by the jury.
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Opinion,
Mr. Justice Clark:
In the assessment of damages for land taken or injured by a railroad company, the rule is now well settled in Pennsylvania that the market value before and after the injury cannot be ascertained by evidence of particular sales, under special circumstances, of other properties alleged to be situated similarly to the property in question: Pittsburgh etc. R. Co. v. Patterson, 107 Pa. 461. In the case cited, we said: “ The selling price of lands in the neighborhood, at the time, is undoubtedly a test of value, but it is the general selling price, not the price paid for particular property. The location of the land, its uses and products, and the. general selling price in the vicinity are the data from which a jury may determine the market value. The price which, upon a consideration of the matters stated, the judgment of well-informed and reasonable men will approve, is the market value. A particular sale may be a sacrifice compelled by necessity, or it may be the result of mere caprice or folly; if it be given in evidence, it raises an issue collateral to the subject of inquiry, and these collateral issues are as numerous as the sales.” To the same effect is Pittsburgh etc. Ry. Co. v. Vance, 115 Pa. 331. It is competent to adduce evidence upon all matters bearing upon the location, condition', and quality of the land in question, and evidence of the general selling price of land in the neighborhood, but evidence of particular sales is not admissible.
But we do not understand the learned judge of the court below, in his charge to the jury, to have impinged upon this rule. He says: “ Before calling your attention to the rule given by the Supreme Court, let me say to you, that the first important inquiry is to ascertain the market value of the property, immediately before the injury was inflicted upon it or before the location and construction of the road. Wherever it can be ascertained by sales of lands adjoining, the market [31]*31value may be ascertained in that manner; when there have been no public sales, the market value must be ascertained from the knowledge and judgment of men who are acquainted with the property, and who, by their experience and judgment, can give the jury a fair, honest, and impartial opinion as to the real value of the property.”
The plaintiffs introduced no evidence of any particular sales; the defendants themselves, in their cross-examinations, did develop the fact that the Bernhart farm, adjoining these lands in question, had been sold at a forced sale, for $50 per acre, and that a small part of the McAllister farm, along the borough line of Bellefonte, had been sold at $200 per acre. For the introduction of this evidence the defendants are solely responsible, and apart from this, there was no evidence to which the remarks of the learned judge could apply. But it is plain, we think, not only from that portion we have quoted, but from the general tenor of the whole charge, that the reference of the court was to sales generally of adjoining properties, or, rather, to the general selling price in the neighborhood, and not to any particular sales. The language of this particular clause of the charge is fairly susceptible of this construction, and, taken in connection with the whole charge, we think is susceptible of no other. The learned judge, therefore, was quite right in saying to the jury that if there were no sales, that is to say, no sales from which the general selling price might be ascertained, the market value would be ascertained from the testimony of persons acquainted with the property, and who were able to speak from their knowledge and experience on this subject.
The only other assignment of error to the charge is to that part of it which relates to the alleged deterioration of the market value of the property, by reason of the increased burden of fencing. As to this the learned judge charged the jury with great clearness and accuracy, as follows: “ Another element of damages which the plaintiffs claim in this case is that of fencing ; not, as we understand the plaintiffs’ claim, for any particular sum of money to be expended for fencing that part of the road, but the plaintiffs allege that by reason of the peculiar location of this road over the plaintiffs’ land, there is an absolute necessity to fence the road, in order to conveniently faim [32]*32the place, and protect the stock and property on the place; that this is a burden cast upon the farm, which detracts from its market value. It is only in the sense that it may detract from the market value of the property that you may consider it. You do not consider it as so much money for so many panels of fence, but you consider whether or not additional fencing is made necessary by this location of the road, and whether or not this casts a burden on the farm which detracts from its market value, and, just to the extent it detracts from its market value, to that extent only you consider it in estimating the damages.”
But the defendants have offered in evidence a special act of assembly, applying to the county of Centre, approved April 9, 1868, P. L. 779, which provides that it shall be the duty of each company, owning or operating a railroad within that county, to erect and maintain a suitable fence, five feet high on each side of their tracks, except where their road passes through a village, borough, or city, or at public road crossings, and to build, erect, and maintain such cattle guards, at such crossings, as will prevent horses, cattle, etc., from going upon the tracks; and, in case of the failure of any company to comply with this act, they are held “ answerable to the owner or owners of any horses, cattle, sheep, or swine ” for any injury inflicted in consequence of such neglect, to the full value of the property injured ; and, if the fences so built are suffered to be destroyed or broken down, for a penalty of fifty dollars for each place where they are suffered so to remain for a period of ten days, etc.
The defendant’s contention is that, inasmuch ás by this act it is made the duty of the defendant company, under the pen-1 alties prescribed, to fence their tracks, erect cattle guards, etc., the burden of increased fencing was not a proper matter for the consideration of the jury in the adjustment of damages. To raise this question the defendants submitted a point substantially as follows: “ That inasmuch as the special act of assembly for Centre county, approved April 9, 1868, provides, [reciting the act in extenso,] the jury cannot allow, as an element of the damages suffered by the plaintiffs, the cost of erecting a fence on both sides of said railroad, for the purpose of keeping the cattle of the owners, tenants, or other parties from ■straying upon the railroad, and preventing such cattle from being injured or killed.”
[33]*33The defendant was certainly entitled to an affirmative answer to this point, for in no aspect of the case, and under no circumstances, were the plaintiffs entitled to recover “the cost of erecting a fence on both sides of the railroad.” Whilst the answer of the court is not affirmative in form, it contains, we think, a correct statement of the law. “ The cost of fencing,” says the learned judge, “ cannot be recovered as a distinct item of damages; but the question of how much the burden of fencing will detract from the value of the land, may be considered by the jury. If the location of the road through the farm be such as necessitates a change of internal fences, or necessitates additional fencing, either along the lino of the road, or elsewhere upon the farm, so as to render it convenient for use as a farm, and if the jury believe from the evidence that this casts a burden upon the farm which detracts from its market value, then it is a proper subject to be considered by the jury; but it is to be considered in comparison with the advantages, if any, only as affecting the market value of the land. We think this is a true rule, notwithstanding the special act of assembly relating to this county. For further answer, we refer to our general charge on this subject.”
The point assumes, without proof, and without reason, that the only necessary purpose of a fence is “ to keep the cattle of the owners, tenants, and other parties from straying upon the railroad, and to prevent them from being injured or killed; ” and argues, from this assumption of fact, that, as the railroad company is held for the damages sustained in all such cases, the owner must rely upon the responsibility of the company, or bear the burden himself. But the learned judge took a different view of the matter; he submitted the question to the jury, whether or not the location of the road necessitated a change of internal fences, or additional fencing, either along the road, or elsewhere upon the farm, so as to render it convenient for use as a farm, and instructed the jury, if they should believe from the evidence that this necessity cast a burden on the farm, it was a proper matter for fclieir consideration.
Although this special act declares the duty of the company to fence their tracks, and fixes the penalty for their neglect, non constat that they will perform that duty; and, if they do not, but pay the penalties provided, from time to time as they accrue, [34]*34they may perhaps be held, subject to no further responsibility under the act. But the absence of fences along the road involves other inconveniences and loss to the landowner than the mere killing or injuring of his horses, cattle, etc. Fences are required to protect his growing crops from the invasions of his own and his neighbor’s stock, which may have access over the defendant’s tracks; to prevent his own horses, cattle, etc., from straying from home and into the fields of his neighbors, and to keep them within easy and convenient bounds for use and service upon the farm. Besides, he may not choose to suffer the vexatious delays and uncertainties of the law, in recovering the value of his property, when he has a fair market more suitable for his interests and convenience. If the requirements of the statute were absolute, and the responsibility of the company commensurate with the injuries which might accrue, a different question perhaps would be presented. But as the company is held to fence the tracks only by virtue of the statute, and the measure of responsibility for neglect is particularly defined, it follows that no general responsibility exists; as to this, however, I speak for myself only; the question is not before us, and is therefore not decided.
The argument of the defendant’s counsel is that it is unjust and unreasonable that the company should be held for damages upon the footing of this increased burden of fencing to the owner, and yet be held to the duty of fencing their road, under the penalties stated; but it must be conceded that it is equally unjust and unreasonable that the landowner, in order to have the convenient and ordinary use of his farm, should be subjected, by the act of the company, to the burden of increased fencing without compensation. The constitution and the laws of the state require that a railroad company, invested with the privilege of taking private property for public use, shall make just compensation for all property taken, injured, or destroyed in the construction of its road; and, whatever other duties are or may be enjoined upon the company by the legislature, this is the fixed measure of the company’s responsibility. With the wisdom of the statute we have nothing to do; if it operates unjustly to the company, their appeal should be to the legislature. We are of opinion the learned judge ruled the defend ant’s point correctly.
[35]*35The fourth assignment of error is without merit. In order that a witness may be competent to testify intelligently to the market value of land, as we said in Pittsburgh etc. Ry. Co. v. Vance, supra, “be should bave some special opportunity for observation; be should, in a general way and to a reasonable extent, have in his mind the data from which a proper estimate of value ought to be made ; if interrogated, he should be able to disclose sufficient actual knowledge of the subject to indicate that he is in condition to know what he proposes to state, and to enable the jury to judge of the probable proximate accuracy of bis conclusions.” But Mr. Struble, the witness, was a farmer, residing in the same valley; be had known the property for forty years and upwards, passing and repassing it to and from Bellefonte, the county-seat. The greater part of the land, he says, could be seen from the public road; but be bad been upon the land, had seen the buildings frequently, and thought he was sufficiently conversant with the selling price of lands in tbe neighborhood to give an opinion. He seems to have had a general knowledge of tbe land by actual observation of it; and tbe value and effect of his testimony was for tbe jury.
Upon a careful examination of tbe whole case, we find no cause for reversal of this judgment.
The judgment is therefore affirmed.