O'Brien v. Schenley Park & Highlands Railway Co.

45 A. 89, 194 Pa. 336, 1899 Pa. LEXIS 771

Opinion

Opinion by

Mr. Justice Green,

The plaintiffs’ statement of claim set forth the ownership of an entire property extending on both sides of Forbes street, giving all its courses and distances, with improvements, consisting of a two-story frame dwelling house and out buildings erected thereon. By the testimony it appeared that the whole tract contained about four and one half acres, of which about two and a half acres were on the left side of Forbes street without any buildings, and about two acres with the buildings were on the right side of the street. The defendant’s railroad was located through the two and a half acre part of the tract, at a distance of about 160 feet back from Forbes street. The statement claimed damages to the entire property, and the verdict was general for $4,710, which must necessarily be considered as the sum representing the whole amount of damages sustained by the plaintiffs by reason of the location and construction of the railroad on the property as an entirety. Beyond all question no further claim for this cause can ever again be established for any part of this property. The claim for which the verdict was given is a unit, and it covers the whole of the property. As a matter of fact, it appeared on the trial that no damage whatever was inflicted upon the two-acre part lying on the right-hand side of Forbes street with the buildings on it. It was not only Forbes street which separated the two parts of the property, but a further distance of 160 feet of land lying on the opposite side of the street, and between it and the railroad. It was perfectly manifest that the location and construction of the road could not and did not affect the .part of the property on the right side of Forbes street, and this was so testified by the plaintiffs and their witnesses, and no attempt was made to prove any damage to that part of the property. In these circumstances we cannot possibly see any objection to the admission of the testimony to prove what was the actual state of the facts, to wit: that the injury was confined to the part of the property through which the road was laid. If that part of the property was injured and the other part was not injured at all, why could, not that fact be proved? We can see no reason why. We are clearly of opinion, therefore, that there was no tfierit in any of the objections that were urged upon the ground that the testimony showed injury only to a part of the property. If all the injury was confined to that part, and there was no injury to the other part, it follows that the injury to the part that was affected was the injury to the whole. This disposes finally of the first and second assignments of error, and of the same matter appearing in nearly all the other assignments. The assignments from three to nine, both inclusive, question in part the competency of the several witnesses to express opinions as to the value of the property, on the ground that they did not show sufficient qualifications to give opinions. We have carefully examined the testimony in relation to the qualifications to testify of each one of these witnesses, and we are of opinion that they were all sufficiently qualified to testify, a number of them possessing not only an adequate knowledge of the property but an intelligent comprehension of the subject of their testimony, and an ability to fortify their conclusions with a statement of reasons quite above the average of this class of witnesses. These objections are not sustained in any instance.

An objection was made to a question put to Beben, one of the plaintiffs’ witnesses, that he was asked to express an opinion of the value of the property, in view of its possibilities for being laid out in lots. The exact question to the witness was in these words: “What would you say was the fair value of the property as it stood immediately before the railroad was constructed; that would be in the summer of 1889? I don’t want you to take into consideration the laying out into lots, but the possibilities that it could be done and the possibilities of developing the property.” This was not an inquiry as to all the possible uses that could be made of the land, nor as to the erection of improvements, or the carrying on of business upon it, but merely an inquiry as to the value of the land, considering that it was possible to lay it out in lots. We think this was a proper question, and that it is positively ruled by our decision in the case of Wilson v. Equitable Gas Co., 152 Pa. 566. It must be borne in mind that the property in question was a rather large-sized piece of ground situate on a public street of a large city, this particular part of it without any buildings upon it, and manifestly capable of being laid out and sold in lots. We do not understand that an owner may not prove that fact as to property thus situated. On the contrary, such an obvious and advantageous use of the land situated as this is, would be a fundamental and essential feature in considering what its market value would be. If it were a piece of vacant land lying in the open country as part of a farm, with no indications of its being .marketable as town lots, the objection would be far more pertinent and would probably prevail. But land situated and constituted as this was, its possible disposition as city lots was an essential feature of its value, and something which the owner had a right to submit to the jury. In the case referred to, Wilson v. Equitable Gas Co., this was the very essence of the inquiry, and numerous questions were asked as to how and why the property was capable of being laid out and sold in town lots. ° The witness was allowed to go very much further and in much more minute detail than' was proposed in this case. He was allowed to testify as to the manner in which it might be laid out, how many lots could be got out of it, the size of them, how they might be arranged so as to bring the best price, and how much they might produce in this way, and to what extent the price would or might be affected by the defendant’s pipe line. It was also the fact that this was farm land, and there was no laid out and opened street running through it. Nevertheless we sustained the court below in allowing this testimony to go in. Paxson, C. J., delivering the opinion said: “ Upon the trial below it is apparent that the defendant proceeded upon the theory that if the plaintiff’s land, at the time of the appropriation, was used only as a farm, the inquiry was limited to the amount of damages, if any, sustained by the land as a farm, and the witnesses called by it in relation to the damages were examined upon that theory. On the other hand it was contended by the plaintiff that the inquiry was not so limited, but that in estimating the market value of the land everything which gives it intrinsic value is to be taTren into consideration, and is not to be limited to a particular use. The learned judge below adopted the plaintiffs’ view in this respect, and he is fully sustained by the authorities. In Shenango & Allegheny R. R. Co. v. Braham, 79 Pa. 447, it was held, ‘In estimating the market value of the land everything which gives it intrinsic value is a proper element for consideration. ... It is its general market value for any purpose that will induce persons to purchase it; that is the true test.’ . And in Allegheny v. Black, 99 Pa. 152, it was said: ‘In estimating the market value of land everything which gives it intrinsic value is to be taken into consideration, and it is not to be limited to a particular use.’ To the same effect is Cummings v. City of Williamsport, 84 Pa. 472, Penn. Schuylkill Valley R. R. Co. v. Cleary, 125 Pa. 442, Schuylkill River, etc., R. R. Co. v. Stocker, 128 Pa. 233, and Harris v. Schuylkill River, etc., R. R. Co., 141 Pa. 242. In the latter case, it was said by our Brother Mitchell, ‘The true test is the difference between the value of the entire lot as it was immediately before the taking and the value of wdiat was left of it after the taking. And in estimating the value of the lot before taking its possible and probable uses were important elements, and might be shown by the evidence of expert witnesses.’ In view of these authorities, and especially in view of the fact that the corporation defendant was endeavoring to limit the inquiry to the value of the land as a farm, we think it was competent for the plaintiff to show that a portion of it was ripe for building improvements or for any other purpose that enhanced its value.”

The foregoing authorities fully sustain the learned court below in ruling that the testimony offered was admissible. In point of fact the testimony was not given. The assignments of error from three to nine inclusive are dismissed.

There is no merit in the tenth and eleventh assignments. The evidence offered was not a contradiction of anything, and if the former owner placed a certain value upon the property, the best evidence of that fact would be that person’s testimony to that effect. There was no objection to any proof of the value of the property at that time by any legitimate testimony on that subject.

As to the thirteenth and fourteenth assignments, of course, the court could not have intended to say that the plaintiffs were deprived of the use of any part of the property except what was occupied by the railroad. The jury could not have been misled as to this, especially as the court explicitly said to them it was only the part covered by the railroad that was kept from the possession of the plaintiffs. The language complained of in the fourteenth assignment is nothing but a restatement of the undoubted law of the case. The twelfth assignment is not pressed and has no merit.

Judgment affirmed.