Schuylkill River R. v. Stocker

18 A. 399, 128 Pa. 233, 24 W.N.C. 455, 1889 Pa. LEXIS 787

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: October 7, 1889
• Docket: No. 233
• Status: Published

Opinion

Opinion,

Mb. Justice Green :

The witness, Nathaniel E. Janney, was examined on behalf of the plaintiffs to prove the amount of damage done to the land of the plaintiffs, by reason of the location and construction of the defendant’s railroad upon and through it. The entire property is a tract of unimproved land, containing about eighty-four acres, lying in the southern part of Philadelphia. Oregon avenue and Moyamensing avenue are streets plotted, but the former not opened, traversing the tract east and west and parallel to each other. The whole tract is continuous and extends north of Oregon avenue and south of Moyamensing avenue. The railroad is laid upon Oregon avenue, running - across the tract, and takes about one and seven tenths acres. No streets are opened on the tract, except Moyamensing avenue, which was an old country road recognized on the public plans. The property extended about five ór six squares north and south of Oregon avenue. Mr. Janney being interrogated as to his acquaintance with the property, said that he had visited it for the purpose of ascertaining its value in the early part of 1887. He said he looked over the property fully except the portion south of Moyamensing avenue, he did not go into that; he had been familiar with it from passing along the avenue, but not at this time. He made inquiry as to the selling price of several properties at a distance of one to two miles from the Stocker farm. He was then asked to state at what figure he valued the ground along Oregon avenue, along the line upon which the railroad was built. To this objection was made, but the question was admitted under exception, and the witness proceeded to testify that he valued the ground on Oregon avenue at $5,000 per acre. He was then asked to value the part of the tract north of Oregon avenue, when, after replying that he had just fixed in his mind the value of that general piece, he was asked to state its value in December, 1885, to which he replied that in his judgment there was no material difference in value between 1885 and the time he examined it, which was in 1887. This evidence was objected to and admitted under exception.

The further examination of the witness developed the fact that the land along Oregon avenue consisted of two pieces, one north of the avenue containing a little over thirteen acres, and the other south, about eighteen acres, and these two pieces the witness valued at $5,000 per acre. He was then asked to describe the effect of building the road upon these two pieces, which being objected to on the ground that the witness must testify as to the effect upon the whole property, the objection was overruled, it being stated by counsel that the question would be followed by asking the witness as to his judgment of the effect upon the entire property. Exception was taken by the defendant, and the witness then testified that the effect was to depreciate the whole of the property immediately north and south of Oregon avenue, containing together thirty-one and eight tenths acres, twenty per cent of its value, which with the ground taken amounted to $40,270. He next answered that he thought the railroad would not affect the value of the part below Moyamensing avenue, one way or the other. On cross-examination he was asked: “ Q. Give the value of the entire Stocker farm prior to December, 1885 ? A. I have never made any calculation of the value of that portion of the farm south of Moyamensing avenue, for the reason that I gave a moment ago. I did not consider, looking at it, that that piece of ground was affected materially one way or the other by the presence of the road. I took the ground that I supposed to be affected, which, according to the plan submitted to me, contained about thirty-two acres, thirty-one and eight tenths acres. Q. What are these thirty-one acres worth? A. I supposed they were worth $5,000 an acre. Q. Down to the line of Pennsylvania railroad or beyond it ? A. To Moyamensing avenue is my line. Q. No; I mean the property to the south. A. As I say, I made no estimate of value upon it at all. Looking over it, I considered that the only parts of the estate that were affected by that, either injuriously or beneficially, were the pieces running from the northern limit to Moyamensing avenue. The other I made no estimate of. Q. Can you not give me the value of the Stocker farm below Moyamensing avenue in 1885 ? A. No, sir; I am not prepared at once to give you any figure upon that. Q. Have you never looked at it ? A. Oh, yes; I have seen it frequently. Q. There is part of it where the Pennsylvania Railroad runs through for four or five squares ? A. Yes, sir. Q. That part of it that lies along Broad street? A. Yes, sir. Q. What is your valuation for that? A. I have never fixed any valuation on that at all. Q. You have never valued the entire property of the Stocker estate before this Schuylkill River East Side Railroad was located over it? A. No, sir; not the entire tract, for the reason that I gave.” He further said that he valued the two pieces on Oregon avenue in December, 1885, at $5,000 an acre, and after the road was built at $4,000 an acre, and that he did not take into account in any way the piece south of Moyamensing avenue, except that he satisfied himself the railroad did not affect it one way or the other.

It will be seen that this witness, having testified that he did not visit the farm for the purpose of judging its value until in the spring of 1887, and had only seen, in passing, the part of it south of Moyamensing avenue, was permitted to, and did testify, that he had valued a part of the farm only, containing about thirty-two acres; that he had not valued the remainder of it which contained about fifty-two acres; had taken no account of it, and had determined in his own mind that the part he did value was worth $5,000 an acre in December, 1885, though he had not visited it nor investigated its value at that time at all, and that this part of the entire property, less than half of the whole, was depreciated in consequence of the railroad to the extent of 20 per cent of its value, which would leave a resulting value of $4,000 an acre in 1887. The value in 1885 was reached by an inference that there was no material difference in the value of the land between 1885 and 1887; and then, being of opinion that the other part of the farm, fifty-two acres, was not affected by the railroad, he values the depreciation of the thirty-two acres at $31,800, and the ground taken at $8,470. He does not give the depreciation of the whole, or even a view of the whole property, as affected by the road, but considers that one part has been depreciated by itself, and the other part has not been affected; and therefore his testimony might be used with the jury to show that the depreciation of the part is the representation of the effect of the building of the road upon the market value of the whole. This is certainly not in accord with the letter or spirit of the rule which has so long been the law in this state, that the difference between the market value of the whole property, before and after the building of the railroad, is the measure of the damage to the owner. In the case of Pittsburgh etc. Ry. Co. v. Vance, 115 Pa. 325, we held a witness to be incompetent to testify to the damages occasioned by the location and building of a railroad, in circumstances somewhat similar to those developed in this case. He was only acquainted with a part of the farm; he knew nothing of the other part, and his estimate was made only as to the part he did know.

In view of all the testimony of Mr. Janney, we cannot say he was entirely incompetent as a witness, because he had seen the lower part of the farm in passing along the road, and he had visited the remaining part and had estimated its value. But, in point of fact, he made no valuation of the larger part of the property, with which he was comparatively unacquainted, and he gave no estimate of its value as it was, either before or after the building of the road. It was never taken into his calculation; on the contrary, he excluded it from his consideration. It is true, he said he thought it would not be affected by the railroad, but that consideration does not relieve either the witness or the jury from the necessity of complying with the rule of law which requires that the whole, not a part, of the property shall be valued as it was before the road was built, and again as it was after it was built. It is the difference between these two valuations which constitutes the measure of damages. But if a witness may select a portion of the whole property affected by the building of a railroad, and determine the extent to which that alone is damaged, without valuing or even examining the remainder of the property, it is evident that both the letter and the spirit of the rule will be violated. We are, therefore, of opinion that when the witness was allowed to testify to the value of a part only of the property in question, and the consequent damage sustained by that part alone, without having valued or examined the remaining part, error was committed which requires us to sustain the first three assignments. Without a careful examination of the remaining part, and having in mind the whole scope of the inquiry, the witness could not tell with any certainty whether his own views might not change as to it, after a thorough inspection of the land, and a consideration of the effect of opening the railroad in such close proximity. It is not enough that he should say, in a general way, that he thought the railroad would not affect it one way or the other, when he at the same time says he did not visit it, never had been over it, and had only seen it in passing along the road. He is testifying as an expert, and should qualify himself as such by at least investigating the subject-matter of his testimony.

We think, also, the fourth assignment must be sustained. The evidence admitted under this exception took entirely too wide a range, insomuch that the learned court below felt obliged to interfere, and say that it exceeded the limits of the admission. The witness had bought a square of ground between Tasker and Morris streets and Sixteenth and Seventeenth, at a considerable distance from the Stocker farm, and much nearer to the built-up portion of the city; Under objection and exception he testified that he opened and built on the west side of Chadwick street twenty-eight houses; on Seventeenth street, twenty-five; on Sixteenth street, twenty-five ; and Bancroft, fifty-six, and that these building operations were conducted up to the time of the trial of this case. The effect of such testimony might easily be to give the jury an exaggerated idea of the value of the ground as the scene of future building operations. While expectations in this regard might be realized in the future, a speculative element is thus introduced into the inquiry which is not legitimate. No one could possibly know whether similar results would follow upon a property so much greater in extent and so much farther removed from the closely built-up portions of the city. Sanguine anticipations might just as easily be disappointed as fulfilled by the actual course of events upon this property, and then the whole basis of the computation would disappear. The proper and legitimate inquiry in all these cases is, What was the actual market or selling value of the property, just as it was, immediately before the land was taken for the railroad, and what was its same value after the completion of the road ?

Of course, the possible uses of the ground may be considered and estimated by the witness in forming his opinion, but it would be highly dangerous to permit verdicts to be founded upon a consideration of future speculative operations which may never transpire, and whose results whether profitable or otherwise cannot possibly be known in advance. We passed upon this subject in the case of Pennsylvania Schuylkill Valley R. Co. v. Cleary, 125 Pa. 442. We there held that “the jury are to value the tract of land and that only. They are not to determine how it could best be divided into building lots, nor conjecture how fast they could be sold, nor at what price per lot.....They are not to inquire what a speculator might be able to realize out of a re-sale in the future, but what a present purchaser would be willing to pay for it in the condition it is now in.” If all this is true of the very land over which the railroad is laid, how much more true must it be when the evidence relates to another and different tract, differently situated, and at a considerable distance from tbe tract under consideration? We think this testimony was inadmissible, and therefore sustain the fourth assignment.

We do not sustain the eighth assignment as we do not think the witness, Robert E. Peterson, was sufficiently qualified to testify.

We think the remark of the learned judge complained of in the ninth assignment, cannot be regarded as either a direction, or even the expression of an opinion that the value of the Freeman estate, as testified to by Sylvester, should affect the estimate by the jury of the value of the Stocker farm. It was a mere passing observation as to what the jury might think, not a suggestion that they should think in any particular way on the subject referred to. This assignment is dismissed.

We do not think there was error in the answer to the defendant’s fifth point. While it is true the jury should not consider the streets as opened streets, they might with propriety consider the value of the land as affected by the consideration that city streets were plotted upon it and might some day be opened, and this was all the court said in replying to the point. The eleventh assignment is not sustained.

We think the fifth, sixth, seventh, tenth, twelfth, thirteenth, and fourteenth assignments are not sustained. The assessed valuations were in reality admitted in evidence and might be considered by the jury for what they were worth. This the charge allowed. What the court said about the value of an assessor’s opinion as expressed in the assessment, we do not regard as error. These assignments are dismissed.

Judgment reversed, and new venire awarded.