Eckington & Soldiers' Home Railway Co. v. McDevitt , 18 App. D.C. 497 ( 1901 )

Mr. Justice Morris

delivered the opinion of the Court:

The appellant has here assigned the somewhat unusual number of thirty-nine assignments' of error, of which only one has been seriously insisted on before us; and that one we regard as well settled by the authorities. It concerns the question of the measure of damages in a case like the present.

That the appellee was entitled to recover damages in this case, is too plain for argument. We do not understand it to be controverted. The execution of the contract, its performance by the plaintiff, and the breach of it by the defendant, were conclusively proved; and that something more than merely nominal damages should be awarded, we must regard as beyond reasonable question. What should be the measure of the damages to be recovered? In the light of reason and of the numerous authorities upon the subject, we cannot regard this as 'a question of very great difficulty.

The contract is one concerning land, and the use and occupation of it. The owner of the land, the plaintiff in the cause, in consideration of the benefit which she presumed her concession would bring to her in the use and disposition of the remainder of it, granted to the railroad company, the other party to the contract, and the defendant in the cause, a right of way over and through the land sixty feet wide and three feet deep, thereby cutting the land into two parts; and at the same time she executed and delivered to the railroad company her promissory note for $500. That she expected the land of which she retained the use to be enhanced in value by this concession, must, of course, be assumed; for such contracts are not entered into in the ordinary course of things for mere benevolence. For the same consideration of prospective benefit to itself, the railroad company assumed to construct and operate a railroad over the right of way so given, and to run its cars thereon at certain specific hours of the day and night. The plaintiff fully performed the contract on her part, and as to her it is wholly executed and nothing remains to be done. The defendant’s side of the contract is in part executory. It constructed the road and for a time operated it in accordance with the agreement; and then it wholly abandoned it and refused further to operate the road or to run its cars thereon. And then it attempted to escape liability on the ground that the plaintiff had suffered no actual loss, since her land had been restored toiler and she now has it, notwithstanding that a trench sixty feet wide and three feet deep has been dug through it, which, according to the defendant’s solemn averment under oath, has rendered it less valuable for the only purpose for which enhancement in value was sought by both parties to the contract — -its subdivision into city lots. Such is the case which we have before us.

The damages for which the plaintiff is entitled to recover is the actual loss which she has suffered by reason of the abandonment of tbe railroad and the cessation of its operation by the defendant. That actual loss is only to be determined by the ascertainment of the value of the land to its owner with the railroad upon it and in operation, and the value of the same land with the railroad abandoned and ceased to be operated. This is what the trial court told the jury in the instruction which it gave on behalf of the plaintiff ; and the instruction was undoubtedly correct. Dawson v. Pittsburg, 159 Pa. St. 317; Mewes v. crescent Pipe Line, 170 Pa. St. 364; Railroad Co. v. Knapp, 51 Tex. 592; Ferguson v. Stafford, 33 Ind. 162; Topeka v. Martineau, 42 Kans. 387; Dwight v. Commissioners, 11 Cush. 201; Pike v. Chicago, 155 Ill. 656; Railroad Co. v. Kerth, 130 Ind. 314; Railroad Co. v. De Lissa, 103 Mo. 125; Baltimore v. Brick Co., 80 Md. 458; Benjamin v. Hillard, 23 How. 149 ; Shepherd v. B. & O. RR. Co., 130 U. S. 426.

In the absence of [evidence of] actual sales of the property, which would not always be practicable or possible, and which, therefore, it would be absurd to require as a criterion of value, it is right and proper to ascertain such value by the opinions and estimates of persons conversant therewith, notwithstanding that such opinions and estimates are in their nature to a certain extent speculative. "Were the rule otherwise, no values could be established at all in the absence of actual sales. This is the well-established doctrine of the law conclusively settled for us by the Supreme Court of the Hnited States in the case of Montana Rwy. Co. v. Warren, 137 U. S. 348, where it is said by Mr. Justice Brewer, speaking for the court, that, in respect to the value of real estate, “the opinions of witnesses familiar with the territory and its surroundings are competent; ” and also, that “ at best, evidence of value is largely a matter of opinion, especially as to real estate.” See also Blair v. Charleston, 43 W. Va. 62; Diedrich v. Railroad Co., 47 Wis. 662; Curtin v. Railroad Co., 155 Pa. St. 20; Tucker v. Railroad Co., 118 Mass. 546; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544; Hunter x. Railroad Co., 84 Iowa, 605; Railroad Co. v. Union Stock Yards, 120 Mo. 541; Lee v. Springfield Water Co., 176 Pa. St. 223, and the cases hereinbefore cited.

As stated in the case of Dedrich v. Northwestern RR. Co., 47 Wis. 662, "evidence of this kind is admitted from necessity.” It is the fault of the defendant, trespasser or wrongdoer that the necessity has supervened.

The principal part of the argument on behalf of the appellant is devoted to the elucidation and supposed application to this case of the rule- laid down by the. English Court of Exchequer in the case of Hadley v. Baxendale, 9 Exch. 341, as qualified by the subsequent decision of the Court of Common Pleas in the case of Horne v. Midland Railway Co., L. R. 8 C. P. 131, which rule is thus stated:

“ Damages recoverable on a breach of contract are measured by the actual loss sustained, provided such loss is what would naturally result as the ordinary consequence of the breach, or as a consequence which may under the circumstances be presumed to have been in the contemplation of both parties as the probable result of such a breach.”

This rule was approved by the Supreme Court of the United States in the case of Benjamin v. Hillard, 23 How. 149, 167, and again in the case of Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 206; and the principle of it was applied in several intervening cases. We had occasion to apply the same rule in this court in the case of Gurley v. MacLennan, 17 App. D. C. 170.

But there is no antagonism between this rule and that' applied by the court below in the present case. The purpose of the rule in the case of Hadley v. Baxendale was to exclude consideration of remote, uncertain, and speculative profits as elements in the estimate of damages; and it is believed that in our country the courts are unanimous, or almost so, in the exclusion of such elements of damages from the consideration of the jury. But that rule ends where the rule in the present case begins. That rule requires that only actual loss sustained, which is the natural result as the ordinary consequence of the breach, should be recovered in a suit for breach of contract. The rule laid down, in the present case assumes that, when an improvement exists on land by the convention of parties, such as the railroad in the case and its operation were undoubtedly presumed to be, and that improvement is removed in violation of the convention, the consequent depreciation in the value of the land, if such depreciation is shown, is the natural result and the ordinary consequence of the wrongful removal of the improvement; and the amount of such depreciation is the measure of damage. Plainly there is no antagonism between these two rules. Nor does there any antagonism arise on the ground stated in the second branch of the rule in the case of Hadley v. Baxendale, that the damage for which recovery is to be had must be such as under the circumstances may be presumed to have been in the contemplation of both parties as the probable result of such breach. It is not often that parties stipulate expressly with reference to the damages that might result from their violation of their own contracts, and they did not so stipulate in the case before us. But when they contemplate advantages, as here they undoubtedly did, as the result of the performance of their contract, they must in reason be held to have contemplated the corresponding disadvantages as the result of the violation of such contract, whether the question of such possible violation actually entered into their thoughts or not. Every man must be presumed to have contemplated and intended the natural and ordinary consequence of his own wrongful act; and there is no more natural result of the wrongful removal of an improvement from land than depreciation in the value of such land.

The New York Elevated Railroad Cases — Roberts v. Railroad Co., 128 N. Y. 455; Doyle v. Railway Co., 128 N. Y. 488, and Gray v. Railway Co., 128 N. Y. 499— are also cited as establishing a different doctrine from that held by the trial court in the instructions granted to the jury in the present case. But a careful reading of those cases will show that they axe not subject to any such construction. The contention there was to show by expert witnesses what the value of abutting real estate, assumed to have been injured by tbe construction of the elevated railways, would be if the nuisance of such construction were removed. This the Court of Appeals of the State of New York held could not be allowed, inasmuch as it contemplated a condition of things which might never exist and which, therefore, was wholly speculative. Had the contention been as to the present value of the property with the alleged nuisance existing and the past value of it before the nuisance was placed there, a very different question would have been 'presented. And Mr. Justice Peckham, now of the Supreme Court of the United States, and who was then a member of the Court of Appeals of New York, and wrote the opinion in the Roberts Case, is careful to make the distinction. For he says: “ I refer to this not for the purpose of throwing any doubt upon the admissibility of expert evidence upon the question of the past or present value of real estate, where the witness is shown to be competent to give an opinion thereon. This was decided years ago by this court, and has been continuously approved since that time. See Chark v. Baird, 9 N. Y. 183.”

This, we think, disposes of the principal contention in the present case; and the other questions' sought to be raised by the numerous assignments of error do not seem to us to require serious consideration. They are elementary questions which must be regarded as having been settled long ago. Among them is the question presented by the appellant’s motion in arrest of judgment in the court below, to the effect that the declaration contained two counts stating different causes of action, and the verdict being general did not indicate upon which count it was based, and, therefore, could not stand. Notwithstanding that the plaintiff in the court below sought to obviate this question by withdrawing the second count of the declaration or suffering a nonsuit upon it, the question is again raised in this court by the last of the appellant’s thirty-nine assignments of error. But its consideration by us is unnecessary, since upon the argument' before us it was expressly abandoned by the appellant.

We are of opinion that there was no error in the rulings of the trial court in the premises, aud that the judgment of that court should he affirmed, with costs. And it is so ordered.

A writ of error to the Supreme Court of the United States was prayed by the appellant and allowed June 25, 1901.