Reading & Pottsville R. v. Balthaser , 119 Pa. 472 ( 1888 )

Opinion,

Mr. Justice Green:

We think the first assignment of error is sustained. The witness having stated that he made the difference in the value of the land before and after the building of the road to be $12,000, and being asked how he made up the items said: “They are made up by the stone which they take.” Being further asked what he meant by the stone which they take, he said: “ The land which it occupies has stone underneath, and it is occupied by the railroad, taken by this railroad.” A motion was then made to strike out this testimony which was denied by the court, and exception was taken by the defendant. On cross-examination the witness explained that he had calculated how many tons of stone there were under the road, and he had put a value of so much per ton on it, and the result formed one of the elements of damage as he had calculated it. The meaning of this is that the witness’s estimate of $12,000 damage was in part made up of a specific allowance for an estimated number of tons of limestone lying under the railroad, at a fixed price per ton. After the motion to strike out was refused, other witnesses were examined who testified that they had allowed the sum of $5,000 in their estimates as the value of the stone under the railroad. In this way the plaintiffs’ testimony upon this subject was permitted to get into the case, and naturally may have affected the estimate of the jury in determining the damages.

It is almost unnecessary to argue the incompetency of that kind of testimony. Its character and effect were fully pointed out in the opinion of this court in the case of Searle v. The Lackawanna & Bloomsburg R. Co., 33 Pa. 64. We there held that the value of the land as coal land could be allowed, but not the value of the coal itself underneath the road. We said: “We do not ..measure the value of land by such facts. Land may have $4,000 worth of coal per acre in it and yet sell at $40 per acre. When a man has to sell his property, of course he must take the market value for it.” And so in this case the value of the plaintiffs’ land as limestone land was a proper subject of consideration, both by the witnesses and the jury, in estimating the damages, but not the value of the stone under the road. Practically this distinction was disregarded when the objectionable testimony was retained and more of it given, and herein there was error. The doctrine of Searle v. The Railroad has never been departed from, nor is it likely to be. It is founded upon sound principles and practical common sense.

We think the defendant’s first point should have been affirmed as it stood. The last sentence of the answer is somewhat misleading, because it does seem to sanction the idea that the-value of the stone lying under the road might be considered in determining the market value of the whole tract. If that is so, it would be not only proper but necessary to admit that kind of testimony in every case in which mineral land is taken for a railroad. But the difficulty, indeed the impossibility, of proving the specific value of the mineral underneath the surface is just the same whether the object be to recover the value of the mineral itself, or to determine by means of that kind of proof, the value of the land. Hence it is that it should not be permitted for the one purpose or the other. The second assignment of error is sustained.

We think the offer of testimony covered by the third assignment was properly rejected. While it approximates very closely the rejected offers of testimony which we held ought to have been admitted in the case of Pittsburgh and Lake Erie Railroad Co. v. Robinson, 95 Pa. 426, and apparently does come within the general language of the opinion in that ease, yet there is a difference which we think is material between the offers of testimony in that case and in this. The offer in this case was to show that rates of freight had been lowered between the points named since the opening of the road. If this were a continuing and permanent change not subject to alteration back to the rates which formerly prevailed, it would certainly be a specific advantage to the plaintiffs’ property. But rates of transportation on railroads are fluctuating, and subject to constant changes, and hence there can be no certainty that they will continue at any fixed figures. There was no offer to prove that the rates named in the offer we are considering would remain permanently, and we cannot assume it. We, therefore, think that specific rates prevalent at a particular time are not competent proof, while the fact that additional facilities for transportation are afforded, may be proved as an element of advantage. We think there is no merit in the fourth and fifth assignments and they are not sustained.

Judgment reversed, and new venire awarded.