Penn. Schuyl. V. R. v. Cleary ( 1889 )

Opinion,

Mr. Justice Williams :

The court below was right in the admission of the evidence which is the subject of the first assignment of error. The lot of land over which the line of the road belonging to the plaintiff in error had been laid, belonged prior to 1882 to James Cleary. He died in that year, and his title descended to his heirs-at-law of whom M. J. Cleary is one, and letters of administration upon his estate were regularly issued to M. J. Cleary. A judgment had been recovered against James Cleary in his lifetime by A. E. Beck in the Common Pleas of Schuylkill county. After the death of James Cleary it was regularly revived against the administrator, and on the 11th of July, 1885, the lot in controversy was brought to sale by the sheriff, and sold to M. J. Cleary. On the 81st of July, 1885, the railroad company entered and located their line of railroad. This proceeding for the assessment of damages was begun by M. J. Cleary in May, 1887. The acknowledgment and delivery of the sheriff’s deed did not take place until April, 1888. It is well settled however that a purchaser at sheriff’s sale acquires an inchoate title in the land purchased by virtue of his bid, and its acceptance by the sheriff. The subsequent acknowledgment and delivery of the deed provides the purchaser with the evidence of his title which relates to, and takes effect as of the date of the sale recited in it. The title of M. J. Cleary to this land vested at the time of his purchase from the sheriff on the lltli of July, 1885, notwithstanding the fact that he was not provided with the legal evidence of his title until 1888. As his purchase was prior to the entry by the railroad company, this proceeding to assess damages against the company was properly begun in his name. After the damages have been fixed, and the money paid into court, it may be the question of the character of the plaintiff’s holding will be raised, and the court called upon to decide whether he holds the title as owner, or as trustee for the heirs-at-law of James Cleary, but that question is unimportant now. The title being in him, the damages are properly assessed at his instance. The first, second and third assignments of error are therefore dismissed.

The fourth and fifth assignments raise a more serious question. The true measure of the damages sustained by any given lot of land is found in the difference between its selling value before and after the entry complained of: Read. etc. R. Co. v. Balthasar, 119 Pa. 483. It is proper to consider for what purpose it may be used to advantage, in order to determine for what price it will sell. It may be salable as a site for the erection of a hotel, a factory, a dwelling, or a wharf, but it is not proper to lay before the jury proof of what the hotel or other structure would cost, together with proof of the value of the lot with such structure upon it, and treat the difference between these sums as the value of the lot. Such a method would be speculative and fanciful. Equally improper is evidence showing how many building lots the tract under consideration could.be divided into, and what such lots would be worth separately. It is proper to inquire what the tract is worth, having in view the purposes for which it is best adapted, but it is the tract, and not the lots into which it might be divided, that is to be valued. The learned judge intended to guard this point in his charge to the jury, yet he seems to have left a question to the jury with which they had nothing to do. He said: “It would scarcely be a fair estimate of the value of the property to take this property and divide it all up into town lots and say that each town lot is worth so much money and that therefore the whole property is worth that amount of money; because that presupposes that the moment that property is cut into town lots it could all be sold off at that figure. That is a question for you whether that would be the case, particularly with a piece of ground on the outskirts of a town where perhaps the evidence would not show that the tide of improvement was going. It is a question of fact for the jury.”

We do not agree with the learned judge that there was any such question for the jury in tliis case. 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. A speculator or investor in deciding what price he could afford to pay, would consider the chances and probabilities of the situation as then actually existing. A jury should do the same thing. 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. This is a rule that is well settled and the court should have drawn the attention of the jury to it so as to have left no room for uncertainty on their part. They should have been told that they had nothing to do with the subdivision of this tract, the price of the lots or the probability of their sale; but that they were to ascertain the fair selling value of the land before and after the entry by the railroad company, in order to determine the actual damage done to its owner.

The court was also in error in admitting the evidence offered to show why James Cleary had declined to sell or lease the land or the fact that he had done so. James Cleary might have had a reluctance to part with it for many reasons; he might have had a wise, or an unwise, confidence in its value as an investment, or a desire to see it occupied for some particular purpose, but his views upon this subject were not relevant to the inquiry before the jury. The questions before them were first, what was this land worth before it was touched by the railroad? Next, what was it worth as affected by the location of the road? When these questions were settled the damages were ascertained.

Judgment reversed, and venire facias de novo awarded.