Chambers v. South Chester Bor. , 140 Pa. 510 ( 1891 )

Opinion,

Mr. Justice Green:

The learned judge of the court below so carefully, and with so much correctness and emphasis, laid down the rule by which the damages were to be assessed, that the jury could not possibly be mistaken as to their duty in disposing of the subject. Experience has constantly demonstrated the correctness of the old rule established in the ease of Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411, to wit: “The jury are to consider the matter just as if they were called on to value the injury at the moment when compensation could first be demanded: they are to value the injury to the property, without reference to the person of the owner, or the actual state of his business; and in doing that, the only safe rule is to inquire: What would the property, unaffected by the obstruction, have sold for at the time the injury was committed? What would it have sold for as affected by the injury ? The difference is the true measure of compensation.” Attempts have often been made to introduce particular items of damage into the case, such as the cost of fencing, loss of business, expense of altering buildings, the value of minerals under the surface, the danger of fire, the price of particular pieces of land in the neighborhood, and many other distinct and independent matters, in order that the damages to be recovered might be swelled unreasonably ; but we have repudiated them all. More and more closely, in recent years, we have held parties to the rule that, after all things are considered which may affect the mind of the witness, he must give his estimate of the money value of the injury, by contrasting the market value of the property as it was before the injury was inflicted, with its value immediately after the injury; and the jury is instructed that the difference of these values is the measure of damage. Instances of specific rulings on this subject are East Penna. Railroad v. Hiester, 40 Pa. 53; Pittsburgh etc. R. Co. v. Patterson, 107 Pa. 461; Baltimore etc. R. Co. v. Springer, 21 W. N. 143, and Pittsburgh etc. Ry. Co. v. McCloskey, 110 Pa. 436.

It is not necessary to review these or any other of the decisions in detail. In the last of the cases above referred to, our Brother Clabk, in delivering the opinion, presented the doctrine in comprehensive, and at the same time precise terms, which are quite sufficient to dispose of this case. He said:

“ Merely speculative damages cannot be allowed. The inconvenience arising from a division of the property, or from increased difficulty of access, the burden of increased fencing, the ordinary danger from accidental fires to the fences, fields, or farm buildings, not resulting from negligence, and generally all such matters as, owing to the particular location of the road, may affect the convenient use and future enjoyment of the property, are'proper matters for consideration; but they are to be considered in comparison with the advantages, only as they affect the market value of the land. The jury cannot include in the verdict a fund to cover the costs of fencing, or to provide an indemnity against losses by fire, or casualties to the cattle and stock upon the farm. Such assessments must necessarily be purely speculative, as the matters thus sought to be provided against are in their nature altogether ideal and fanciful.”

And so, here, the plaintiff sought to prove how much it would cost to fill up his lot to the level of the changed grade of the street, and asked that the cost of such filling, as well as the cost of raising the building and erecting retaining walls to hold the earth filling, should be allowed as part of the damages to be recovered. The learned court below very properly rejected the offers of testimony on this subject, and refused the instruction asked for by the plaintiff’s second point, saying that the law did not permit a recovery for any such matters. In the third point, the court was asked to instruct the jury that the plaintiff might recover damages for any loss or inconvenience in the prosecution of his business, caused by increased difficulty of access to his building, and for the consequences of increased water in his cellar and on his lot, occasioned by difficulties with the drainage resulting from the change of grade: all of which was refused.

To the second point the court answered: “ You may consider these several matters as elements in the cause, but you are not to award damages for the building of walls or the filling up of lots as special damages, or for the likelihood of injuring the building, etc. You are not to take up these separate items, and award separate damages for them, and add them together, and say that is the damage suffered. The law has given another rule for the measuring of damages, and that rule is as before stated, and which I will now repeat. The law is this: You are to consider the market value of the property before the change, and unaffected by it, and its market value with the grade, and as affected by it. If the establishment of the new grade has added more value to the property than it has depreciated from it, the verdict should be for the defendant. If it has depreciated from the property more than it has added to it, the verdict should be for the plaintiffs, and the measure of damages should be the difference between its value before and its value after.”

To the third point the court answered: “ Loss of his business has nothing to do with the case, unless it effects an injury to his land.....If water is thrown upon his premises and lies upon his property, it is his duty to conduct the water away from his cellar if he can, and whatever that would cost would be his damage, if that was his only claim. But you will allow full and ample damage for all these elements when you take the value before and after, and allow the difference. In doing that, you get rid of all these claims: and that is the way the law lays down the rule.”

All of this is so entirely correct, and so perfectly in accord with the decisions, that it needs no vindication at our hands. The widest latitude was allowed in permitting the witnesses to describe all the methods in which the change of grade would or might affect the value of the property, and they were all at liberty to give full effect to their views as to how and to what extent the value of the property was affected by the change of grade; and they were allowed freely to say how much, in dollars and cents, the damage of the plaintiff was, but it was required to be expressed in the change of the market value of the property as it was before and after the change of grade was made. This is undoubtedly the correct rule, and it was properly administered'by the court below.

The first five assignments of error are in violation of our rules of court. The rejected offers of testimony are not printed in any one of them, and we must search the appendix to discover what they are. It is much to be regretted that we are obliged so frequently to call attention to the careless practice which prevails so extensively in this respect. We hold ourselves at liberty at all times to reject such assignments, and we frequently do so. We should have done so in this case had it been of kny consequence, but the answers to points raise the same questions, and it was therefore unnecessary.

Judgment affirmed.