Lehigh Coal Co. v. Wilkes-Barre & Eastern Railroad , 187 Pa. 145 ( 1898 )

Opinion by

Ms. Justice Mitchell,

The only substantia] controversy is upon the manner in which the damages to plaintiff by the occupation of its culm bank shall be measured. The culm was personal property. It had been mined from its original place and, though it rested upon the land, it was as completely severed as a kiln of bricks in a brick yard, or a pile of pig iron in a foundry. The plaintiff was entitled to compensation for its value, and the open question is how that value shall be ascertained.

The learned judge below stated the rights of plaintiff very clearly and accurately in the following language: “ This material (the coal) had been mined and placed upon the surface by the plaintiff, and was the personal property of the latter, although mixed with the dirt and slate. The d efendant took it directly and occupied it for a roadbed, and entirely deprived the plaintiff of its property therein. It was as much a taking, for the purposes of a roadbed, of coal actually mined, as if there had been no dirt or slate mixed with it; and as the whole material taken was chiefly valuable for the coal of which it was in part constituted, we can see no reason why the plaintiff should not, under the statute, be compensated for the coal as such, in its then state and condition in place upon the surface, nor why its quantity, quality and value should not be estimated and compensation allowed therefor.” He therefore found as facts the quantity and sizes of the coal, and received evidence of its value by the rule which plaintiff claimed, to wit: the market value at the breaker when the taking occured, less the estimated cost of removing, cleaning, screening and preparing for market. On subsequent consideration however he rejected this method for the measure of value, as being “speculative, contingent and fanciful,” and not in accord with the settled rule laid down in our cases upon taking by eminent domain. In this we think there was error.

The market value of anything is what the owner can get for it, less the cost of marketing it. This is the general rule, applicable as the measure of damages, where the object is to secure compensation only, especially as to personalty. The cases of property which is part of the realty, but the value of which depends on its conversion into personalty, such as coal, iron ore, etc., have a different and exceptional rule of their own, because they involve expense and risk in the conversion of the material, which is realty in place, into personalty in the market, and to measure the value in place by the value in market, less the cost of getting it there, would, as was said by our Brother Green in Fulmer’s Appeal, 128 Pa. 24, be giving “ a share in the profits of carrying on the business without being subject to the risks or possible losses which might ensue.”

There are no such elements in the present case, which is a far clearer ease than Ege v. Kille, 84 Pa. 333, for the application of the same rule. The coal in the culm bank, as already said, was personalty, and could have been marketed by the plaintiff at any time by ordinary business processes, well known and easily and definitely ascertainable as to expense. There was nothing fanciful about the value so ascertained, nor anything speculative or contingent, more than there always is in the estimation of the cost of producing something not yet produced, or of the price to be realized on the sale of something not yet sold, in other words, the inevitable uncertainty of futurity, which attends all matters merely executory. The objections pointed out by the learned judge are not legal difficulties in ascertaining a just rule, but practical difficulties in applying the rule to the facts. These difficulties attend a large proportion of the cases tried in our courts, but they do not prevent the effort to apply the settled rules. Thus, in every case of damages sought for injury by negligence, the length of life of the party injured and the money which he might have earned are matters of considerable uncertainty, but that does not prevent their approximate ascertainment by the evidence at hand. So, in the present case, if the plaintiff had insured the coal in the culm bank, and it had been consumed by one of the fires alleged to have been smouldering there so long, the jury, in an action against the insurance company, would have had to ascertain the quantity and value of the coal from the evidence available, and the difficulty or uncertainty of attaining an exactly accurate result would not have prevented a direction by the court to apply the usual rule. It is admitted that the plaintiff is entitled to compensation according to the just value of its property taken, and the fair measure of such value is what the plaintiff could have realized for the coal in the market, less the cost of getting it there. In estimating these matters the advantage of getting a present lump sum, instead of instalments from time to time by sales of the coal, and also the just allowance to be made for wear and tear of machinery, interest on capital invested, etc., are proper subjects for consideration.

The case of Becker v. R. R. Co., 177 Pa. 252, is not at all analogous to this. There the personal property in question was not taken at all by the railroad, but was claimed by tbe plaintiff to have been reduced in value by the necessity of removal, and tbe value sought to be recovered was not tbe market value of tbe goods as such, but a special value to plaintiff by reason of a trade good will at tbat locality.

The last assignment of error cannot be sustained. The compensation to which plaintiff is entitled is for wbat the property of which he has been deprived would bave produced to him, not what it might be worth to tbe defendant taking it.

Judgment reversed and procedendo awarded.