Buckwalter v. Black Rock Bridge Company , 1861 Pa. LEXIS 109 ( 1861 )

The opinion of the court was delivered, by

Thompson, J.

— It would be a difficult proposition to maintain, that the legislature, on granting corporate franchises to the defendants, could not do so upon the terms that they should pay and satisfy the plaintiff for any injury they might occasion to his ferry, because the damage might be in its nature consequential. That such damages may be claimed from and assessed against a company, if their organic law require it, has often been decided: Monongahela Navigation Co. v. Coons, 6 Barr 379; Mifflin v. Railroad Co., 4 Harris 182; Reitenbach v. Chester Valley Railroad Co., 9 Id. 105; New York and Erie Railroad Co. v. Young, 9 Casey 175. There are many other cases to the same effect. This is not upon the ground that the constitution requires compensation to be made for such injuries; for it does not. It is only for taking property under the right of eminent domain, that compensation is required to be made by the constitution. Here the terms upon which the privilege was granted and accepted, that compensation beyond this should be made, became a contract, and the company ought to be willing to observe it; if not, the law will compel them to do so.

The matter first to be ascertained is, whether the terms of this charter require the payment of such damages as are claimed by the plaintiff. That settled, everything else is of easy solution.

The 6th section of the act authorizes the company to take property necessary in the erection of their bridge, and provides a mode for assessing damages consequent upon such taking. These provisions do not extend to the allowance of consequential damages; they provide only for the taking and making compensation for property within the meaning of the constitution, and for this they are ample.

In section 13, there is a special provision for the contingency of damage occurring to the plaintiff. In order that this section shall have any effect, it is to be presumed that these damages were not such as might arise from the taking of property, for that was provided for already.

What damage was in the contemplation of the legislature? They chose to take notice of the fact, and declared that David R. Buckwalter “now owns and maintains a ferry” across the Schuylkill, and prohibited the location of the bridge within a half a mile of it, unless upon his consent first had for that purpose. But if this could not be had, still the company might, if they deemed it expedient, first having the damages ascertained as provided for, locate within the interdicted distance their bridge. It is hardly to be doubted that all this was to protect or compensate any injury to the ferry. It is impossible to discover any other object in these provisions.

The damages to be assessed seem to be pretty well defined in the section. After providing that they were to be ascertained by referees mutually to be chosen by the company and the plaintiff, and who were to be sworn, were to “ go upon the premises and view and receive such other testimony as they may desire, and assess the damages, if any, which the said David R. Buckwalter may and shall sustain by reason of the erection of the bridge.”

The -requirement to pay any damages which may or shall have been sustained, has been holden to cover a claim for consequential damages: Monongahela Navigation Co. v. Coons, 6 Barr 379. So has the expression all damages: Mifflin v. Railroad Co., 4 Harris 182.

The words here require the payment of damages, “if any,” by reason of the erection of the bridge. This last expression, in the connection in which it stands, is the same thing as “ on account of,” or “because of,” the erection of the bridge. In this sense, the paragraph means any damage on account of its erection. The subjunctive or contingent form if does not lessen the import of the word “any,” which means indefinite results or amounts, and consequently means all damages.

In this aspect, all injurious consequences or consequential damages would be included.

I cannot for a moment doubt that the legislature had this in view, in introducing this special provision. Why should they have recognised the existence of the ferry, attempted its protection, and, in the same section in which the company are authorized to locate their bridge within a half a mile of it, require them to obtain the owner’s consent; or if not, to pay such damages as he might sustain, unless injury to the ferry was to be the basis of the assessment, present and prospective ? This was what they meant or nothing; and it is our duty so to interpret the language used, so as to give effect to every provision of the act. It was the duty, therefore, of the referees to assess all damages, direct or consequential, which had been or should be sustained by the plaintiff on account of injury to his ferry, and it is apparent they did so. It does not appear from anything before us, that merely speculative damages were at all allowed. Consequential damages are always in appearance somewhat so. But there was no more necessity that they should be so here, than in case of injury by flooding or overflowing land, or for backing water on a mill-wheel so as to interrupt its workings occasionally. These have often been compensated as between individuals, and sometimes in cases of companies and individuals.

When the law allows such damages, it of course authorizes their assessment upon facts, opinions, and approximate estimates. Because these are not demonstrably certain tests, it is no reason for disallowing them altogether, when otherwise, there is a duty to compensate those who have or shall suffer them.

The corporators here accepted the terms upon which the legislature were willing they should build a bridge. There was nothing unlawful in them, and they were not obliged to accept them; but having done so, they ought to be willing to live up to them, and we do not see that more has been required of them here.

It has been suggested that a ferry is not property within the constitutional meaning of the term. Grant that this is so, both the legislature and corporators here, however, have treated it as property, and the latter have agreed to pay any damage which they may do to it. It was certainly for the legislature to grant the privilege to the company upon these terms, without regard to the precise nature of the property. They were supreme in this respect, and the company, in accepting their charter, engaged to observe all the conditions contained in it, and they cannot now escape from any of them by questioning their propriety or expediency, there being nothing unlawful contained in them.

The agreement for the reference, and the provision that a majority of the referees should make an award, it now appearing that all viewed the premises, dispenses with any necessity of inquiring as to their power to do so under the Act of Assembly. The parties could regulate that if the act did not. Eor these reasons we think the court erred in setting aside thefi.fa. and striking off the award, and their action therein must be reversed.

The order of the court is reversed, and the award directed to be reinstated; and the order setting aside the fi. fa. is also reversed.