Cox v. Philadelphia, Harrisburg & Pittsburg Railroad , 215 Pa. 506 ( 1906 )

Opinion by

Mr. Justice Mestbezat,

This was a proceeding in the court below to assess the dam-,ages sustained by the plaintiff by reason of the defendant company’s appropriation of á strip of his land for widening its right of way. The viewers having reported in favor of the plaintiff, the defendant appealed to the common pleas, in which an issue was framed and the case was tried before a jury, resulting in a verdict and judgment for the plaintiff. The defendant has appealed to this court.

It is well settled that the measure of damages for land taken or injured by a railroad company under the right of eminent domain is the difference in the market value of the tract as a, whole before the taking and afterwards, as affected by it. In adjusting this difference, the landowner is entitled to have the jury take into consideration the value of his property for any and every purpose or use to which it may be adapted, and to have the damages assessed upon a basis of the most valuable use to which the property may be adapted. As said by the present Chief Justice in Harris v. Railroad Company, 141 Pa. 242: “ In estimating the value of the lot before the taking, its possible and probable uses are important elements, and may be shown by the opinion of experts.” On the other hand, the defendant company is entitled to any benefits or advantages which may accrue to the part of the tract of land, not taken or injured, by reason of the construction of the improvement. In ascertaining the damages, therefore, the jury must take into consideration the value of the land for the uses to which it has been or may be applied, and the special advantage the construction of the road may be to the residue of the tract through which it is constructed.

While these general principles, applicable to the assessment of damages in condemnation proceedings, are well settled, there is another rule which has been recognized and enforced .for more than three-quarters of a century in this state, which prohibits the landowner from having the profits of his business ' considered by the jury in determining the value of the property 'which is affected or injured by the improvement. “ We have so often said,” says Mr. Justice Green in Becker v. Philadelphia & Reading R. R. Co., 177 Pa. 252, “that the profits of business could not be recovered in condemnation proceedings that it seems like a waste of time to cite the decisions. As far back as Thoburn’s Case, 7 S. & R. 411, it was held that, in estimating the damages done to the landowner, the jury are to value the injury to the property at the time the injury was suffered, without reference to the person of the owner or the state of his business. The allowance of damages for an actual or supposed loss of profits in a business carried on upon the premises by reason of the taking, was most emphatically condemned in the opinion, and that decision has been followed by 'this court from that day to this. . . . After stating the injustice of allowing for the profits of business to be carried on, the Chief Justice added (in Thoburn’s Case), ‘That would make the defendant an insurer of ordinary profits in a new state of the business, pushed to a morbid extent, and would put it •in the power of the plaintiff to increase the damages to any extent be might think proper. I mention this to show the danger of taking into consideration circumstances posterior to the time when the privilege is fully entered on, and its consequences to the individual to be compensated are ascertained.’ ” Pittsburg & Western Railroad Co. v. Patterson, 107 Pa. 461, originated in a proceeding for the assessment of damages occasioned by reason of the location of the defendant’s road through the plaintiff’s land. In delivering the opinion in that case, Mr. Justice Clark said (p. 464) : “ The use to which the property has been or may be applied is proper for the consideration of the jury, in the estimate of its value, its adaptation for any particular purpose may enchance its market value, but the court was certainly correct in saying that the jury could not take into consideration any supposed loss to the plaintiff, of profits in his business. Such an assessment would be purely speculative, and the rule which justified it would lead to most ruinous results. If the property, by reason of its location or otherwise is especially adapted to any particular use to which it is applied, if it is worth more for that particular use than for any other, its market value will be measured accordingly.”

In the case at bar it was proper for the plaintiff to call witnesses to show the uses or purposes for which his land was specially adapted, including that of duck raising. The landowner, in condemnation proceedings, is not limited to any one use for which his property may be available, but he is entitled to have its value considered for any and all purposes for which it can be used. He may, therefore, show by any competent testimony, expert or otherwise, that it is specially valuable for a certain particular purpose and that purpose must enter into its value before the jury. So, here, it was proper for the plaintiff to show by competent expert testimony the value of his property for duck-breeding purposes, and the jury was required, in passing upon the case, to take into consideration its value for that purpose. But in every case of this character the parties to establish their contention are required to produce competent testimony, and the question of competency was one for the court to determine. The plaintiff called at least four witnesses as experts to show the value of his farm for duck-raising purposes. Conceding that they disclosed sufficient knowledge of the business to make them competent to testify as to the adaptability of the property for a duck farm, their testimony clearly showed that their valuation of the property for such purpose rested upon an erroneous basis, the profits which the plaintiff would realize out of the business conducted upon the land. Mr. Stouffer fixed the plaintiff’s damages, by reason of the construction of the road through the premises, at $8,000. Of this sum he allowed $6,000 as the value of a pen on the premises destroyed by the defendant company. In testifying as to this item of depreciation, he said: “ That will depreciate the capacity about 2,000 ducks a year — our books will show twenty per cent apiece profit on a duck; that will be $400 a year. I arrive at that conclusion in this way — that is not taken for one year — it is taken for all time. ... If we were in business for twenty years — and there is no reason why we should not be— that would be $8,000 loss, without any interest.” Mr. Cox, the plaintiff, fixed the damages at about $10,000. He said the land was worth $1,500 as land and that the encroachment of the railroad on the part of the land used as a duck farm had reduced its capacity or output to the extent of a capitalization of $8,000. He testified : “ Q. How much of the $8,000 do you estimate as loss to the farm as a duck farm? A. It reduces their output to that extent. Q. How much ? A. About $500 or $600 a year — It reduced the breeding pens so that the eggs laid and the ducks produced are less by at least 2,000 per year — 2,000 marketable ducks. Q. And you calculate so much profit on each duck? A. Yes. Q. What profit do you count on that? A. The duck people usually get twenty cents per duck. Q. Is that the way you estimate the $8,000 by estimating the profits ? A. Yes.” Mr. Morgan, another witness, estimated the plaintiff’s damages at from $8,000 to $10,000. He thought the space cut off on the water front would be sixty feet, and based his estimate of the damages on that fact. He testified: “ Well that (sixty feet) will accommodate even breeding ducks, which would produce 6,000 ducks; I figure fifteen cents profit — that represents a loss of $900 a year.” George Woods, called by the plaintiff, fixed the damages at $8,000. His manner in arriving at this sum as damages is stated in his testimony as follows: “ You could handle about 200 breeders there, which would produce eggs enough from which you could probably market 6,000 ducks, at, say, from fifteen to twenty cents apiece profit — or it could be used as a fattening pen for fattening ducks. I think 2,000 can be handled in that building in a season, in a year, and from those 2,000, judging from the market profits, $400 should be derived.” William Nicholson, another witness, places the damages at from $8,000 to $10,000. His estimate was based upon the fact that the defendant company destroyed the best duck pen on the promises, in which 2,000 ducks could be raised for the market in a season and that would decrease the capacity of the farm to that extent. His estimate was fixed by allowing twenty cents profit on each duck raised.

At the close of the case, the defendant’s counsel moved to strike out that part of the testimony of the above witnesses relating to the value placed by them on the injuiy done to the plaintiff’s property, but the motion was denied. The testimony discloses the fact that the witnesses arrived at their conclusion as to the damages sustained by the plaintiff on an erroneous basis. Their estimates were made upon the profits which they thought the plaintiff would derive from the duclr-raising business. Such basis was entirely too uncertain and speculative to permit it to enter into any calculation or estimate of the damages which the plaintiff sustained by reason of the construction of the defendant’s road through his premises. In speaking of the manner of estimating the value of land in eminent domain cases by considering the profits realized therefrom, Mr. Justice Williams in Reading & Pottsville Railroad Co. v. Balthaser, 126 Pa. 1, said (p. 10) : “We held (on a former appeal of the same case) that such a method for fixing the value of the land was speculative, and could not be applied to land taken b}^ virtue of the right of eminent domain. It involves an uncertain estimate of the quantity and quality of the stone, includes necessarily the use of labor and capital, requires skill and intelligent supervision on the part of the operator, and vigilence and success in the financial management. No human tnind can foresee the presence of these elements of business success, or forecast the profit or loss of actual operations, if the stone be removed at the ordinary rate of quarrying.” We are clearly of opinion that the defendant’s motion should have been allowed and that the estimates of the witnesses as to the value of the plaintiff’s land and the damages suffered by the construction of the road through it should have been struck from the record.

The court did not err in excluding the map offered in evidence by the defendant company. It was not shown to be a correct representation of the ground taken nor of the buildings affected; on the other hand, it appeared by the testimony of the party who made it that he did not have the data from which he could make an accurate map. In the trial of cases of this character, there should be a map of the locus in quo, as it aids most materially the court as well as the jury in the consideration of the case. From the evidence before us, it is difficult to determine the location of the spring or the buildings or the course of the stream with reference to the strip of land condemned.

The offer by the defendant to show that the use of the plaintiff’s land as a duck farm would pollute the stream passing through it and thereby prevent the use of the land for that purpose, was properly rejected as raising a collateral issue which could not be determined in this case. Whether the lower riparian owners would object to such use of the land was uncertain and purely speculative; and if they did, non constat that the objection could not, at small expense, be removed. At all events, the defendant company is not in a position to assert the rights of the lower riparian owners who alone have an action against the plaintiff here for any injury which they may sustain by an interference with the purity or flow of the stream.

The eighth assignment must be sustained notwithstanding the attempt to cure the error in the general charge. The plaintiff had the right, as we have held, to show that his farm was adapted to the use of and was valuable for duck raising, but he could not show the average number of ducks he raised on the farm each year. While in one sense such testimony would show the productive capacity of the farm per year, it would also afford the jury an opportunity to estimate the profits of the land. The plaintiff could show by competent testimony the acreage of his land and also its adaptability for the duck business by reason of its location, water, etc., which the jury was required to consider as an element of value; but when he was permitted to show that he produced from 45,000 to 50,000 ducks per year it furnished the jury the data from which it could and doubtless did ascertain the profits of the business which it used as a basis in determining the market value of the plaintiff’s property. The number of ducks the plaintiff may produce on the land in the future depends upon so many contingencies that any estimate thereof would be purely spec< ulative and should not go to the jury even as evidence of the productive capacity of the farm.

The assignments of error are sustained so far as the matters complained of therein are in conflict with the views above expressed and the judgment is reversed with a venire facias de novo.