Jones v. Erie & Wyoming Valley R. R. , 151 Pa. 30 ( 1892 )

Opinion by

Mb. Justice Williams,

This appeal presents several important questions. One of these does not seem to have arisen heretofore in this state. In New York and some other of our sister states it has been considered and decided; but these decisions are influenced by the legislation peculiar to the jurisdiction in which they have been made, and are not as helpful as under other circumstances they might be. In the case now before us we have the following facts : The plaintiff, Jones, is the owner of a piece of land lying in the northeast corner made by the crossing at right angles of Washington avenue and New street in the city of Scranton. His front upon Washington avenue is sixty-three feet, and upon New street ninety-five feet. In the corner standing back a few feet from the streets he has a double dwelling-house, and he has one or more dwelling-houses further out New street. The southeast corner, which is directly across Washington avenue from the plaintiff’s double house, is owned by the defendant company, as is the northwest corner which is directly across New street. On each of these corners it has erected a substantial stone abutment about twenty feet high, upon which it supports an iron bridge eighteen feet wide, that spans the intersection of the streets below in a diagonal direction. This bridge is an overhead crossing for the defendant’s line of railroad, and the tracks upon it are about twenty-three feet above the surface of the streets below. The centre of the bridge is about twenty-seven feet from the corner of plaintiff’s lot and about forty feet from the nearest corner of his double dwelling-house. The right of way of the railroad company as the law would define it would reach over upon the corner of the lot about three feet and overhang a triangular piece of ground beyond the street, lines having that depth at the corner. The defendant has however released its right to this corner and defined the extent of its right of way so as to exclude therefrom any portion of the plaintiff’s land outside the streets over which its bridge is suspended. The situation of the plaintiff’s land and double dwelling-house, of the defendant’s abutments, bridge and right of way as now defined, and of the streets, is shown by the diagram on the following page.

After the overhead crossing was completed and occupied by the defendant, this suit was brought to recover consequential damages which he alleges he has sustained by reason of the construction and use of it. The defendant denies the right to a recovery, alleging, first, that it has taken, injured or destroyed no portion of the plaintiff’s property in the construction of its crossing; and, next, that it has a clear legal right to operate its line of road in the manner contemplated by its charter and commonly employed by railroad companies without liability therefor.

The first of these positions makes it necessary to inquire into the nature and extent of the title which the defendant acquired in these public streets by virtue of its charter, and the consent of the city of Scranton to construct an overhead crossing at this uoint. It is well understood that when the state enters upon the land of a private owner by virtue of its right of eminent domain for the purpose of laying out a public

highway, it acquires an easement in and upon the land so entered for the purpose of public travel. The injury, if any, which the owner suffers is estimated in damages and compensation is made him. The highway so opened passes under the care of the municipal division of the state in which it is located. The fee remains in the former owner but is bound by the servitude which the entry by the commonwealth imposed, so that the owner cannot interfere with the free use by the public of the land appropriated to the highway; nor can he assert his title to, or exercise any control over, such land in hostility to the public use or easement. The title to the highway is in the commonwealth as the representative of that portion of her citizens interested in its use. The duty to maintain it and to protect the public in its use rests on the municipality. The public easement is broad enough to include the various modes of travel in common use, and to admit such new and improved modes as the public may adopt; subject only to this necessary limitation that the new modes adopted must not be destructive of, or inconsistent with, the use of the highway for the purposes and in the -manner, for which it was intended; nor with the municipal control over it.

Now when the commonwealth authorizes the construction of a railroad upon a line which makes it necessary to cross one or more public highways, it authorizes its grantee by a necessary implication to enter and use such highways for such purpose. This grant is however subject to two limitations; one in favor of the public, as already stated, for the preservation of the way; the other in favor of the owner, which requires that no additional servitude shall be imposed upon the land covered by the public easement. If the first, limitation be violated so that the way is lost to the public, another must be provided to take its place. If the second be violated so that the owner is subjected to new and additional burdens he is entitled to compensation for the injury actually sustained. It follows, that the railroad company desiring to cross the streets of a city must apply to the city for leave, and for the conditions deemed necessary to secure the public convenience and safety. This being done, the railroad company may lawfully enter upon and cross a public highway without liability, so long as it complies with the terms imposed by the municipality, and keeps within the limits already stated: Struthers v. Dunkirk & Warren Railroad Company, 87 Pa. 282; Snyder v. The Pennsylvania Railroad Company, 55 Pa. 340; The Railroad Company v. Speer, 56 Pa. 325. If it exceeds these limits and imposes a new servitude on the land occupied by the public easement the owner is entitled to compensation, and under some circumstances may recover the land itself. In Phillips v. The Dunkirk & Warren Railroad Company, 78 Pa. 177, the track of the railroad had been located upon a public road and occupied it longitudinally for some considerable distance.

The easement of the public for purposes of travel was thus rendered useless and the way abandoned in consequence. A new road was built by the railroad company to take its place which was accepted and used by the public and the occupancy of the highway was thus settled for so far as the public was concerned. After this was done, the owner of a farm, lying along one side of the road, so abandoned to the railroad company, brought an action of ejectment against the company to recover a strip of land representing one half of the land covered by the highway as it was opened and- traveled before the railroad took possession of it. He was allowed to recover. He owned to the centre of the road, subject to the public easement. The railroad company entered under the protection of that easement, but, once in possession, its use soon became inconsistent with and destructive of the easement so that the public was compelled to abandon it. The land was thus relieved from the burden imposed by the highway and the owner was at liberty to assert his title against any one found in possession.

But it is not necessary that the public easement should be destroyed to enable the owner to recover for an additional servitude imposed upon his land. Among the more recent of the cases in which this doctrine has been recognized and applied are Duncan v. The Pennsylvania Railroad Company, 111 Pa. 354; The Railroad Company v. Walsh and others, 124 Pa. 544; Ziemer v. The Railroad Company, 124 Pa. 560. In Walsh’s case and in Duncan’s case the ground of recovery was that the railroad, while wholly within a public street, was so located as to interfere with access to the plaintiff’s buildings and practically cut them off from the highway. In Zeimer’s case the railroad was upon the street but it was so constructed as to obstruct the drainage from his premises. In each ease a new servitude had been imposed upon the land occupied by the street, which injuriously affected the adjacent owner by interfering with the access to or drainage from his property; and for the injury sustained by reason of such additional servitude he was allowed to recover damages.

In the case before us we have a new state of facts. The defendant entered upon the intersection of Washington avenue and New street by virtue of the implied permission afforded by its charter, and the express permission of the city of Scranton.

But, as we have seen, the permission of the city may be conditioned upon the compliance by the railroad company with such terms as may be deemed necessary to protect the public in its use of the streets. / A crossing at grade has come to be regarded as dangerous to the public. Municipal governments now very generally refuse permission to make them where it is reasonably practicable to make the crossing underground or overhead. In this case the city of Scranton required, at least it authorized, the crossing by means of an overhead bridge. The street over which it had control was upon the surface, but the easement for public travel affected the underlying strata by imposing upon them a servitude to the surface for the support of the way. It affected the open space overhead by imposing a servitude for the supply of air and light to the public while using the way. The owner of the surface upon which the way was opened could neither undermine nor overhang it without municipal consent, for the servitude imposed by the existence of the highway follows his title upward and downward from the surface so far as may be necessary for the safety and convenience of the public ; and the owner is precluded from the exercise of acts of ownership in hostility to or inconsistent with the servitude so imposed. The permission of the municipality to cross or enter upon one of its streets, whether upon the surface or above or below it, is an authority to the grantee to enter within the limits affected by the public easement and in subordination to it. The grantee may lawfully enter under this permission, but his rights are subject to the same limitations that have been already pointed out. He must impose no new servitude upon the land. If he does he takes not only what the municipality had to grant but he takes from the owner in addition. In such case, as we have seen by the cases already cited, the owner is entitled to compensation for the new servitude to which he is subjected.

The defendant has not disturbed the public easement of travel for it carries its railway and its trains twenty-three feet above the surface of the streets ; and so far as its bridge overhangs the way the city has authorized it to be done. The public have therefore no ground for complaint; but the question remains whether this overhead crossing imposes a new servitude on the surface which is injurious to the plaintiff’s property. This crossing is in effect a new and distinct way. It is suspended over that which the public occupy on the surface. The public has no right in it, but one who goes upon it without the consent of the defendant is a trespasser. It is built for the exclusive use of the defendant corporation in the movement of its trains, by means of locomotive engines. It invades space which belongs to the plaintiff subject to the servitude which the existence of the way upon the surface imposes. If the streets should be abandoned by the public or vacated by a decree of the court of quarter sessions, this structure would remain unaffected thereby. The extinguishment of the public easement would remit the plaintiff to all his rights as an owner, but he could not exercise them. If he should attempt to build upon his land, the bridge would intercept his operations. These facts are not denied and their legal value may be determined by the courts. They show the imposition of a new servitude upon the surface for the exclusive benefit of the defendant. The plaintiff’s property is in the built-up part of a growing city. The possibility of the vacation of these streets may be so remote as not to be worth considering; but the extent to which the new servitude really injures the property is a question for the consideration of the jury.

This brings us to the question of the measure of damages. The plaintiff’s declaration as filed contained two counts. One of these charged a trespass quare clausum fregit. The other proceeded upon the theory that consequential damages were alone recoverable, and claimed that these were the result of the construction of the abutments, of the construction of the bridge, and of the operation of the defendant’s railroad upon and over the bridge. The first count was abandoned at the trial, and the plaintiff rested his right to recover on the second. He claimed that the erection of the abutments and of the bridge excluded light and air from his premises; that the operation of the railroad made great noise, confusion, dust and smoke, and exposed his premises to danger from fire, thereby affecting the comfort and security of the double dwelling-house; and that the construction and operation of the railroad over the elevated crossing obstructed the streets and made the approach to his premises difficult and dangerous. All the questions thus raised were allowed to go to the jury and the verdict affords reason to think that they were all considered in making up its amount. But the abutments were not in the highway. They were built on the land of the defendant and were lawful structures. The plaintiff may have preferred that dwellings should have been erected on these lots, and his own property may have been rendered less desirable and less valuable because of the use the defendant made of them; but the plaintiff had no cause of action on that account. So far therefore as the depreciation in the value of his property is due to the absence of dwellings on these lots and to the presence of the solid stone abutments that face the double dwelling on both fronts, the jury should have been told to disregard it.

The alleged obstruction to access to the plaintiff’s premises was not supported in the least degree by the evidence. There was in fact no pretence that any obstruction existed in the streets or on the surface; but it was alleged on the trial that horses might take fright at the passage of trains over the bridge twenty-three feet above the surface, and that persons who would otherwise come to the plaintiff’s double dwelling with wagons or carriages might be deterred from coming by fear that their horses would be frightened by trains on the overhead crossing and become unmanageable. This is not an obstruction to access. It is too well settled to need a citation of authorities that mere exposure to noise, smoke, dust, and the danger of horses becoming frightened by a moving train is not an actionable injury. Such an exposure is an inconvenience, and sometimes a source of danger, to all persons who live near a railroad, or who have occasion to travel along a street that is crossed by one. Such an inconvenience or danger is common to many persons but special to none. It may be greater to those who live or do business near the line of the road, but it affects all who have occasion to come near it, or pass along it, or over or under it. It is the same in kind, though greater in degree, as the inconvenience arising from the noise, confusion and dust incident to travel upon a paved street or a common highway. It is the necessary result of the lawful operation of a railroad and part of the price paid by society for the inceased speed and convenience in the transportation of persons and property which it affords. This subject should have been withdrawn from the jury. There was no actionable interference with access to plaintiff’s property.

It is urged that the new constitution requires a different holding and that Duncan v. The Railroad and the cases following it have so determined. We do not think so. The constitution makes the person or corporation exercising the right of eminent domain liable to make “ just compensation for property taken, injured or destroyed by the construction or enlargement of their works.” Property is “ taken ” by an entry upon and an appropriation of it as in the ordinary case of location. It is “ injured ” by obstructing access, as in Duncan’s case, or drainage as in Zeimer’s case. It is destroyed, although not touched directly, when the result of construction is to pre- ' vent its use, as in Koons v. The Monongahela Navigation Company. The injury results in these cases from the construction of the works of the corporation. But in the case, of 9, valuable country hotel, the business of which was destroyed, by the change of travel from wagons to trains as the result of the operation of a railroad, the plaintiff was held to be remediless although the value of his property was destroyed. In many instances business has been diverted from towns and villages and the value of property therein seriously impaired as a result of the operation of a railroad through or near them, but the owners of such property have no cause of action against the railroad company on that account.

' The expression of the Chief Justice in Walsh’s case on which so much reliance seems to be put was intended to express, and we think does clearly express, a very different thought. The injury complained of in that case was an obstruction in the way of access to the building. The building was upon a street corner. The tracks of the railroad were laid close to the curbstone on one of the streets on which the building fronted, and directly across the other. The defence was that the rails were laid on the same grade with the pavement and that the pavement had been relaid with belgian blocks between the rails and on each side of the track, so that the railroad presented no obstruction to the use of the street for carriages. We said in reply that the word construction included not only the movement of earth, and the laying down of rails upon a road-bed, but the character and purpose of the structure. Two parallel iron rails, in themselves considered, might present little or no obstacle in the way of access to the building; but the structure was a railroad, built for the purpose of moving trains of cars by means of locomotive engines; and whether it obstructed access or not, depended, not merely on the position of the rails, but also upon the use for which they were intended. Not to take the use of the rails into consideration the Chief Justice well said would be to take too narrow a view of the constitutional provision. The business authorized by the charter of a railroad corporation is the carriage of persons and goods. The work of construction is provided for as an indispensable preliminary. A road must be built before it can be operated. The manner and the purpose of construction are to be considered in determining questions relating to damages ; but in the operation of its road a company is liable only for negligence or malice. Smoke, dust and noise are the usual, and, in the present state of knowledge on the subject, the necessary consequences of the use of steam and the movement of trains, just as noise and dust are the consequences of the movement of drays and carts over an ordinary highway. The resulting inconvenience and discomfort are in both cases damnum, absque injuria: Lippincott v. The Pennsylvania Railroad, 116 Pa. 472; Marchant v. The Railroad Company, 119 Pa. 541.

We are thus brought to the conclusion that the plaintiff’s cause of action rests on the new servitude imposed by the construction of the overhead crossing, and the damage he sustains in consequence. The company had the right under its charter, and the municipal consent, to enter and cross the highway without liability to the plaintiff, provided it could do so without subjecting his property to any servitude which the public easement then existing did not impose. But the elevated crossing overhanging so much of his land as is covered by the highway does, to some extent, impose an additional servitude upon his property. While the streets remain on the surface, the use of the space above them by the defendant docs not interfere with the plaintiff’s use of his property that is subject to the public easement; and the probability of the vacation of the streets in the built-up part of the city is so slight as scarcely to deserve consideration. But if this elevated crossing does to any appreciable extent exclude light and air from the double dwelling, or affect the value of his property by reason of any additional servitude imposed upon it, for the injury so sustained the plaintiff may recover, because such injury is the result of the construction of the defendant’s railroad.

Little need be said of the remaining assignments of error. Several of them are directed against the admission of witnesses to speak of the value of the plaintiff’s property and its depreciation. The appellant contends that expert testimony is needed to determine the value of city property, but we have not so held. The value of a house or a piece of ground is a subject upon which all persons familiar with the property who have formed an opinion are competent to speak. The value of their opinions will depend on the extent of their familiarity with surrounding property and the prices asked and paid for it, but this is for the jury to determine: The Canal and Railroad Co. v. Bunnell, 81 Pa. 414; Curtin v. The Nittany Valley Railroad Co., 135 Pa, 20. These assignments are not sustained.

The ninth assignment is to the action of the learned judge in submitting to the jury the question whether the overhead crossing presented an actual obstruction to access to the plaintiff’s property. There was no evidence of the existence of any such obstruction unless mere exposure to the danger of horses being frightened by passing trains twenty-three feet above the surface of the highway, was such an obstruction. As it is well settled by the cases already cited that it is not, the question should not have.been submitted.

Nor was the amount of the verdict to be fixed by a comparison of the value of the plaintiff’s property before the defendant’s railroad was built, and after. The occupation of the corners fronting his own across Washington avenue and New street may have affected the value of his property quite seriously. So might the erection of a brewery or a livery stable or a factory, upon the same corners ; but the plaintiff would have been without remedy. So the mere proximity of a railroad, with its burden of traffic, may render dwelling-houses less desirable, and diminish their market value, without imposing any liability on the railroad company for the loss sustained by their owners. The inquiry in this case should have been confined, as we have already seen, to the injury inflicted by means of the additional servitude imposed upon the plaintiff’s property by the defendant corporation. The building of abutments on its own land imposed no servitude on that of the plaiutiff. The mere proximity of its road so that the noise of passing trains could be heard, or the dust and smoke therefrom be noticeable, imposed no servitude. The only legal ground of complaint grows out of the overhanging of so much of the land to which the plaintiff has title as is occupied at the surface by the streets. This is a new servitude which, standing apart from all other considerations, except such as grow legitimately out of the character of the bridge and its effect upon the plaintiff’s dwelling and lot, constitutes the ground for a recovery. The question is, what has the defendant added to the public ' easdinent ? What new burden has it put upon the plaintiff’s property by overhanging the intersection with its bridge? The answer furnishes the correct measure of the plaintiff’s injury, and of his right to compensation.

The judgment of the court below is now reversed for the reasons given in the foregoing opinion, and a venire facias de novo awarded.