Shenango & Allegheny Railroad v. Braham

Mr. Justice Paxson

delivered the opinion of the court, January 6th 1876.

The third section of the Act of 9th April 1856, Pamph. L. 288, regulating appeals from the award of 'viewers appointed to assess damages for the taking of land for the construction of railroads, provides, that after appeal taken, either party may put the cause at issue, in the form directed by the court. This cause was put at issue as in an action of trespass quare clausum, fregit. The form of the issue was allowable under the Act of Assembly. It does not follow, however, that because the issue was formed in trespass, the defendants were trespassers, and it was error to try the cause upon his theory. The defendants were not trespassers. Their entry upon the land of the plaintiff was legal. They took the land in pursuance of an Act of Assembly authorizing such taking. We think, therefore, they have cause to complain of that portion of the charge of the court in which the jury were told that the defendants had committed a trespass upon the property of the plaintiff. The natural tendency of such an instruction ivas to inflame the minds of the jury and to enhance the damages.

But the learned judge of the court below fell into a more serious error in his instructions to the jury upon the measure of damages. They were told that in considering and comparing the advantages and disadvantages of the defendants’ road to the plaintiff, they were to regard only such as resulted to him as a farmer, and to his land as a farm. This idea runs through the entire charge, and appears in the second and each of. the subsequent specifications of error.

We regard the rule as laid down by the court below as too narrow. In one of the early cases upon this subject (Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411), it was held by this court, that the jury “ should consider the matter just as if they were called upon 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 measure of compensation.” This rule has been followed in the Penna. Railroad Co. v. Heister, 8 Barr 450 ; Searle v. Lackawanna and Bloomsburg Railroad Co., 9 Casey 57; Patten v. Northern Central Railroad Co., Id. 426; Watson v. Connellsville Railroad Co., 1 Wright 469; East Penna. Railroad Co. v. Hottenstine, 11 Wright 28; Harvey v. L. & B. Railroad Co., Id. 429 ; Hornstein v. Atlantic & G. Railroad Co., 1 P. F. Smith 87, as well as several cases decided last year, and not yet reported. In none of these cases is there any authority for the doctrine that the value of the land is to be limited to. or measured, by a particular use. The contrary was asserted in the Schuylkill Nav. Co. v. Thoburn, where it was said by Tilghman, C. J.: “ The uncertainty of the business the plaintiffs will be engaged in, and the uncertainty of the profits of the business, is a reason for excluding particular use. Indeed, the use of the land is a collateral consideration.”

It was the market value of the land before and after the alleged injury which the jury were to consider, not the value of the farm as a farm. The word “ farm” is employed merely to designate the use to which the land has been applied by the owner. The particular use, as was remarked by Chief Justice Tilghman, is a mere collateral consideration. In estimating the market value of the land everything which gives it intrinsic value is a proper element for consideration. Land may be applied to various purposes and possesses value for distinct objects. It may be devoted to agriculture ; improved by the erection of buildings or the opening of mines; or it may be adorned for the sole object of contributing to the pleasure or gratifying the taste of the owner. The construction of a railroad through it might utterly destroy its value for some purposes, and yet greatly increase it for others. It is its general market value for any purpose that will induce persons to purchase, which is the true test.

Judgment reversed, and a venire facias de novo awarded.