New Castle & Franklin Railroad v. McChesney

Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

In building their road, the New Castle and Eranklin Railroad . Company, the defendants below, carried it across Mill street in the city of New Castle. The track, extending from a south-westwardly direction, struck the western boundary of the street near the corner of a lot belonging to the plaintiffs, and crossed it diagonally and in a curved line in front of the house standing on the lot. The effect of the construction of the railroad was to impede the channel of a watercourse that ran past the property of the plaintiffs. The lot was near a piece of swampy ground which was drained off in a north-eastwardly direction, and the railroad embankment obstructed the flow of the water, and flooded it back into the cellar of the house. How much of the mischief complained of resulted from the work done on the street did not precisely appear. The plaintiffs were permitted, under exception, to give evidence of the consequences produced by the embankment on the land adjacent to the street on the south-westwardly side of it, as well as on the line of the street itself. And all the facts tending to show the connection between the entire embankment and the obstruction of the watercourse, were submitted as elements to be considered by the jury in the ascertainment of the damages. In their first, second and fifth points, the defendants asked the court, in substance, to charge that the plaintiffs could not recover for injuries caused by the construction of that part of the railroad which was outside of the street line. The instruction asked for was refused, and the admission of the evidence and the answers to the points have been made the subjects of the first, third, fourth and fifth assignments of error.

It may be assumed, under the verdict which the jury rendered, that to some extent, at least, the plaintiffs were injured by the obstruction of the watercourse, although, as the cause was tried, the recovery may have been rested on other grounds. But it may also be assumed that some portion of the amount of damages awarded was compensation for consequences resulting from the embankment built across the swamp before the line of the street was reached. While for such consequences the plaintiffs could perhaps resort to an action at common law, they were not entitled to redress in the form they adopted. ' This is a statutory proceeding under the third proviso of the 10th sect, of the Act of the 19th of February 1849, which declares that “ whenever any company shall locate its road '•■-in and upon any road or alley in any city or borough, ample compensation shall be made to the owners'of lots fronting upon such street or alley for any damages they may sustain by reason of any excavation or embankment made in the construction of such road.” However injurious the effect of the company’s structures might be, if neither the street nor the property of the plaintiffs had been touched, the statute could give the plaintiffs no relief. It was for mischiefs arising from an excavation or embankment within the boundaries of a public highway, by which the value of private property would be impaired, that the legislature intended to provide. The Act of 1849 cannot be carried by intendment beyond the purpose' it expressed. No remedies in statutory form can be asserted, and no remedies at common law can be defeated, by implication from its terms. So far as the property of the plaintiffs was damaged by the railroad embankment within the lines of the street, they had the right to compensation. With the consequences produced by work outside those lines, the court and jury in this proceeding had nothing to do.

In their sixth point the defendant asked instructions that “ for any depreciation in the value of plaintiffs’ lot by reason of danger to persons or property from passing trains, danger of fire from locomotives, increase of rates of insurance, the noise, smoke, soot, jarring, and other inconveniences from passing trains, the plaintiffs are not entitled to recover.” The point was refused, and in the general charge the jury were directed carefully to consider the advantages and disadvantages resulting from the construction of the railroad, “and apply it all to ascertaining and fixing the open market value of the plaintiffs’ property, house and lot before the defendant built and operated the road complained of, as it was then unaffected in any way by the road, and the market value of the property after the defendant built and operated its road, and as affected by such building and operation.” The measure of compensation was stated to be the amount of depreciation caused by “ the construction and operation of defendant’s railroad, where and as it is constructed and operated.” The same language was used in several other instances in the course of the charge, and was repeated in the answer to the first point of the defendants. A glance at the testimony is sufficient to show the mischief this submission of the effect of the “ operation” of the road was capable of working. One witness, Henry Wagner, said: “In estimating damages, I consider the cars might run off the track and through the house; the noise and smoke, and increased price of insurance make part of the damage; also that the cellar is damp, and water can’t get off. Can’t tell whether the road would do any damage independent of the running of trains.” Margaret McChesney attributed the depreciation in the value of the property to “ danger of fire, the smoke, noise, jarring of the house, and the water in the cellar.” A. S. Wagner stated his opinion in substantially similar terms. Joseph Kissick testified: “I don’t take the water into consideration; all the cellars along there will have water in them. I take into consideration the noise and smoke of cars, and the running of trains.” The testimony seems to have been received without objection, and may have been elicited on cross-examination ; but the defendant had the right to ask the exclusion of the effects of the operation of the railroad from the deliberations of the jury nevertheless. The subject-matter of legitimate inquiry was the extent of the damage caused to the plaintiffs by the embankment made by the defendant in Mill street. The liability of a railroad company was expressly limited to cases in which an “ excavation” or an “ embankment” should.be made in the course of “ the construction of their road.” If the track had conformed to the grade line of the street, the plaintiffs would have had no remedy at all, for the statute would have had no application. It is well settled, even under more comprehensive legislation than this, that contingent disadvantages cannot be taken into account as a substantive claim for damages: Searle v. The Lackawanna and Bloomsburg Railroad Company, 9 Casey 57. In the tenth section, of the Act of 1849, as was said by Mr. Justice Lowrie, in The Lehigh Valley Railroad Co. v. Lazarus, 4 Casey 203, in speaking of that company’s charter, the legislature intended to provide for all real damages and nothing more. In consequence of the hurry of the trial in the Common Pleas, perhaps, or possibly from inadequate presentation, the principles applicable to the questions which this cause presented were misconceived, and it must go back to be tried again. Judgment reversed, and venire de novo awarded.

Mercur, J., dissents.