Penn. Schuyl. V. R. v. Ziemer

Opinion,

Me. Chief Justice Paxson :

This was an action brought in the court below against the railroad company by the widow and heirs of Samuel Ziemer, to recover damages for what are known as consequential injuries, resulting from the construction of defendant’s road.

The plaintiffs are the owners of a property situate on the corner of Canal and Bingaman streets, in the city of Reading. The road of the defendant company has been constructed at grade over the said Canal street, in front of plaintiffs’ property. The road takes a part of the pavement, and the track is within about twenty feet of one of the buildings, and it was alleged interferes seriously with the drainage, besides rendering access to a portion of the property dangerous. The title of the plaintiffs below was acquired on June 11, 1884, by descent from Samuel Ziemer, who was the husband of Margaret Ziemer, and the father of jfche other plaintiffs. '

Upon the trial below the defendant offered to prove that the route for the construction of the said road was duly located and marked with construction stakes, prior to the time of the decease of the said Samuel Ziemer, and that, therefore, the action should have been brought by his personal representatives, and not by his widow and heirs. The court rejected this offer. See first assignment. We think the evidence was properly rejected. The action was for consequential injuries. There was no taking of any portion of the plaintiffs’ property. The plaintiffs’ ancestor was not injured by the setting of construction stakes in a public highway. They were not set on his property, nor was anything belonging to him taken or injured thereby. In such cases there can be no legal injury for the erection or construction until such erection or construction has commenced.^* The work might have been abandoned before a beginning had been made. In such case the property owner would have had no cause of action. There is no analogy between this case and the location of a railroad over a man’s land. In the latter instance the land has been taken and appropriated to public use; the right of the land-owner to sue for damages is complete, and he may recover for the location and for the subsequent construction: Wadhams v. Railroad Co., 42 Pa. 808; Beale v. Railroad Co., 86 Pa. 509.

The second assignment- is without merit. The defendant company offered to prove what they had paid to other property owners along the same street for the privilege of laying their tracks upon it. The damages which the plaintiffs had sustained could not be measured by such a standard as this. What particular owners were willing to accept, or had accepted, from the company by way of settlement or compromise, could not affect the plaintiffs. Aside from this, to render such testimony of any value the conditions must be shown to have been similar. This would involve as many issues before the jury as there were persons who had been settled with.

It is sufficient to say in answer to the fifth assignment that the learned judge below distinctly told the jury that they were not to allow compensation to the plaintiffs for any injury to the interests of tlieir tenants. There was no objection to the evidence offered upon this point, and we must assume the verdict -was only for damages to plaintiffs’ reversionary interest.

The portion of the charge referred to in the seventh assignment is technically inaccurate, although substantially correct. In cases of this kind interest is not allowed as interest, but it is usual to instruct the jury to increase the damages by that amount. In other words, interest is allowed as damages. If it were otherwise a person whose property has been taken, injured, or destroyed would not receive full satisfaction: Old Colony Railroad Co. v. Miller, 125 Mass. 1; Del. etc. R. Co. v. Burson, 61 Pa. 369.

The merits of this ease — that is to say, the right of the plaintiffs to recover for consequential injuries, is ruled by Railroad Company v. Walsh, just decided. It is unnecessary to go over the ground again in this opinion.

Judgment affirmed.

* Cf. Lafferty v. Railroad Co., ante, 297.