Cox v. Pennsylvania Co.

Opinion by

Mr. Justice Frazer,

Plaintiffs sued to recover damages for land appropriated by defendant for the purpose of widening its roadway. The principal controversy relates to the measure of damages, as to which the evidence is widely at variance and, in view of the testimony, the verdict is not excessive and must be sustained, unless based on improper evidence.

The land taken consisted of two triangular pieces, one on each side of defendant’s tracks and a part of a tract known for many years as “The Phillips Farm,” lying on the west side of the Beaver river and traversed by defendant’s railroad, which runs approximately parallel with the river. Between the railroad and the river is a part of the farm, varying in width, containing about fourteen and one-half acres, and extending to low-water mark. This portion was connected by a grade-crossing with the main property lying on the west side of the railroad and upon which the farm buildings are located. The land had been used for farming purposes for many years; a part, however, had been laid out by the owner in building lots, a number of which were sold, while the remaining portion continued to be used for farming purposes, without reference to lines of the plotted lots. Numerous dwellings and othér buildings have been erected by purchasers of the lots; the streets, however,. have not been actually opened or accepted by the public authorities. The original right-of-way of the railroad, sixty-six feet in width, was obtained by conveyance from an earlier owner of the property. Appellant claims the court was in error in holding that neither such conveyance nor the laying out of part of the land in building lots and the sale of a number of them, in view of the continued'use of the remainder of the property on both sides of the railroad as farm land, operated as a severance necessitating the assessment of the property as building lots, and that plaintiffs’ damages should be based on a consideration of the market value of the remaining property as a whole for building lots or any purpose to which it might reasonably be put. In thus charging there was no error: Potts v. Penna. S. V. R. R., 119 Pa. 278-285; Scott v. Donora Southern R. R., 222 Pa. 634; Baker v. Penna. R. R., 236 Pa. 479.

Appellant also contends the court committed error in permitting the jury to consider the value of the water frontage of the land as possible sites for factories, for the reason the deeds to plaintiffs gave courses and distances and referred to monuments instead of referring to the river as the east boundary line. The land was originally a part of lots Nos. 28 and 29 of the “First District of Donation Lands” conveyed to a predecessor in title by the Commonwealth, the plan of which showed Beaver creek as its east line, and it appears from the testimony that, as a matter of fact, plaintiffs and Ephraim Phillips, through whom they claim, had been in actual adverse possession of the river bank since the purchase of the farm in 1865, and, during that time, had exercised acts of ownership over that part of the property, had used the river for various purposes in connection with the farm and otherwise, and planted a row of willow trees along the bank of the river to protect the land from washing. There was no denial, of this and the jury was properly permitted to consider the value of riparian rights in determining the question of damages.

Appellant further complains of the action of the. trial judge in permitting the jury to allow damages for delay in payment and in refusing to affirm without qualification defendant’s point to the effect that if the difference between the amount of plaintiffs’ claim and the damages actually awarded by the jury “was an extortionate and inordinate, demand” defendant was justified in refusing to pay, and the jury should not allow damages because of the delay. The court affirmed this with the qualification that it was for the jury to say whether extortionate or unreasonable demands had been made by plaintiffs at the time of the appropriation of the land. This qualification was proper and as we find no evidence of defendant having made an offer of compensation which was refused by plaintiffs, or that negotiations were had at any time between the parties for the purpose of' settlement,, plaintiff is prima facie entitled to damages for delay in payment, the burden being on defendant to show facts tending to excuse delay: Wayne v. Penna. R. R., 231 Pa. 512; Hoffman v. Philadelphia, 250 Pa. 1.

Finally, the standing of plaintiffs to maintain this action is questioned by defendant, in view of the provision in the will of Ephraim Phillips in which he directs his executors “if deemed best by them to sell town lots and convey land for public works,” it being argued this clause operated as a conversion of the property, and, consequently, the proceeds are distributable as personalty and go to the personal representatives and not to plaintiffs as heirs. The clause in question is not an express direction to sell, however, but merely a discretionary power vested in the executors which, under the' rule stated in numerous decisions, does not work a conversion unless and until the power is exercised by them: Chamberlain’s Est., 257 Pa. 113, and cases there cited.

The judgment is affirmed.