Baker v. Pennsylvania Railroad

Opinion by

Me. Justice Elkin,

On account of refusing to admit offers of testimony relating to certain elements of damage, and in striking out all testimony admitted in which the witnesses fixed the amount of damages in dollars and cents, this judgment must be reversed and a new venire awarded. It will, therefore, only be necessary to indicate what elements of damages may be considered, and what may not, when the case is again tried. This is an action to recover compensation, commonly called damages, for land belonging to appellant and actually appropriated by the railroad company under the right of eminent domain. One of the controverted questions is whether in such a case smoke, noise, dust and dirt, resulting from the operation of trains, over the land taken, may be considered as elements of damage tending to depreciate the value of the remaining portion of the tract not appropriated. That such elements of damage may be considered in estimating the depreciation in market value has been squarely ruled by this court in those cases in which there was an actual taking of the land of the owner for a public use: Comstock v. Railway Co., 169 Pa. 582; Rudolph v. Railroad Co., 186 Pa. 541; Shano v. Bridge Co., 189 Pa. 245; Hamilton v. Railroad Co., 190 Pa. 51; Shuster v. Printing Telegraph Co., 34 Pa. Super. Ct., 513. In the application of this rule some confusion has arisen by attempting to apply the same measure of damages to cases in which the railroad tracks were laid upon a public street, already dedicated to a public use. In such cases an abutting property owner is only injured to the extent of the increased servitude, and must prove special injuries different in kind and degree from those suffered by the public generally. For this reason it has been held that smoke, noise, dust and dirt, which must necessarily affect all property holders abutting on the street, cannot be considered as an injury special to any particular owner so abutting. In this class of cases such elements of damage may not be considered, but a different rule applies where, as in the case at bar, there has been an actual taking in the first instance.

The first assignment of error, if we properly understand its import, must be sustained. The plaintiff was entitled to show the close proximity of the coal wharves and water tanks to his property, and the use made of them, so far as that use multiplied trains upon the land actually taken, and increased the noise, dirt and dust, resulting from the ordinary operation of the railroad thereon. These were proper elements of damage to be considered in estimating the depreciation in market value of the remaining portion of the tract not appropriated. This is what we understand the first point to mean, and when so understood, it should have been affirmed. Noise, smoke, dirt and dust, can only be considered as elements of damage when they come upon and directly injure the property of the owner whose land has been taken, but when such injuries depreciate the value of the remaining portion of the tract, it is competent for the complaining owner to prove them and for the jury to give them due consideration in arriving at a proper verdict. In the case at bar it is proper to show the increase of noise, smoke, dirt and dust upon the property of the plaintiff, resulting from the multiplication of trains on his land, occasioned by the location of the coal wharves and water tanks in close proximity thereto. In this connection it may be observed that it was entirely proper to show that the land of plaintiff was appropriated for the purpose of affording an approach to the coal wharves and as a part of that construction. If this be established in fact, then the coal wharves and the approaches thereto, could very properly be regarded as a single construction for a particular railroad use, and if so, all injuries directly resulting to the land oí plaintiff from the entire construction may be considered, although only part of that construction was actually located upon the land taken: Comstock v. Railway Co., supra.; Leard v. Railroad Co., 229 Pa. 475; White v. Railroad Co., 229 Pa. 480. Such injuries must be direct and positive to the land of the owner from which the appropriation was made, and not indirect and consequential. Consequential injuries, such as the unsightly appearance of the coal wharves, or of smoke, noise, dust and dirt, which affect the neighborhood generally but which do not come upon or directly injure the land taken or injured, have no place in estimating damages caused by the depreciation in value of the tract affected by the appropriation. Direct injuries only can be considered, not consequential.

Then, again, it is proper to remark that damages resulting from the operation of trains over the land formerly appropriated cannot be considered in this proceeding, and all such elements of damage must be excluded. The owner has already been compensated for these damages, and must not be permitted to again recover for the same injuries. The rights of the parties in this respect should be carefully guarded when the case is again tried. The owner can show increased injuries to his farm resulting from the new use of the land condemned, but cannot claim damages for which he has already been compensated.

We also are of opinion that the learned trial judge erred in striking out the testimony of all witnesses who estimated the value of the land in dollars and cents before and after the taking. With that testimony stricken out there was no basis upon which the jury could estimate the damages, and it is difficult to see how any proper verdict could have been returned fixing the compensation to which the plaintiff was entitled for the property taken and injured. But, as the case is again to be tried, it will not be necessary to discuss more in detail the effect of striking out this testimony. We have indicated what elements of damage can be considered at the new trial, and what cannot be, and this is all that is deemed necessary for present purposes.

We cannot agree with the contention of the learned counsel for appellee, that the depreciation in value to the entire tract cannot be shown because the turnpike cuts off the land taken from the main portion of the tract. The title to the farm is held as an entirety, and it has always been cultivated as one single tract. The location of the turnpike as a convenience to the public, did not affect the right of the land owner to use and enjoy his farm as an entirety. The fact that the land taken was separated by the public road from the remaining portion of the tract, if the testimony warranted such an inference, might very properly be considered by the jury in estimating the extent of the injury to the land not taken, but this at best would only tend to minimize the damages, and would not be a ground for refusing to consider such testimony at all.

Judgment reversed and a venire facias de novo awarded.